Filing for Child Custody in New Mexico
Getting a custody order protects your parental rights and holds parents accountable for fulfilling their responsibilities as parents.
A parent who wants to end their marriage can ask for a custody order when they file for divorce. A parent who is unmarried can request custody on its own or when they ask the court for help establishing the child's paternity.
You can file for custody in New Mexico if your child has resided there for the past six months — or since birth if they're under six months old.
The parent who files the petition is the petitioner, and the other parent is the respondent.
Deciding what type of custody you want
You'll need to inform the court of the type of custody you believe is in the best interest of your child.
Joint physical custody and joint legal custody are presumed by the court to be in the child's best interests. The court generally only deviates from joint custody if the parents' circumstances would make it harmful for the child — for example, if:
- There's been abuse.
- A parent has alienated the child from the other parent.
- Parents do not have the availability to carry out joint parenting responsibilities.
Sole physical custody is possible if one parent is unfit or unavailable to care for the child on a joint basis. Sole legal custody is harder to get as parents usually have equal say in child-related decisions.
Forms you'll need
You can find family forms on the New Mexico Courts website.
For every case, you'll need the following:
- Domestic Relations Information Sheet
- Petition
- Summons
- Request for Hearing
- Parenting Plan
- Child support worksheet (Worksheet A if requesting sole physical custody; Worksheet B if requesting joint physical custody)
Parents who've reached a custody agreement must prepare a joint parenting plan together. You won't need the Summons or Request for Hearing — unless you're divorcing or disagree on other matters.
You can use the New Mexico Courts' online document preparation service to easily fill in documents if you don't have a lawyer.
Make two copies of each form and paperclip them all together.
Divorce and custody
You must live in New Mexico for at least six months before you can file for divorce in the state.
Fill out a Petition for Dissolution of Marriage With Children to initiate your divorce.
Paternity and custody
Parents who are not married must establish their child's paternity before they can get a custody order.
If both parents agree on the father's identity, they can sign an Acknowledgment of Paternity form together.
If not, fill out a Petition to Establish Parentage, Determine Custody and Time-Sharing and Assess Child Support to address all case issues at once. (You'll find this under 'Parentage — Custody Packet' in the forms list linked above.)
Handing in your forms
Take your forms to the domestic relations clerk in the Judicial District Court. If you're divorcing, go to the court closest to where your spouse lives. If you're not divorcing, go to the court closest to where your child lives.
Expect to pay a filing fee of around $140. You'll pay extra for copies if you don't bring your own.
If you're divorcing, the clerk will give you a Temporary Domestic Relations Order, which you must serve to your spouse. (See the next section.) It outlines what spouses are not allowed to do now that a divorce case has started.
How the other parent finds out
The other parent is formally notified of the case through a process called service. This is when an adult other than you (and who is not part of the case) gives copies of your filed paperwork to the respondent.
Follow the rules for service carefully as many people mess up this part of the process.
The respondent will have 30 days to file an answer to your petition. If they don't respond, you can request a default judgment, which may give you some if not all of what you asked for.
Preparing for what comes next
If you filed an agreement, a judge will review the terms to make sure it is in your child's best interests. If they approve, you'll receive a copy of the signed final custody order in the mail.
If you don't agree, your case will proceed in court. You can ask for a referral to mediation or the Court Clinic to try to negotiate a custody agreement. Otherwise, you'll appear for an initial hearing one to three months after you file.
Regardless of whether you settle from the very beginning or need to go to court, using custody software can help.
The Custody X Change online app offers a parenting plan template, custom custody calendars, parent-to-parent messaging, an expense tracker and more. You can use it to put together proposals for the other parent, negotiate, prepare settlement paperwork or organize evidence.
You can customize this to fit your situation with Custody X Change.
Be prepared for your hearing and every step of your case with Custody X Change.
Resources
We thank Attorney Matthew Sanchez of Albuquerque and Attorney Charles A. Scott of Santa Fe for helping us understand child custody in New Mexico.
For more guidance, look to: