Determining Child Custody Arrangements

Working out child custody arrangements can be a difficult and emotional process. We try to make it as easy on our clients as possible by providing information based on our decades of experience in custody cases.

The starting point in any custody case is jurisdiction. Custody jurisdiction is set out in NMSA 40-10A-201. If you don’t have custody jurisdiction, the New Mexico court can’t do anything, and custody will have to be determined in a state where you have jurisdiction. Even where there is custody jurisdiction, the Court can only modify custody upon a showing that there has been a substantial and material change of circumstances affecting the child since the last custody decision. Seeley v. Jaramillo, 104 NM 783 (Ct. App. – 1986)

Custody can be settled in a number of different ways, including combinations of the following:

• Negotiations between the parties, between lawyers or with a mediator.
• Presentation to an arbitrator or a judge pro tem.
• In court without any expert witnesses. In former times, this was fairly common. Parties presented their cases by way of lay witnesses and relevant documents. The Court sometimes spoke with the children and then issued its ruling.
• A court referral to an expert for a custody evaluation.
• A guardian ad litem (attorney representing the child) can be appointed to investigate and make recommendations on custody.

Custody Evaluations

Custody evaluations have become relatively common, and if it is determined that you need one, the starting place is the Order for the evaluation. The Order will govern the conduct of the evaluation and can vary in terms of detail. It is a good idea to send the draft Order to the expert to see if he has any additions or if there are any provisions he would have difficulty working with. In cases where the Court orders an evaluation, the report and testimony of the evaluator tend to have great bearing on the Judge’s decision regarding custody.

The Child’s Role

What role does the child play in this decision about his life? The statute tries, with limited success, to give some significance to age 14; however, if a judge is disposed to listen to a child, the only practical question is whether the child is able to articulate his feelings. There is no minimum age the child must have reached.

There are many other ways that the child’s desires can be brought to the attention of the Judge. The court clinic or a private expert, the child’s siblings, parents, other family members, friends, neighbors and therapists may all bring the child’s interests to the attention of the court.

The statutory factors for determining custody are the wishes of the child’s father and mother as to custody, the wishes of the child as to custody, the relationship of the child with parents, siblings and any other person who may significantly affect the child’s best interest (this allows for unusual witnesses, e.g. the child’s soccer coach). Determining factors also include the child’s adjustment to home, school and community as well as the mental and physical health of all individuals involved.

Marriage and divorce issues in New Mexico are governed by Article 40 of the New Mexico Statutes. While anyone can freely marry in New Mexico, a divorce, also known as dissolution, must be filed with and ordered by the court.

The process begins with one party filing a petition with the court. In New Mexico, either spouse may file the initial petition. The petition includes important information regarding the marriage, such as the names of the husband and wife and any children. It includes information regarding community and separate property and debt and may raise issues regarding child support and child timesharing. The spouse who files the petition is referred to as the Petitioner in further court proceedings.

The petition must be served on the other spouse, and it must be filed with the court. Once a petition is filed, the court will automatically issue a Temporary Domestic Order. This Order is a type of restraining order which generally instructs the parties to abide by the status quo while the divorce proceeds. Neither party will, among other things, be permitted to spend or sell community property or to take any minor children out of state without the express permission of the other party.

The other spouse is known as the Respondent. The Respondent should file a response to the petition with the court within thirty days. Thereafter, both spouses will be required to disclose information regarding their assets, liabilities, income and expenses. If the parties agree on terms, the divorce may be finalized with a Settlement Agreement, a Parenting Plan where children are involved, and a request that the Court issue an Order terminating the marriage and approving the settlement terms. If the parties cannot agree, other legal action may be necessary. Resolving complex family issues, child support and custody and difficult financial matters often requires the assistance of an attorney.

Our attorneys have represented clients in over a thousand divorces and can respond to more specific questions if retained to do so.