Fighting for Full vs. Joint Custody in New Mexico
Divorce is never easy. The presence of children and the question of child custody can make a difficult situation even worse. In many cases, a judge will award joint custody, which involves the child(ren) living primarily with one parent, while still spending time with the other parent.
However, in some situations, joint custody may not be the best thing for the child. What’s the best path forward if the other parent is a bad influence, or worse yet, a danger to a child? Petitioning the court for full custody might be the right path forward.
The Difference Between Physical and Legal Custody
When it comes to custody determinations, the New Mexico courts look at both legal and physical custody, which are completely separate and work independently of each other. Physical custody refers to the actual time sharing and time periods that each parent has physical custody of the child. In New Mexico, there is no legal presumption at the beginning of the case in terms of how physical custody should be awarded. Rather, the courts will use the legal standard of “best interests of the child,” in making this determination. Legal custody refers to all major decision-making in the child’s life, including things like which school the child should attend, what doctor they will see, and what extracurricular activities they might pursue. In New Mexico, there is a presumption that the parties will share equal legal custody of the child, but that presumption can be overcome during the course of a case.
What Is Joint Custody?
In New Mexico, most courts award joint legal custody. This is based on the idea that both parents should be involved in the major decisions concerning their children, and in fact, there is a legal presumption in New Mexico that the parties will do just that.
In terms of physical custody, if the parties do not share time equally, then one parent will be deemed the “custodial” or “primary” parent. The child will live primarily with the custodial parent and spend time with the other parent at designated times. This might be over the weekend, during the week, or during alternating holidays depending on what agreement the parents reach and the judge’s decision.
The noncustodial parent is usually responsible for paying child support, and often provides health insurance for the child, as well, unless the custodial parent has insurance. However, while the child might not live with the noncustodial parent, that parent still has an equal say in:
- Questions about the child’s general welfare
- Questions surrounding the child’s upbringing
- Questions surrounding the child’s education
What Is Full Custody?
Full custody is also called “sole” custody. In this situation, only one parent has custody of the child(ren). The other parent also has limited or no say in the child’s education, upbringing, or general welfare. This includes medical decisions, religious decisions, and more. Remember that physical and legal custody are independent of each other. A parent might, for example, have 50/50 physical custody of the child, but still have sole legal custody. This is fairly rare but can happen.
Why Someone Might Pursue Full Custody
Why would one parent pursue full custody instead of agreeing to joint child custody? A parent might seek this type of arrangement for many reasons. For instance, they might feel the other parent is unfit, or even a danger to the child. However, it is rare for a New Mexico court to grant sole custody to either parent. Some of the reasons a court might choose to grant a petition for full custody include the following:
- Relocation to an area that makes joint child custody impossible
- Proven drug or alcohol abuse
- Domestic abuse
- Incarceration in jail or prison
- Abandonment
- An inability to care for or supervise the child(ren)
- A substantiated charge of abuse or neglect with CYFD
- Any issues that place the child in potential danger when in that parent’s care
While there are grounds for a New Mexico court to grant full custody to one parent, some reasons are not sufficient or may actually reflect negatively on the parent making the request. For instance, if one parent is angry over the breakup and divorce and is seeking to punish the other by taking away custody, the request will not be granted. Other similar situations include the following:
- Believing that they are the superior parent without demonstrable proof
- The desire to make all the decisions for the child(ren) even if the other parent is capable, willing, and able to do so
- Seeking to punish the other parent because of their choice of current or ex-boyfriend or girlfriend
- Seeking full custody as an advantage in an upcoming divorce case
- A dislike of the other parent for reasons that have nothing to do with the child’s well-being or safety (generally, these involve mental health issues or substance abuse problems)
The Likelihood of Being Granted Full Custody
Courts in New Mexico very rarely award full custody to one parent unless there is a compelling, proven, verified reason to do so. It is also up to the parent requesting full custody to convince the judge that the other parent is either unfit or a danger to the child. There is no burden on the other parent to prove they are a fit parent.
For those going through difficult situations and worried about the welfare of their child(ren), this can be a very stressful situation. New Mexico residents should search online for “a custody lawyer near me” and then consult with an attorney.
An experienced child custody lawyer can offer accurate advice and guidance on moving forward, and help you understand the likelihood of being granted full custody. They can also help you mount the best possible case if the other parent is a danger or is unfit.
If you’re facing a challenging divorce, or custody matter or are concerned about your child’s welfare, get in touch with the New Mexico Legal Group. Complete a free case evaluation to learn how we can help.