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EspañolHow will a judge make a decision about custody?
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 the other parent and I make an agreement about custody, will the judge accept our agreement?
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)
Can I get temporary custody as part of my protection order (for domestic violence) against the other parent?
If you get a protection order due to domestic violence, the order may include temporary custody of your minor children. The protection order can order that the abuser has no contact with the children, or it can arrange for a way for the abuser to have some contact.1 Be sure to tell the judge that you want temporary custody during your protection order hearing so that the judge can take your request into consideration.
1 N.M. Stat. § 40-13-5(A)
Where can I file for child custody? Which state has jurisdiction?
Generally, you can file for custody only in the “home state” of the child. There are exceptions to the “home state” rule – see below.
The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than six months old, the “home state” is the state where the child has lived from birth. Temporary absence from the state does not change anything.
If you and your child recently moved to a new state, you usually cannot file for custody in that new state until you have lived there for at least six months. Until then, the other parent can start a custody action in the state where your child most recently lived for at least six months.1
There are exceptions to the “home state rule.” In some cases, you can file for custody in a state where the child and at least one parent have “significant connections,” and where there is evidence available about the child’s care, protection, training, and personal relationships. Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state decide the case (have jurisdiction).2 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this.
1 N.M. Stat. § 40-10A-201(a)(1)
2 N.M. Stat. § 40-10A-201(a)(2)
Do I need a lawyer?
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.
Do I have to go to mediation even if I am a domestic violence victim?
In New Mexico, if one of the parties tells the judge that domestic violence or child abuse has occurred, or if the judge thinks that it has occurred, then the judge does not have to order mediation. In situations where there is domestic violence, the judge can order mediation if:
- the domestic violence victim is the one who requests mediation and the mediator is informed of the domestic violence; or
- all of the following three things happen:
- the mediator has substantial training on domestic violence or child abuse;
- the victim is able to negotiate with the abuser without suffering from an imbalance of power as a result of the abuser; and
- the mediation process has safeguards in place to protect against an imbalance in power caused by abuse.1
1 N.M. Stat. § 40-4-8(B)(1)(a)-(b)
Can I get financial support for my children?
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
