Family law questions come in all shapes and sizes – but there are ten common parenting time (visitation) questions in New Mexico. Understanding these common questions will give you a better understanding about how New Mexico law and practice will impact your unique case and questions.
CAN I GET SOLE LEGAL CUSTODY AND VISITATION, OR STOP MY EX FROM SEEING OUR CHILD, IF MY EX ABUSES DRUGS/ALCOHOL?
Maybe. The court may grant sole legal custody if the alcohol/drug abuse is significant and prevents your ex from properly caring for your child. Are drugs such as methamphetamine, heroin, fentanyl involved? If so, your judge may find that the other parent is incapable of properly caring for your child while under the influence of these substantial, mind-altering drugs.
Regarding alcohol, does your ex have a history of alcohol related offenses such as domestic violence, or driving while intoxicated? Also, has you ex taken a PEth test to determine their level of alcohol abuse? The court may grant sole legal custody when the test reveals a significant and dangerous amount of alcohol use.
MY EX IS A DEADBEAT THAT REFUSES TO PAY HIS/HER COURT ORDERED CHILD SUPPORT AND OWES ME THOUSANDS IN BACK CHILD SUPPORT. DO I STILL HAVE TO LET HIM/HER SEE OUR CHILD AND FOLLOW OUR VISITATION ORDER?
Yes. Child support and visitation orders are different orders. The failure to pay child support does not cancel a parent’s court ordered visitation time. Instead of denying visitation time – which could hurt your case – you should file a motion to enforce child support.
MY SON/DAUGHTER IS NOW 14 YEARS OLD AND SAYS THAT HE/SHE WANTS TO LIVE WITH ME MOST OF THE TIME. CAN CHILDREN THAT ARE 14 YEARS OLD DECIDE WHERE THEY WILL LIVE?
New Mexico law requires family courts to consider the desires of children that are 14 or older when determining the appropriate parenting time (visitation). The requirement to consider the 14 year old’s desires does not mean that the judge must follow the child’s desires.
New Mexico judges routinely consider and deny a child’s requests – if the requests are not in the child’s best interests.
Parents can always agree to follow the child’s desires and not involve the courts. The best practice is to update the current visitation order with an order that outlines the parent’s joint decision.
MY EX CONSTANTLY WANTS TO CHANGE OUR COURT ORDERED VISITAITON SCHEDULE. I ALWAYS TELL HIM/HER THAT WE NEED TO FOLLOW THE CURRENT COURT ORDER, BUT HE/SHE DOESN’T LISTEN. WHAT SHOULD I DO?
It all depends. The answer depends on the unique facts in your case. Whether you should change your current timesharing schedule ultimately depends on if the request is in your child’s best interests.
Is your ex’s request reasonable?
When answering this question, you should also consider the time, cost, stress of involving the courts in your decision. If you cannot decide the appropriate timesharing – you are placing the decision in the hands of a stranger. Usually, it is better to resolve timesharing issues outside of court. The ultimate decision depends on your unique family and facts.
CAN I GET SOLE LEGAL CUSTODY OF MY CHILD IF I HAVE ALWAYS BEEN THE CHILD’S PRIMARY CARETAKER?
Possibly. New Mexico courts rarely grant sole legal custody and believe that joint legal custody is in a child’s best interests. With that said, the court might grant you sole legal custody if the other parent is unfit or poses an immediate threat of danger to the child.
Your judge will examine a handful of factors that impact the child’s best interests, when deciding what form of custody and timesharing is best for your child.
MY EX IS REQUESTING MORE VISITATION TIME WITH OUR CHILD BUT DOES NOT USE ALL OF HIS/HER COURT ORDERED VISITATION TIME. WHAT ARE MY OPTIONS?
You can file a counter motion to reduce timesharing. You could also file a response that outlines the reasons for denying your ex’s motion. In doing so, you should have evidence that shows your ex has not used all his/her current visitation time. Consider using:
- Calendars;
- Text/emails;
- Journals; or
- Any other evidence that shows your ex is not using their court ordered time.
You should also request attorney fees. The court may award attorney fees, If you are able to demonstrate that your ex’s motion is baseless.
I SHARE 50-50 PARENTING TIME (VISITATION) WITH MY EX. MY EX IS MOVING TO THE OPPOSITE SIDE OF ALBUQUERQUE, NEW MEXICO. THIS MOVE MEANS THAT MY CHILDREN WILL HAVE A 30-45 MINUTE COMMUTE TO SCHOOL EVERY DAY? CAN I REQUEST TO CHANGE OUR VISITATION SCHEDULE?
Yes. Your ex moving across the city or state can be used to file a motion to change the current visitation order. The parent’s relocation out of the city, and 30–45-minute commute to school, may be a big change in circumstances that is needed to change the current visitation order.
Your judge will ultimately decide if the move is enough of a change in circumstances to change your current visitation order.
I AM A FATHER IN NEW MEXICO. IS IT TRUE THAT NEW MEXICO IS A MOTHER’S RIGHTS STATE?
No. New Mexico neither a mother’s rights nor father’s rights state. New Mexico judges focus on a child’s best interests – not a mother or father’s rights to parenting time (visitation).
When parents are unable to agree on custody and timesharing, New Mexico judges will decide the issues based on the child’s best interests. Each family is different and there are a handful of factors that determine a child’s best interests.
It is always best to speak with an experienced child custody attorney about the unique facts of your case. An experienced custody attorney can provide you with a good understanding of what to expect based on your individual facts and circumstances.
MY EX CONSTANTLY DROPS OFF OUR CHILD WITH A BABYSITTER OR FAMILY MEMBER DURING HIS/HER VISITAITON TIME. WHAT CAN I DO IF MY EX DOES NOT SPEND HIS/HER COURT ORDERED TIME WITH OUR CHILD?
A parent’s failure to use his/her court ordered visitation can be used as the basis to request a change in the visitation order. You can also:
- Ask for the right of first refusal that allows you to have your children if the other parent is not using his visitation. The right of first refusal may apply if your ex leaves your child with someone else during their visitation time. Usually, the right of first refusal comes up when you ex does not have your child for a minimum number of hours (let’s say 4 hours) during their visitation time.
- Request mediation or settlement facilitation to resolve the issue.
MY COURT ORDER SAYS THAT I HAVE PARENTING TIME EVERY-OTHER WEEKEND AND EACH WEDNESDAY. FOR MONTHS/YEARS WE HAVE BEEN SHARING THE CHILD EQUALLY 50-50 AND NOT FOLLOWING THE ORDER. MY EX IS NOW DEMANDING THAT WE FOLLOW THE CURRENT COURT ORDER. WHAT CAN I DO?
You can either go to settlement facilitation or file a motion to modify. Technically, the current court order is an enforceable order that must be followed until modified. Likely, each side will tell a different story when the issue is either heard through settlement facilitation or before the court.
It is important to document the actual visitation time. Consider the following ways to document the actual time that you spend with your child:
- Calendar;
- Text/emails to other parent stating the agreed upon time;
- Any other written way to prove the time that you spend with your child.
(505) SANCHEZ CAN ANSWER YOUR TEN COMMON PARENTING TIME (VISITATION) QUESTIONS IN NEW MEXICO
Are you going through a separation, or have questions about your specific visitation schedule? For over a decade, Matthew Legan Sanchez has handled child custody cases all across New Mexico, including Albuquerque, Rio Rancho, Los Lunas, Belen, Gallup, Grants. Speak with an attorney that knows what they are talking about. Talk to (505) SANCHEZ today.
Ten Common Parenting Time (Visitation) Questions in New Mexico
