Child custody in New Mexico can be a difficult concept. There are two types of "custody" that a court may award a parent. The first is "legal custody." Legal custody dictates which parent may make decisions about the child's life. The second type of custody is "physical custody." Physical custody determines where the child lives, for how long and what the respective parents' visitation rights are.
New Mexico is one of the few states where the courts presume that the parents should share "joint custody" of the child. This means the parents each have legal custody over the child. When parents agree about the child's physical custody, they may create a parenting plan. The parenting plan provides for where the child lives, for how long and what the other physical custodial arrangement will be.
If the parents dispute who should have legal or physical custody of the child, then they must have a New Mexico Court decide the custodial issues. Courts apply New Mexico custody laws, which are subject to change, when deciding which parent gets custody of the child.
While New Mexico courts have a presumption in favor of joint legal custody, the standard for making decisions on custody issues in New Mexico is the "best interest of the child." That means courts will not automatically award joint custody. If the court determines that it is not in the child's best interest to award joint custody, then they will not do so.
When determining what is in the best interest of the child, New Mexico courts look to several factors. One factor is the relationship with the parent, siblings or other significant family members. The parent's cohabitation situation can affect this factor. In other words, if the father's cohabitates with a new wife or girlfriend who does not get along with the child, that could negatively affect the father's ability to obtain custody. Other factors include the wishes of the parents, the child's wishes, the child's adjustment to each parents home, school and community and the mental and physical health of all involved parties.
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