Sole Child Custody: When Is It Appropriate in New Mexico Divorce?

New Mexico child custody laws are based on a presumption that joint custody is in a child‘s best interest, which means that the New Mexico courts favor parents sharing both legal custody and physical custody of their children (remember that physical custody is now often called timesharing).

However, there are certain discrete situations where sole custody is appropriate and may be ordered by the court. The main goal of New Mexico family courts is to make decisions that will promote a child‘s emotional, mental, and physical development; a court will only award sole custody of a child if it advances these goals and determines that such an award is in a child‘s best interest.

Sole custody grants one parent all of the rights and responsibilities of raising a child, while denying them completely to the other parent. Sole custody can be legal, physical, or both. Legal custody entitles a parent to make all important decisions regarding a child‘s life, including education, religion, health care, activities, and beyond. Physical custody, or timesharing, refers to the time a parent is entitled to spend with the child.

Courts may award sole custody to one parent when the other parent has been deemed to be an unfit parent. A parent can be found unfit due to a drug or alcohol dependency or findings of child abuse or neglect. Other factors considered by the court are whether the parent has placed the child in dangerous situations or whether the parent has a history of violence or mental instability.

However, courts are moving away from awarding sole custody to one parent as they recognize the importance of having a relationship with both parents to a child‘s development. The New Mexico courts‘ presumption that that joint custody is in the best interests of a child makes it very difficult for a parent to obtain sole custody without the extraordinary circumstances discussed above, i.e. a drug or alcohol problem or a finding of abuse or neglect.

In very few cases, parents‘ complete inability to communicate and cooperate on parenting issues may lead to an award of sole legal custody. In those types of cases, the court may award sole legal custody to one parent while awarding joint physical custody, or timesharing, to both parents by granting the non-custodial parent visitation with the child. Today, courts are very reticent to completely sever a parent child relationship, which is often the result of an award of sole legal and physical custody that prevents a non-custodial parent from any meaningful involvement in their child‘s life.

Further, if a joint custody order is already in place, a court will only replace it with a sole custody order if there has been a material and substantial change to conditions affecting the child‘s welfare that makes joint custody no longer in the best interests of the child.

Family law attorneys strongly caution their clients against petitioning for sole custody if their only reason for doing so is animosity towards the other or getting some kind of revenge on an ex-spouse. Since custody determinations are always made based on the child‘s best interest, this kind of behavior could work against a client. However, if there is a valid reason for requesting sole custody, a court may be inclined to grant it.

The guidance of an experienced child custody attorney can help parents determine what form of custody is actually in their child‘s best interest and how to best demonstrate that to the court.


Additional Reading:
The “Best Interests Of The Child” in New Mexico Involves Many Factors
Taking Your Child Out Of State in a New Mexico Child Custody Case
Loss of Control Over Private Matters in Child Custody Cases May Rile Smokers (And Other Parents)

Collins & Collins, P.C.
Albuquerque Attorneys

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