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New Mexico Child Custody
Child Custody in New Mexico

New Mexico Annotated Statutes 40-4-9, 40-4-9.1 provide that the court determines contested custody cases deciding the best interests of the child and considering all relevant factors.

New Mexico child custody laws protect the welfare of the child. The court determines child custody based on the best interests of the child.

The court strongly recommends that divorcing parents cooperate in preparing a parenting plan that outlines their respective responsibilities in raising their child. The court steps in to resolve issues on child custody, support, and visitation rights when the parents cannot do it.

The court does not favor one parent over the other based on gender. The family courts have jurisdiction over custody cases and choose the child's custodian. Either joint custody or sole custody can be granted.

In determining the best interests of the child, the court considers:

  • the parents' wishes;
  • the child's wishes, if the child is age 14 or older;
  • the child's relationship with his/her parents, siblings and extended family members;
  • the mental and physical health of all involved parties; and
  • the child's adjustment to home, school and community.

In deciding on a custody arrangement, the court considers:

  • the child's wishes or preferences as to custody provided that he or she is mature enough to make such claims. If the child is 14 years of age or older, this must be considered by the court before custody is awarded to either parent;
  • the child's ability to adjust to his or her home, school and community;
  • the parents' wishes or preferences as to custody arrangements;
  • the parents' ability and disposition to provide for the child's needs such as food, shelter, clothing, education, religious training;
  • the parents' willingness to foster and encourage a continuing contact between the child and the other parent;
  • the parents' ability and willingness to communicate and cooperate with each other in making decisions that concern the child's welfare and development;
  • the distance between the parents' homes;
  • the relationship between the child, parents, siblings, and any other individual that could directly affect the child's well-being;
  • the mental and physical health of all the parties involved in the custody proceedings;
  • whether or not the parenting plan is suitable for the implementation of joint custody; and
  • any history of domestic violence, child abuse, negligence, or substance abuse.


A parent who seeks modification of a custody order must present proof of a material and substantial change of circumstances that adversely affects the best interests of the child.

Joint Custody Preference

New Mexico law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case, so joint custody is considered beneficial for the child. This type of custody allows both parents joint rights and responsibilities in raising their child(ren). Also, it strengthens the parent-child relationship even after divorce. However, this is not always possible in cases where the child's welfare is at risk with one of the parents.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

The court considers whether either parent was found to have committed an act of domestic violence against a child, a parent or another household member.


The New Mexico courts have full discretion when determining visitation between children and parents. The courts can establish visitation between one or more parent, even if both parents agreed upon a no-visitation policy. Basic visitation means one parent has full custody of the child. The other parent is given less than 35 percent of the time in a year.

Two schedules - A and B - are used when calculating child support depending on the percentage of visitation time. In circumstances where one parent has the child at least 65 percent of the time, Schedule A applies. Schedule B is usually used in a joint custody arrangement where each parent has at least 35 percent of the time with the child (NMSA Section 40-4-9.1A). The non-custodial parent has visitation rights when the child is with the other parent.

Both parents are regarded as natural guardians who must have access to the child under New Mexico law. The presumption is that it is in the best interest of the child if both parents are involved in his or her upbringing (NMSA Section 40-4-9.1A). That's why the non-custodial parent is granted visitation rights. For as long as the non-custodial parent is paying child support, visitation is not a problem.

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