New Mexico Child Custody Agreement
New Mexico starts from a presumption of joint custody and tells the judge to follow what the parents agreed unless the judge finds the agreement is not in the child's best interests.
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Introduction
Two rules in the same statute shape a New Mexico custody agreement. NMSA 40-4-9.1(A) creates a presumption that joint custody is in the child's best interests in an initial custody determination, and NMSA 40-4-9.1(D) tells the court that where the parents agree to a form of custody, it should award custody consistent with that agreement unless it determines the agreement is not in the child's best interests. Read carefully, subsection (D) is a direction to the judge rather than a command, because the legislature used the word should there while using shall throughout the rest of the section. So the fair way to put it is that New Mexico tells the judge to award custody consistent with what you agreed, not that a New Mexico judge is obliged to. The other half of the picture is the parenting plan: when joint custody is awarded, NMSA 40-4-9.1(F) requires the court to approve a plan before making the award, and a plan the court adopts is entered as an order of the court. That is the point at which the arrangement stops being a private understanding and becomes enforceable.
Key Things to Know
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The statute leans toward what you agreed, with one word of caution. NMSA 40-4-9.1(D) provides that in any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that the agreement is not in the best interests of the child. Nothing in the section asks the parents to justify what they agreed, and no heightened standard of proof applies to the exception. The verb is should rather than shall, which is worth knowing: it is a strong statutory direction to the judge rather than an obligation to adopt the arrangement.
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Joint custody is presumed, but only at the beginning. NMSA 40-4-9.1(A) presumes that joint custody is in the child's best interests in an initial custody determination. The same subsection limits the presumption in two ways: joint custody may not be awarded as a substitute for an existing custody arrangement, and an existing joint custody order may not be terminated, without a substantial and material change in circumstances affecting the child's welfare. Agreeing to joint custody therefore lines up with the presumption rather than working against it.
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Agreeing to something the court must weigh is unusual, and New Mexico does it. Among the nine joint custody factors in NMSA 40-4-9.1(B), factor (6) is the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement. So your agreement is both the thing the court is directed to honor and one of the factors it considers.
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A parenting plan is required whenever joint custody is awarded. NMSA 40-4-9.1(F) directs the court to approve a parenting plan for the implementation of the custody arrangement before the award of joint custody, and a plan adopted by the court is entered as an order of the court. Where joint custody is not agreed to, or necessary parts of the plan are contested, each party submits a plan and the court may accept one, or combine or revise them as it finds necessary in the child's best interests. Filing deadlines are not in the statute; the time of filing is set by local rule, so confirm the deadline in the district where your case is filed.
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The statute prescribes exactly one thing the plan must contain. NMSA 40-4-9.1(F) requires the plan to include a division of the child's time and care into periods of responsibility for each parent, and then lists in permissive terms five further topics it may include: statements about the child's religion, education, child care, recreational activities and medical and dental care; designation of specific decision-making responsibilities; methods of communicating about the child, transporting the child, exchanging care and maintaining telephone and mail contact; procedures for future decision making including dispute resolution; and other statements about the child's welfare or designed to clarify and facilitate parenting under joint custody. A plan holding only the time division satisfies the statute on its face. Covering the optional topics is still the better course, because the suitability of the plan is one of the factors the court weighs.
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New Mexico kept the ordinary custody vocabulary, but two of its words carry statutory definitions worth matching. NMSA 40-4-9.1(L) defines custody as decision-making authority over the child's residence, medical and dental treatment, education or child care, religion and recreation, so the bare word custody in New Mexico is about decisions rather than about where the child sleeps. It defines visitation narrowly as a period of time available to a noncustodial parent under a sole custody arrangement, which means calling a parent's time visitation inside a joint custody plan does not match the statute. The plan itself is built out of periods of responsibility, and a parenting plan is defined as a document submitted for approval of the court setting out each parent's responsibilities individually and jointly in a joint custody arrangement.
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Domestic abuse is a mandatory consideration with a mandatory findings duty attached. NMSA 40-4-9.1(B)(9) makes a prior or present judicial adjudication that a parent or other person seeking custody engaged in one or more acts of domestic abuse a joint custody factor, and where a determination is made that domestic abuse has occurred the court must set forth findings that the custody or visitation it orders adequately protects the child, the abused parent or other household member. There is no presumption against custody for an adjudicated abuser and no automatic bar in that section, so the findings duty is the protection the statute supplies. NMSA 40-4-8(B)(1) separately requires the court to halt or suspend mediation of contested custody where a party asserts, or it appears to the court, that domestic violence or child abuse has occurred, unless specific conditions are met, and if any of this is present in your situation it is a matter for a lawyer rather than a form.
