New Mexico Parenting Plans and Custody Agreements

How do I make my New Mexico parenting plan / child custody agreement?

You can write up your own parenting plan (on your own or with the other parent) or you can work with an attorney or legal professional and have them create it. If you don't want to pay the high cost of an attorney, and want to easily make your own agreement, you can use the Custody X Change software.

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In New Mexico, how can the law help me make a better agreement?

When creating a parenting plan / custody agreement in the State of New Mexico, familiarizing yourself with the laws regarding family and domestic relations will put you on the right track to create a parenting plan the court will approve of.

These laws can be found in the New Mexico Statutes Annotated, Sections 40-4-9 and 40-4-9.1.

The law provides definitions for the terminology used in court and court documents, defines the various types of custody and the factors the court uses to determine custody, and details the specifications the court requires in a parenting plan.

When you use the law as a tool when creating your New Mexico parenting plan, it should prove to be advantageous. You will be better prepared to make a plan that is compliant with the laws and you will also have knowledge necessary to construct a parenting plan that serves the needs and best interests of your child.

In New Mexico, what kind of custody does the court prefer to award?

In the initial stages of your child custody proceeding, the court will assume that joint custody is in the best interests of the child (NMSA § 40-4-9.1A), and will continue to do so until circumstances are proved to indicate the contrary.

In New Mexico, doesn't the mother usually get custody of the child?

While statistics may show that mothers are more often awarded custody of their children, the court does not favor one parent over the other based on the gender of a parent (NMSA § 40-4-9.1C).

The court considers many factors when ruling on custody and both parents are equally entitled to custody of their children. It is becoming more and more common for fathers to share joint custody of their children and to even have sole custody.

In New Mexico, what does the court consider when determining custody?

The best interests of the child are the main concern of the court in family law cases involving children and court considers the following factors when determining custody of a child (NMSA § 40-4-9A):

  • The wishes of the child's parents as to the custody of the child
  • The wishes of the child as to a custodial preference, and any residential preferences of a child over the age of 14
  • The child's relationships and bonds with each parent, any siblings, and any other people of significant importance in the child's life
  • The child's adjustment to his or her home, school, and community, and the effect disrupting the continuity of it would have on the child
  • The physical and mental health of each parent, as well as the child

What are the additional factors considered when ruling on joint custody?

Additionally, when determining an order of a permanent joint custody, the court shall consider the following factors (NMSA § 40-4-9.1B):

  • Whether or not the child has established a close relationship with each parent
  • Whether or not each parent has the capacity to provide adequate care for the child during the period he or she is physically responsible for the child, including the ability to find and provide proper child care when the parent is unavailable to be there to take care of the child
  • Whether or not each parent is willing to accept the responsibilities of parenting the child, including returning and accepting care of the child to and from the other parent at the designated times
  • Whether or not frequent contact with each parent will strengthen the relationships and bonds the child has with each parent and whether or not this contact would positively affect the child's health and development
  • Whether or not each parent is able and willing to respect the other parent's right to privacy and allow the other parent to provide care for the child without intrusion or interference
  • Whether or not an order for joint custody is suitable for the parents, with special consideration given toward the approval of a jointly submitted parenting plan
  • The geographical proximity of the parents' residences
  • Whether or not any instances of domestic violence have been evidenced, and if so, how best to protect the abused parent and the child

What should I include in my New Mexico parenting plan / agreement?

Your parenting plan should include at least the following (NMSA § 40-4-9.1F):

  • A schedule dividing the child's time and responsibility of care between the parents
  • Statements regarding the child's medical and dental care, education, religion, and recreational activities
  • A statement designating specific parental responsibilities, such as making major decisions affecting the child's life, to one or both parents
  • Provisions for communication regarding the child, the transport of the child, exchanging the child, and maintaining contact between the other parent and the child
  • Procedures for future dispute resolution and making modifications to the parenting plan
  • Any other relevant statements regarding the child's welfare and well-being, designed to clarify situations and avoid conflict while co-parenting

New Mexico parents are highly encouraged to collaborate on a plan and make a document that both parents support.

What are some ways we can make decisions and resolve disputes?

Since your New Mexico parenting plan / custody agreement needs to include methods of making decisions and resolving disputes, Chapter 40-4-9.1 has some recommendations for how to do this.

Decisions about your child can be determined by:

  • Agreement between the joint custodial parents
  • Requiring that parents seek family counseling, conciliation, or mediation service to assist in resolving differences
  • Agreement by the parents to submit the dispute to binding arbitration
  • Allocating ultimate responsibility for a particular major decision area to one legal custodian
  • Terminating joint custody and awarding sole custody to one parent
  • Going to the district court

You can choose from these methods or create your own methods for making decisions and put them in your parenting plan.

What if we cannot agree on our parenting plan / custody agreement?

In New Mexico, if you are unable to agree with the other parent on some or all of the terms of a parenting plan, the court will require you to attend mediation in an effort to help resolve the problems.

After mediation, any unresolved or disagreed upon portions of a parenting plan will need to be proposed individually, by each parent, and will be determined by the court.

As the court does not have the time or resources available to know the intimate needs of each specific child, it makes sense that as parents, you are the best suited to make a decision regarding the custody of your own child.

This is why the court allows you to submit a parenting plan together. Submitting a mutually agreed upon parenting plan, written in accordance with the laws and the best interests of your child is the best way of ensuring your child custody case has a successful outcome.

The top thirteen cities in New Mexico (by population, US Census Bureau, 2008) are: Albuquerque, Las Cruces, Rio Rancho, Santa Fe, Roswell, Farmington, South Valley, Alamogordo, Clovis, Hobbs, Carlsbad, Gallup, Deming.

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