Sole custody is when an order of the court awards custody of a child to one parent.¹ When each parent wants sole custody, one of the factors the judge will consider is which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent, without intrusion.² You can read about the other factors a judge will consider when deciding custody in How will a judge make a decision about custody?

There is a preference for joint custody rather than sole custody in New Mexico.³

¹ N.M. Stat. § 40-4-9.1(L)(8)
² N.M. Stat. § 40-4-9.1(B)(4-5)
³ N.M. Stat. § 40-4-9.1(A)

A parenting plan is a document approved by the court when the court awards joint custody that sets out the responsibilities of each parent. Usually, a parenting plan will include:

• a division of the child’s time and care into periods of responsibility for each parent,
• statements regarding the child’s religion, education, child care, medical care, dental care, and recreational activities,
• designation of specific decision making responsibilities,
• ways for the parents to communicate with one another,
• transportation of the child,
• ways to make decisions in the future and resolve disputes, and
• other statements regarding the welfare of the child to help clarify the parenting plan and make it easier to follow.¹

¹ N.M. Stat. § 40-4-9.1(F)

Binding arbitration is an out-of-court proceeding in which parties agree to have one or more arbitrators hear specific issues within a custody, visitation, or time-sharing case. An arbitrator could be an experienced attorney or another licensed and experienced professional who is knowledgeable on custody issues. This is a voluntary process. However, once the parties agree to binding arbitration, they have to participate in the process and are bound to the order issued by the arbitrator. ¹

The judge would enforce the arbitrator’s order in the same way that s/he would enforce an order issued in court. A judge can only vacate an arbitrator’s order of custody, time-sharing, or visitation if s/he believes circumstances have changed so drastically that the order is no longer in the best interests of the child or will cause harm to the child.²

¹ N.M. Stat. § 40-4-7.2(A)(2), (B), (C), (D)
² N.M. Stat. § 40-4-7.2(R), (T)

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised, if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to NM Finding a Lawyer to seek out legal advice.

A parent who committed violence can get custody and/or visitation as long as certain protections are put in place.

One of the factors that a judge has to consider in New Mexico when deciding custody or visitation is whether the parent has committed abuse against the child, the other parent, or another household member. This decision about whether abuse was committed can be made by the judge in your custody case or by a judge in another case, such as a protection order case. In cases where the judge finds that abuse was committed, the custody or visitation order must clearly protect the abused child, other parent, or household member. However, it doesn’t necessarily mean that a parent who committed violence will be denied custody or visitation altogether.¹

¹ N.M. Stat. § 40-4-9.1(B)(9)

New Mexico has a “Grandparent’s Visitation Privileges” law that allows a grandparent to petition for visitation in certain circumstances. Under this law, a grandparent can petition for visitation if any of the following are true:

• the child’s parents are divorced and visitation would not interfere with the child’s education or the parent’s visitation;
• one or both of the child’s parents are deceased;
• the child is less than six years of age and lived with the grandparent for at least three months;
• the child is older than six years of age and lived with the grandparent for at least six months; or
• the child has been adopted by a relative, a person chosen in a deceased parent’s will, or a godparent.¹

When a grandparent files for visitation, a judge is allowed to order mediation to see if the parties might be able to work out an agreement for grandparent visitation.²

If an agreement is not worked out through mediation, the judge can grant visitation if the s/he decides that visitation with the grandparent is in the child’s best interest.³ To decide if the grandparent should have visitation rights, the judge has to asses:

• the best interests of the child;
• the prior interaction between the child and the grandparent;
• the past and present relationship between the parents and the grandparent;
• any visitation arrangements that were in place before the petition was filed;
• the effect the visitation will have on the child;
• whether the grandparent has any prior convictions for abuse or neglect; and
• if the grandparent has been a full-time caretaker for the child for a significant period.⁴

If the judge decides visitation is not in the child’s best interest and denies the request for visitation, s/he might still order some other reasonable form of contact like, mail, telephone, or some other means.³

¹ N.M. Stat. § 40-9-2(A)-(E)
² N.M. Stat. § 40-9-2(H)
³ N.M. Stat. § 40-9-2(I)
⁴ N.M. Stat. § 40-9-2(G)

When making a decision about custody of a child who is 14 years of age or older, a judge will consider the wishes of the child when deciding custody.¹

If a child is under 14 years of age, a judge will consider the best interests of the child. A judge will consider all relevant factors, including but not limited to:

