If you have children and file for divorce in New Mexico, you may request custody in your Petition for Dissolution of Marriage filed with the court. If you and your spouse are in agreement as to the custody arrangement, you may submit a parenting plan along with the petition. In the plan, you describe whether you and your spouse will exercise joint legal custody, making important decisions regarding your child together, such as education, religion and health care, or if only one parent will have this responsibility through sole custody. Additionally, you list the time-sharing schedule, which basically describes with whom the child lives and when each parent will have access to the child.
If you and your spouse are unable to reach a custody agreement, this becomes a contested issue in your divorce. When this happens, the court will make the decision for you. Prior to trial, the court is likely to order mediation. If you reach an agreement with the help of mediation, the terms are formalized in a parenting plan and submitted to the court. If approved, the court incorporates the agreement into the divorce decree and finalizes the divorce, making a trial unnecessary unless other contested issues remain. If mediation proves unsuccessful, the matter will proceed to trial.
When a court decides child custody as part of a divorce, it does so based on the best interests of the child. To make this determination, the court looks at a variety of factors, such as the relationship between the parents and child; the child's adjustment to home, school and community; the mental and physical health of parents and child; and the child's wishes. In addition, New Mexico courts start off with the presumption that joint custody is in the best interests of the child. However, this presumption can be overcome. For example, if you can prove the other parent has been abusive or abuses drugs, the court is likely to award you with sole custody.
If you are divorcing an abusive spouse, New Mexico has protections built into the process. If an emergency exists, you may petition the court for a temporary protection order, or TPO. You will be asked to describe the instances of domestic abuse, both on the petition and before the judge who will sign the petition later that day. The court also has the authority to award you with temporary custody while the TPO is in place, even if your spouse currently has the child. The TPO remains in effect until a subsequent hearing on the matter is held, which must take place within 10 days of the TPO being approved. At the hearing, the judge will decide whether to convert the TPO into a permanent order, which lasts for one year and can be extended.