Key decisions before you file
Before you file a Child Custody Agreement in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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New Mexico Requirements for Child Custody Agreement
In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that the agreement is not in the best interests of the child. No standard of proof is stated for that determination and no burden is placed on the parents. The subsection uses should rather than shall, so it is a direction to the court rather than an obligation to adopt the agreement.
There is a presumption that joint custody is in the best interests of the child in an initial custody determination. Joint custody may not be awarded as a substitute for an existing custody arrangement, and an existing joint custody order may not be terminated, without a substantial and material change in circumstances affecting the welfare of the child.
When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody, and a plan adopted by the court shall be entered as an order of the court. Where joint custody is not agreed to or necessary aspects of the plan are contested, each party submits a plan and the court may accept one or combine or revise them as it deems necessary in the child's best interests. The time of filing of parenting plans is set by local rule.
The parenting plan shall include a division of the child's time and care into periods of responsibility for each parent. A period of responsibility is a specified period during which a parent is responsible for providing for the child's physical, developmental and emotional needs, including the decision making required in daily living. This is the one content item the statute makes compulsory.
The plan may also include statements regarding the child's religion, education, child care, recreational activities and medical and dental care; designation of specific decision-making responsibilities; methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child; procedures for future decision making including procedures for dispute resolution; and other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.
Custody is defined as the authority to make decisions concerning the child's residence, medical and dental treatment, education or child care, religion and recreation. Visitation is defined as a period of time available to a noncustodial parent under a sole custody arrangement, so it is not the correct label for a parent's time under joint custody. A parenting plan is defined as a document submitted for approval of the court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement.
Within the definition of what an award of joint custody means, a parent who plans to change his or her home city or state of residence shall provide the other parent thirty days notice in writing stating the date and destination of the move. There is no distance threshold and no statutory hearing, petition or objection deadline. A change of residence is a major change requiring consultation, and where the parents cannot agree no change shall occur until the issue has been resolved through one of the routes the subsection lists, which include agreement, counseling, conciliation or mediation, binding arbitration, allocating the decision to one legal custodian, terminating joint custody, reference to a master, or the district court.
For a minor under the age of fourteen, NMSA 40-4-9(A) directs the court to consider all relevant factors including but not limited to five listed ones: the wishes of the parent or parents as to custody; the wishes of the child as to the child's custodian; the child's interaction and interrelationship with parents, siblings and any other person who may significantly affect the child's best interest; the child's adjustment to home, school and community; and the mental and physical health of all individuals involved. For a minor of fourteen or older, the court considers the minor's desires as to whom the minor wishes to live with, with any such testimony taken in a private hearing in chambers on the record. NMSA 40-4-9.1(B) adds nine joint custody factors that apply in addition to those.
The court shall state in its decision the basis for granting or denying a request for joint custody, and a statement that joint custody is or is not in the child's best interests does not by itself satisfy that duty. Where there has been a prior or present judicial adjudication that a person seeking custody engaged in one or more acts of domestic abuse, that is a factor the court must consider, and on a determination that domestic abuse has occurred the court shall set forth findings that the custody or visitation ordered adequately protects the child, the abused parent or other household member.
Parties may stipulate by signed agreement to binding arbitration of child support, custody, time-sharing or visitation, and the court may not order a party to participate except to the extent that party has agreed. A stipulated order or motion to enforce the award must be filed within twenty-one days. Judicial review of a custody, time-sharing or visitation award is limited to the arbitration record and facts arising since the hearing, and the award may be vacated only on the grounds the statute lists, including changed circumstances adverse to the child's best interests or a finding of harm or detriment to the child. An arbitrator may not decide criminal matters or petitions under the Family Violence Protection Act.
Frequently Asked Questions
NMSA 40-4-9.1(D) provides that in any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that the agreement is not in the best interests of the child. That puts the parents in a good position: there is no burden on them to justify the arrangement and no heightened standard for the exception. It is worth being precise about how far it goes, though. The statute uses should in that subsection while using shall elsewhere in the same section, so it is a direction to the judge rather than a rule requiring a New Mexico court to adopt whatever the parents filed.
Yes. Where joint custody is involved, NMSA 40-4-9.1(F) requires the court to approve a parenting plan for the implementation of the custody arrangement before the award of joint custody, and provides that a plan adopted by the court is entered as an order of the court. Until that happens the agreement is not a custody order, so there is no custody order to enforce. The court also retains the express power to depart from the agreement if it determines the agreement is not in the child's best interests.
