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Legal Custody

The dissolution of a marriage or a relationship is clearly a life changing event; but it is ever so much more complicated with the involvement of minor children. Despite the differences that have led you to either a separation or divorce, each parent must do all he or she can to maintain he parental bonds with the children.

The primary consideration must always be to do so in a manner that is ultimately in the best interests of the children.  This is the standard the court will follow.  And the very strong presumption of the court is that the bonds with both parents must be maintained and guarded.

Custody of children under New Mexico law has two components; physical custody and legal custody. Physical custody refers to where your children will actually live. Legal custody refers to the right to make decisions about your child’s life.  Legal custody, like physical, is either “joint custody” or “sole custody.” If joint, both parents together jointly make major life decisions for the children. Major life decisions include, but are not limited to such issues as religion, schooling and medical treatment.

It is important to understand and not to be confused by the differences between physical and legal custody. The great majority of cases will have joint legal custody.  This is the case even when there is primary custody when one of the parents.  Removing one parent from the most important decisions in a child‘s life is a very drastic measure.  It will not be done lightly.  There must be a good reason for taking legal custody from one of the parents.   And the simple fact is that there is rarely sufficient grounds for denying legal custody.

In short, even when you lack primary physical custody, and have very limited time-sharing, you will typically still have joint legal custody.   Thus, legal custody should rarely be a point of contention.  The courts will rarely deviate.

If legal custody is contested by one or the other parties, then your case is likely to be very high conflict, and very high costs.  It is best to consult with an experienced family law attorney before heading down that road.

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