• the wishes of the parents;
• the wishes of the child;
• the relationship the child has with his/her parents, siblings, and any other person significantly affecting the child’s best interests;
• the child’s adjustment to his/her home, school, and community; and
• the mental and physical health of the children and the parties involved.²

If the judge is going to consider the child’s wishes, whatever the age of the child, the child will testify in private, in the judge’s chambers, with only the judge, the child, and a court reporter present.³

In addition, New Mexico law prefers that parents share joint custody of children. When deciding whether joint custody is in the best interests of a child, the judge will consider:

• all of the factors mentioned above; and
• the following additional factors:
  
  • whether the child has a close relationship with each parent;
  • if each parent is able to provide adequate care for the child;
  • whether the parents are willing to accept all of the responsibilities of parenting, including picking up the child and dropping off the child as needed;
  • whether the child can maintain healthy relationships with both parents through consistent, meaningful contact;
  • whether the child’s development will benefit from contact with both parents;
  • whether each parent is able to allow the other parent to provide care for the child without interfering with his/her parenting time;
  • how suitable the parenting plan is to joint custody;
  • how far apart the parents live from one another;
  • whether the parents are willing to communicate and cooperate on issues that involve the child; and
  • whether a judge in this case or another case has made a determination that one of the parties seeking custody has committed domestic violence or child abuse against the other party, the child, or another household member.⁴

¹ N.M. Stat. § 40-4-9(B)
² N.M. Stat. § 40-4-9(A)
³ N.M. Stat. § 40-4-9(C)
⁴ N.M. Stat. § 40-4-9.1(B)

If you and the other parent make an agreement about temporary or final custody, it will be attached to and filed with the official petition for custody. You and the other parent might also make an agreement while the custody case is pending, The judge will generally enter an order that will grant whatever you and the other parent have agreed upon, unless the agreement is not in the child’s best interests.¹

¹ N.M. Stat. § 40-4-9.1(D)

You do not need a lawyer to file for custody. However, it may be difficult for you to file a proper petition and represent yourself in court without the help of a lawyer. Also, if the other parent has a lawyer, it will be particularly helpful if you have a lawyer as well. For legal referrals, go to NM Finding a Lawyer.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Both parents have a shared responsibility to support their children.¹ So, the parent who has a child under his/her care can request child support. You can find more information in our New Mexico Child Support section.

¹ N.M. Stat. § 40-15-4

Before you file for custody, you may consider making an agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a grandparent, go to Can grandparents get visitation? or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our New Mexico Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a protection order for domestic violence and get temporary custody as part of the protection order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

¹ N.M. Stat. § 40-12-5.1(A)
² N.M. Stat. § 40-12-5.1(C)

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

If you have a final custody order already in place, you can petition the judge to make changes to it (modify it) only if there has been a substantial change in circumstances since the custody order was issued. The judge may modify the custody order if, based on these new circumstances, s/he feels that the modification would be in the child’s best interests.¹

¹ N.M. Stat. § 40-4-9.1(A)

Generally, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights. However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.

Moving out of state, however, is a different story. When the parents have joint custody, and one of them wants to move out of state, the moving parent has to give the other parent 30 days’ written notice. The notice must state when the parent is going to move and where they are moving. If the other parent does not agree with the move, s/he may be able to file a petition with the court that issued the original order to ask that the other parent not be allowed to move, especially if the parent that is moving is the custodial parent.¹

New Mexico law provides a process for parents with joint custody to resolve disagreements about major life decisions, like moving to another state. As explained in What happens if I have joint custody with the other parent but we can’t agree about a major life decision?, parents can decide major life decisions by:

• agreement between the parties;
• using counseling or mediation services;
• having an arbitrator make a final, binding decision;
• deciding that only one parent or the other will have decision-making authority over that particular major decision area;
• ending joint custody and giving one parent sole custody;
• referring the dispute to a court master; or
• filing an action with the district court.²

¹ N.M. Stat. § 40-4-9.1(J)(4)(a)
² N.M. Stat. § 40-4-9.1(J)(5)

A domestic violence protection order granted by a court in New Mexico that awards custody and visitation (or support) is effective for a fixed term of six months. This term can be extended for another six months if the protected party (the petitioner) shows good cause for the extension. When the protection order expires, the custody provisions also expire.¹

If you currently have temporary custody through a protection order, you may want to talk to a lawyer about filing for custody so that you have a long-term custody order. You can find information about free and paid lawyers on our NM Finding a Lawyer page.

¹ N.M. Stat. § ​40-13-6(C)