In an initial custody determination, yes. NMSA 40-4-9.1(A) states a presumption that joint custody is in the best interests of the child in an initial custody determination. The presumption does not extend past that point: joint custody may not be awarded as a substitute for an existing custody arrangement, and an existing joint custody order may not be terminated, without a substantial and material change in circumstances affecting the welfare of the child.
If joint custody is awarded, a plan is required, and NMSA 40-4-9.1(F) puts the court's approval of it before the award itself. NMSA 40-4-9.1(L) defines a parenting plan as a document submitted for approval of the court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement, so in New Mexico it is a joint custody instrument by definition. Where joint custody is not agreed to, or necessary aspects of the plan are contested, each party submits a plan and the court may accept one or combine or revise them as it deems necessary in the child's best interests. The statute leaves filing deadlines to local rule, so check the requirement in the district where you file.
One thing, in statutory terms. NMSA 40-4-9.1(F) says the plan shall include a division of the child's time and care into periods of responsibility for each parent. Everything else in the subsection is written as what the plan may also include: statements about the child's religion, education, child care, recreational activities and medical and dental care; designation of specific decision-making responsibilities; methods of communicating information about the child, transporting the child, exchanging care and maintaining telephone and mail contact; procedures for future decision making including dispute resolution; and other statements about the child's welfare or designed to clarify and facilitate parenting under joint custody. Cover them anyway, because the suitability of the plan is one of the joint custody factors the court weighs.
It means decision-making authority. NMSA 40-4-9.1(L) defines custody as the authority to make decisions about the child's residence, medical and dental treatment, education or child care, religion and recreation, which is closer to what other states call legal custody than to a description of where the child lives. Where the child is at any given time is handled by the division of time and care into periods of responsibility. The same subsection defines visitation as a period of time available to a noncustodial parent under a sole custody arrangement, so the word belongs in a sole custody arrangement rather than in a joint custody plan.
There are two lists and they can both apply. NMSA 40-4-9(A) sets out five factors for determining best interests where the minor is under the age of fourteen, expressly as all relevant factors including but not limited to: the wishes of the child's parent or parents as to custody; the wishes of the child as to the child's custodian; the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interest; the child's adjustment to home, school and community; and the mental and physical health of all individuals involved. Where the minor is fourteen or older, NMSA 40-4-9(B) requires the court to consider the minor's desires as to whom the minor wishes to live with before awarding custody, and any testimony from the minor on that choice is taken in a private hearing in chambers on the record. NMSA 40-4-9.1(B) then adds nine further factors, in addition to the factors in Section 40-4-9, that apply when the court decides whether joint custody is in the child's best interests.
New Mexico does not have a standalone relocation statute. The notice duty sits inside NMSA 40-4-9.1(J), which sets out what an award of joint custody means: if either parent plans to change his or her home city or state of residence, that parent shall provide the other parent thirty days notice in writing stating the date and destination of the move. There is no mileage threshold, so a move to another city within New Mexico triggers the duty and a short move within the same city does not, and the duty applies to parents under a joint custody order rather than to every parent. A change of residence is also a major change on which the parents must consult, and where they cannot agree, no change shall occur until the issue has been resolved through one of the routes the same subsection lists.
New Mexico is one of the few states that says so expressly. Under NMSA 40-4-7.2, parties may stipulate by signed agreement to binding arbitration of child support, custody, time-sharing or visitation, and a court may not order a party to participate in arbitration except to the extent that party has agreed. If you use it, the consequences are real: a party must file a stipulated order or a motion to enforce the award within twenty-one days, and judicial review of a custody, time-sharing or visitation award is confined to the arbitration record plus facts arising since the hearing, with the award set aside only on grounds the statute lists, including changed circumstances adverse to the child's best interests or a finding of harm or detriment to the child. An arbitrator may not decide criminal matters or petitions under the Family Violence Protection Act.
It is a mandatory consideration rather than a presumption. NMSA 40-4-9.1(B)(9) makes a judicial adjudication, in a prior or the present proceeding, that a person seeking custody has engaged in one or more acts of domestic abuse a factor the court must consider on joint custody, and where a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation ordered adequately protects the child, the abused parent or other household member. There is no rebuttable presumption against an adjudicated abuser in that section and no automatic restriction on custody. NMSA 40-4-8(B)(1) also requires the court to halt or suspend mediation of contested custody where domestic violence or child abuse is asserted or appears to the court, unless specific findings and conditions are satisfied. Where abuse or a protective order is part of the picture, this is a situation for a lawyer rather than a form.