Are you facing a divorce or custody matter and are researching how to get sole legal custody in New Mexico?
New Mexico presumes that a child is best served when raised by both parents that share joint legal custody. Joint legal custody gives both parents an equal voice in the child’s education, upbringing, and general welfare.
In some cases, one parent may need to get sole custody of a child when the other parent is unfit to care for the child
Sole legal custody means that one parent can make the important decisions that impact a child such as religion, medical decisions, education, and general upbringing. At times, New Mexico courts will grant one parent full legal custody, yet require the other parent’s approval before making a major change that impacts the child.
With full legal custody, the parent without custody may still be granted the ability to communicate or visit the child. This communication or visitation may be ordered to take place in supervised or therapeutic setting.
Sole legal custody is the exception rather than the norm. New Mexico courts resist granting one parent exclusive custody unless there are extraordinary circumstances that demonstrate full custody is in the child’s best interests.
New Mexico courts usually grant parents joint legal custody. With that said, there are some circumstances where the court will award one parent sole legal custody. New Mexico courts may grant a parent sole custodial rights when clear and convincing evidence demonstrates:
There are good and bad reasons to request sole legal custody. The good reasons, discussed above, demonstrate that one parent is unfit to properly care for the child. Bad reasons for requesting full legal custody include:
New Mexico courts hesitate to grant one parent sole legal custody. NM courts usually must find that the other parent is unfit to provide the child with adequate care, maintenance, or supervision.
New Mexico courts will not grant sole custody just because one parent wants to make all the decisions. NM courts will not grant full custody just because one parent does not like the other parent, for reasons relating to the breakup or divorce. The parent requesting exclusive legal custody must convince the assigned judge that the child is best served by one parent having full custodial rights.
Are you looking to get sole legal custody when joint legal custody has already been established? Once custody has already been agreed or decided, the court assumes that the original decision is correct. This means that the parent attempting to modify custody has the burden of proving:
New Mexico courts resist change that impacts children. NM courts believe that children thrive with consistent and predictable parenting. For this reason, NM courts refuse to terminate joint legal custody unless one parent can prove that the request is in the child’s best interests.
Your chances of getting sole legal custody depend on the facts and circumstances of your case. New Mexico courts start with the belief that children benefit when raised by both parents. With that said, there are extraordinary circumstances when one parent is unable to provide a child with adequate care, supervision, or maintenance.
Has custody never been decided? Does your ex agree for you to have exclusive custodial rights? If so, the court will likely approve your agreement.
Does your ex refuse to grant you sole legal custody? Has your ex said that they will fight you in court for joint legal custody? If so, your judge will make the final decision and will lean towards joint legal custody. You will need to provide significant evidence to prove that full legal custody is in your child’s best interests.
Unmarried mothers have sole legal custody by default until a NM court grants the father joint legal custody. Fathers do not have custodial rights until granted by the court.
When a father is attempting to establish paternity, custody and timesharing, the best option for getting full custodial rights without a trial or court is for the other parent to agree. If you and the other parent can agree to sole legal custody, this agreement can be filed as a stipulated order.
At times, one parent may agree to full legal custody in exchange for reducing or eliminating child support.
It is important to note that custody can always be modified based on a major change in circumstances that impacts the child’s welfare, and the current form of custody is no longer in the child’s best interests.
A parent is still required to pay child support when the other parent is granted sole legal custody. In this situation, the child support will likely be on a Worksheet A, because the other parent will have the child less than 35% of the time.
Child support can be waived, by mutual agreement, based on a substantial hardship.
Do you still have questions or need advice on how to file for sole custody? For over a decade, Matthew Sanchez has handled custody cases all across New Mexico. Don’t wait to call (505) SANCHEZ.
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