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The Child Custody, Timesharing, and Visitation Process

| August 28, 2011

Your right to have a relationship with and raise your child according to your own goals, morals, beliefs, values, philosophy, traditions, customs, and personal standards is one of the most important things there is in life. The United States Constitution recognizes this as a Fundamental Constitutional Right that the government can only modify, regulate, and/or interfere with in very limited circumstances.

As a general matter, if both the mother and father agree with respect to what they want to do regarding child custody and timesharing, the courts will respect and implement that decision.

But if there is no agreement, and the parties cannot agree, and there is conflict, the courts will then get involved to balance those constitutional rights (mother’s and father’s), try to assure fairness, and take into account the best interests of the child.

The legal standard that the courts apply in determining matters regarding child custody and timesharing is known as the “best interest of the child” standard. Of course, together with this, the courts will factor in the best interests of the mother and father as well.

As a general matter, New Mexico courts favor joint legal custody and shared physical responsibility of the child. There are specific state legal statutes that govern this. In most situations, the courts will order joint legal custody unless there are very good reasons to do something different. Sole legal custody in New Mexico is rare. It can happen, in certain circumstances, but the courts are going to require very good reasons to deviate from what it normally does, and from what the statute requires.

A parent with joint legal custody has the right, power, and authority to know about, be involved with, and be a part of the decision-making process regarding all of the “major life activities” of the child, including medical care, education, residence, major recreational activities, religious affiliations and activities, etc.

Joint legal custody means that one parent cannot make unilateral decisions regarding any of these issues. Both parents have a right to be involved and have input, and they must agree. In the event of disagreement, the matter is usually then left to the courts to decide.

Shared physical responsibility of the child means that both parties have a right to see, raise, and have a clost, loving, positive relationship with their child. Again, the mother and father can generally agree to virtually any timesharing arrangement and schedule they want.

But if they can’t agree, the court will then get involved and ultimately decide specific days and times and places etc. regarding timesharing and visitation. The courts don’t like to do this. They courts would rather see the parents reach their own agreement. But if they can’t, the court will step in.

In making these determinations, the court will consider and factor in what each of the parents want, what is in the best interest of the child, where the parties each live, where they work, their work schedules, and the child’s school and other schedules. All of this is for the purpose of putting together a formal written parenting plan that works for everybody.

If the child is mature enough, the court will also listen to what the child wants, but this is never conclusive. At most, it will be just one of many factors that the court will consider. The child is, after all, a minor, and is not entitled to make these kinds of decisions. Some judges will give more weight to this than others.

Factors that can affect child custody and timesharing include the needs of the child, as well as the desire, capacity, and ability of the parents to properly care for and raise the child.

In making these determinations, the courts look at a number of factors that relate to and may impact this, including the age, maturity, and medical condition of the children, the parent’s education, employment, residential stability, psychological stability, medical and/or other disabilities, maturity, judgment, instances of domestic violence, history of criminal conduct, abuse of alcohol, and use of illegal drugs or narcotics.

In Bernalillo County, the courts frequently refer matters regarding child custody and timesharing to the Court Clinic, which is an office at the Second Judicial District Court. The Court Clinic provides a variety of services to assist the court in making determinations regarding child custody and timesharing. These services include mediation, priority consultations, advisory consultations, and other related services. Essentially, the Court Clinic acts in an advisory capacity to provide recommendations to the judge regarding child custody and timesharing issues whenever the mother and father are not able to reach agreement. These recommendations are sometimes, but not always, adopted by the court.

In a situation where the Court Clinic makes recommendations to the judge that one party does not agree with, that party is required to file specific written objections to those recommendations. Strict deadlines apply. The court will then schedule a formal hearing to hear evidence from both sides, both in favor of the recommendations and against them. Both sides have the right to call witnesses, present evidence, documents, records, reports, and other material relevant to the determination. The court then makes the final decision.

In Santa Fe County, the First Judicial District Court has an office called Court Services which essentially provides the same services as Bernalillo County’s Court Clinic.

In some instances, we may recommend to you that we retain our own expert witness, usually a child psychologist or other professional, in order to conduct a formal custody evaluation. This is not required, and it is rare, but in certain circumstances may be advisable. When we meet, we can advise you regarding all of the pros and cons of this process.

At, we will work with you to determine and implement your child custody and timesharing goals. We know your children are very important to you and we want to make sure that your rights to raise your children are respected and not unfairly interfered with.

Above all, and perhaps most important, don’t try to do this alone. As we sometimes tell our clients, you can try to design, build, and fly your own airplane too, if you wanted. But we don’t recommend it.

Your relationship with your children is the most important thing in the world. You need the right lawyer on your side.

If you’re concerned about your children, and need to know your rights regarding child custody, timesharing, visitation, or support, or need to change an existing court order or need to enforce one, we recommend you talk to an Experienced New Mexico Child Custody Lawyer immediately to discuss your situation and explain the applicable law.

Your relationship with your children is the most important thing in the world. It’s too important to try to do this alone. Some mistakes can’t be fixed later.

You have a lot at stake. You need the right lawyer.

Remember: The lawyer you choose to represent you in court makes all the difference. The quality of your lawyer will affect the outcome of your case.

If you live in Albuquerque, Santa Fe, Rio Rancho, Los Lunas, or the surrounding area, offers free consultations, same-day appointments, reasonable fees, and payment plans.

Call them today at (505) 888-5200. With 25 years of courtroom trial experience, they can help you get the results you need. Guaranteed.

L A W Y E R   A D V E R T I S E M E N T

Category: Family / Divorce Law

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