Divorce is difficult enough on its own, and it’s even more stressful when children are involved. Parents need to decide who is the primary caregiver, how the custody will be shared, and what the visitation schedules and times will be. Ideally, parents will be able to make their own parenting plan by themselves or during mediation sessions outside of the courtroom. However, sometimes this issue cannot be worked out between the parents, so they have to go to family court and have the judge decide for them. In New Mexico, the standard for custody is what’s in the best interest of the child, so the agreement may not necessarily be what the parents want.
The main custody arrangements
There are three general custody types seen in family court cases. If a parent has sole physical custody, he or she is the primary caregiver who has the children most of the time. With joint physical custody, the child’s time is split 50/50 (or in some other way) between the two parents. Legal custody is the ability of a parent to make decisions about their child’s life, such as education, religion and medical matters. Having legal custody doesn’t automatically equate to having physical custody. New Mexico courts favor joint legal custody where the parents share making the important decisions in the child’s life.
A family law judge will aim for parents to have shared custody in most situations as this allows both parents to be in their children’s lives. Even though this is often a goal, it is not always possible for this sort of arrangement to work. Sometimes, the judge will give one parent the primary physical custody and the other parent visitation rights. The “custodial” parent is the one who has the children most of the time, and the “noncustodial” parent is the one who has visitation. There is some flexibility in both arrangements if the parents can work together. With joint custody, for example, the court usually asks the parents to create the schedule. With primary custody and visitation, the court will look to the parents to create a visitation schedule that works for everyone involved.
The court will consider many factors when deciding custody and visitation, and they will hear the testimony of both parents and the children, if the children are old enough. They will also consider who is the primary custodian of the children currently, any criminal backgrounds of either parent, and testimony from other third parties who are involved, such as counselors.
In a more severe case, when one of the parents is considered a risk to the child’s well-being or incompetent in child care, he or she may receive supervised visitation. This means the parent has the right to see his or her child but only with supervision by a third party, such as a child services employee or business that provides these services. Some examples of a parent who is a risk include those who are using drugs whether in front of the children or not, using alcohol in front of the children to excess or driving while drinking with the children in the car, abusive or violent in their behavior to the children or mentally impaired.
Visitation plans outside of supervised ones can usually be changed easily. If the parents created their plan outside of court, they may not need family court judge approval for small changes they agree on. If the court created the agreement, any changes to it need to be presented to and approved by a judge.
A consistent, regular schedule is important for the well-being of children, especially for children who are already dealing with the changes to their lives that divorce brings. Seek the advice of a family law attorney if you need to start working on a custody arrangement for your children.