There is often a misconception about the meaning of joint custody. There is confusion as to how joint custody affects time-sharing, child-custody and child support. There is often further confusion between joint legal and joint physical custody.
Hopefully, we can clear a few of these up here.
Joint Child Custody and Child Support
New Mexico’s statute makes it clear that joint custody does not necessarily mean equal financial responsibility or equal time-sharing. This goes both ways.
First, the parent with less time-sharing or even no time-sharing is not relieved of child support by virtue of lessened contact with the children. In fact, the opposite may be true since child support is calculated on the proportionate physical care or custody of the children. The parent with the greater physical responsibility will be entitled to greater child support toward the care of the children.
Likewise, the parent with greater responsibility is entitled to greater support to a degree. However, the child support is dictated by the New Mexico Child Support Worksheets. No additional support is awarded because of an absent parent beyond the Child Support Worksheets.
Joint Legal Child Custody Somewhat Independent of Physical Custody
Physical custody is just what it sounds like. The parent with physical custody has the children in his or her care. Legal custody is another matter altogether and is somewhat independent of physical custody.
In other words, a parent does not lose legal custody by virtue of a loss of physical custody. This is possible but fairly rare so it is typically not worth fighting for unless there are extraordinary circumstances.
Simply put, the joint legal custody statute provides that neither parent is permitted to make decisions or take actions that create a significant change in a child’s life, unless the other parent agrees or the court approves it. Five significant changes that are noted in the statute are: (1) residence, (2) religion, (3) health care, (4) education, and (5) recreation.
Status Quo Important in Legal Child Custody
The best interests of the child is always the most important determinate of child custody (legal or physical). Typically, there is a status quo preceding a divorce or other child custody dispute. That status quo is typically given some degree of preference in order to maintain consistency and predictability for the child.
Therefore, it is important to come to some understanding and agreement as to what the status quo was prior to the divorce or child custody dispute. In order for joint custody to actually work, parents should be mindful as to what was in place before they filed for divorce with regard to the five aforementioned matters.
Once they reach an agreement on that issue, both parents should strive to do what is in the best interest of the child and that would generally mean maintaining some semblance of continuity with life before divorce for the children.
Child Custody Disputes and Litigation
Unfortunately, parents often cannot agree on the important terms. They may not agree on the status quo prior to divorce. They may not agree on what is in the best interest of the child. They may not even agree on basics, such as, where the child was or will be going to church or school.
These are all potential points of conflict. Indeed, these are points of very high levels of conflict in many cases with the child custody matters overwhelming the range of issues in the divorce. Sometimes these are honest disputes. More often, they are driven by emotions, resentment and grudges. This can be a costly way to proceed.
Costs of Conflict Child Custody
These would be what might be called conflict child custody cases. In some cases, they are high conflict child custody cases. The costs associated with these goes from high to very high in terms of attorney fees and cost and stress to both the parents and more importantly the children.
With every disputed issues comes motions, responses, discovery and court hearings. These take an extraordinary toll of the family’s financial and emotional health. It is far better to try to work through these in a reasonable and rational manner taking emotion and resentment off the table.
Self-Help is Not a Good Idea
If parents cannot agree, it is not infrequent that one or the other will decide to take matters into his or her own hands unilaterally changing the basic terms of custody. This is a very bad idea and potentially bad consequences.
The parent will be held in violation of the any standing orders including the Temporary Domestic Order issued in every divorce case at its inception. If there are other court orders, the parent may be held in contempt with a range of consequences from reduced time-sharing to actual jail time in extreme cases or repeated offenses.
Seek Legal Guidance
An experienced divorce attorney can help your through this process. The attorney cannot necessarily reduce conflict since the attorney has no control over the other side. However, he or she can direct you in a manner likely to minimize conflict and can most certainly counsel you on the course of action best for you and your children. When the other party will not behave rationally, the attorney can help there as well with the necessary and appropriate response.
The Albuquerque divorce attorneys at Collins & Collins, P.C. can help in these situations. Feel free to contact us for a free case review.