For parents going through a custody battle, having the information needed to prepare for hearings makes all the difference. The laws regarding child custody differ from state to state, so we’ve compiled 5 of the most common questions about child custody laws specific to New Mexico.
- How do New Mexico courts determine child custody?
New Mexico courts practice “child’s best interest” child custody laws, where determining parental rights and responsibilities are centered around what is best for the children involved. In order to determine how to and assign custody based on the best interest of the child, there are a number of factors that are considered, including but not limited to the child’s wishes regarding custody, history of domestic abuse, and wishes of the parents. These same 14 factors are used for every state child custody case to establish how custody will be carried out.
- Can parents decide child custody outside of a New Mexico court?
In New Mexico, child custody can absolutely be determined between the parents out of court. In fact, courts prefer for parents to co-parent and resolve these issues themselves when possible. Only in the event that a decision about child custody cannot be agreed upon is legal intervention required.
When established outside of court, a parenting plan is used. This is a court-enforceable contract between the parties seeking custody that defines the co-parenting relationship and the custody schedule that has been decided upon. Assuming that the parents can come to a conclusion without intervention, a parenting plan can be filed with the court, and a hearing is not necessary.
- Can I file my child custody case in New Mexico if I just moved here?
A custody case can be filed in New Mexico when New Mexico has jurisdiction over your child, which can be determined in several ways.
New Mexico can exercise jurisdiction over a child during a custody case if New Mexico is the Child’s “home state” when proceedings begin or if they lived in the state for at least 6 months immediately before the case was opened. Jurisdiction also applies if the child and at least one parent have significant ties to New Mexico beyond just physical presence, such as, if substantial family relationships with the child reside in the state. Also, If other state courts have declined jurisdiction and New Mexico is the most appropriate forum, then jurisdiction can apply. If the state of New Mexico holds jurisdiction over the child for any of these reasons, then you can file for child custody in the state, even if you just moved there.
- Can my child decide which parent they want to live with?
In New Mexico, a child’s wishes and concerns regarding child custody are always considered, but the older the child, the more heavily the child’s wishes will be considered when compared to other factors used to determine custody.
If a child is 14 or older, the court must consider the child’s wishes, but this does not mean the court will necessarily follow the child’s wishes if they aren’t deemed to be the best for the child. So, a child may not decide which parent they want to live with, but they are allowed to share their wishes in regards to custody and have their desires play a part in the decision. As the child gets older, these wishes will play a larger role in the determination.
- Can the parent with primary custody move away with the children?
Parents themselves have a constitutional right to travel or relocate, but they do not have the right to remove children from their home state of New Mexico without the permission of the court or other parent. Even if custody has never been established by the court or a parent has full custody, obtaining permission is the best practice. Failure to receive this permission could result in the parent being court-ordered to return to New Mexico with the child. In the eyes of the court, this could have a negative impact on the child and affect future proceedings. If a parent desires to relocate with their child out of state, they must demonstrate to the court that the move is in the child’s best interest.
This is a brief overview of some of the aspects of child custody laws in New Mexico that can be confusing and overwhelming. These laws are complicated and intricate, and having experienced legal assistance in understanding these laws and what they could mean is vital. If you have questions about child custody in New Mexico or a case-specific to you, contact Tucker, Yoder, and Associates for help.
DISCLAIMER: The information on this blog/site is NOT, nor is it intended to be, legal advice. It is for general informational use only. You should consult an attorney for advice regarding your individual situation. Further, this information does not create an attorney-client relationship.