FAQs – Custody & Visitation in New Mexico

Child holding parent's hand

What’s the Difference Between Custody and Visitation?

“Custody” addresses whether one or both parents have the power to make decisions about the child whereas “visitation” covers when the child will spends time in each parent’s care.

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What Does Joint Custody Mean?

Child custody means decision-making power, not when the children spend time with each parent. Parents most often receive joint legal custody in New Mexico. Joint custody means that each parent has the right and responsibility to participate in making the decision about five key areas of the child’s life such as:

  • Residence: If the child lives in New Mexico, then neither parent can move the child out of state or generally more than 50 miles from the current town without the consent of the other parent or a court order approving the relocation.
  • Religion: The religious practices the child followed (or did not follow) at the time of the divorce remains the same (i.e., one parent cannot unilaterally change the religious practices of the child even if that parent changes his/her own beliefs or practices).
  • Education / Day Care: If possible, the child should remain in the same school system, post-divorce. This includes private schooling if the parents can still afford this option. If the child is in public school or homeschool, the child should still receive their education in that environment. A young child should also remain in the same daycare or with the same after-school caregiver as before the divorce when possible.
  • Non-emergency Medical Treatment: Both parents have the right to attend the non-emergency doctor or dental appointments with the child and have the right to speak with the medical providers. The child should continue to go the same medical providers post-divorce as long as they are covered by the child’s insurance plan.

The “Status Quo” of the child is identified at the time of the divorce or legal separation for each of the five areas listed above. Neither parent can unilaterally change one of those categories without the agreement of the other parent or a court order permitting the change. The goal of maintaining the Status Quo is to provide as much familiarity and consistency for the child after the divorce or legal separation as before.

What If I Want Sole Custody?

In rare instances, one parent is granted “sole custody” which means he or she decides the Status Quo of the child and can make changes to any of the categories listed above without the consent of the other parent. If that parent has been granted true sole custody, they are also allowed to move out of state or even out of the country with the child without the other parent agrees.

Because this is a serious reduction in the ability of a parent to raise a child, the parent asking for sole custody has a high burden to prove to the judge why it is not in the child’s best interest for both parents to have decision-making power.

How is the Visitation Schedule Determined?

The time-sharing schedule of a child depends on who the primary caretaker of the child was before the divorce. The judges consider the “best interests of the child” in deciding the schedule.

Very young children usually cannot handle well spending significant time away from the parent with whom they are primarily bonded. This does not mean the child does not love both parents; it means the child depends on one parent to meet most of his or her daily needs.

Older children sometimes can handle spending equal time with both parents. There is no “default” visitation schedule anymore, even though it was common in previous times for the children to spend the majority of their time with the mother and every other weekend with the father, plus sharing holidays.

If We Have a 50-50 Timeshare, There’s No Child Support, Right?

Wrong. Only if both parents have the same gross income, and pay the same amount for the children’s health insurance and daycare expenses, and spend the same amount of time with each parent, will the worksheet show no child support is owed by one parent to the other.

Get in touch with NM Divorce & Custody Law, LLC for more information. 

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