Understanding “Father’s Rights” Regarding Child Custody in Albuquerque, New Mexico

 

I’ve recently met with an increasing number of fired-up fathers that are ready to storm into court and demand their “Father’s Rights.”

As a father, I’m sympathetic towards the spirit that moves men to fight for their children.  As an experienced attorney, I’m equally sympathetic towards the misinformation that desperate fathers receive.  Marketing soundbites and second-hand information can cause men to fall back on the concept of “Father’s Rights,” rather than moving forward towards effective action.

As a father, by right, you are entitled to a DNA test to ensure that you are the child’s father. Fathers also have the right to file a Petition to Establish Paternity, Custody, Time-sharing and Child Support, in order to be legally recognized as the child’s father.

 

WHAT ARE A FATHER’S RIGHTS REGARDING LEGAL AND PHYSICAL CUSTODY IN ALBUQUERQUE, NEW MEXICO?

 

Based on catch-phrases and misinformation, some fathers believe that they have a legal right to joint legal and physical custody.

“Legal custody” means the authority to make major decisions in a child’s life in the areas of residence, religion, recreation, education, childcare, medical and dental treatment.

Physical custody relates to time-sharing between the parents.

Because of the “Father’s Rights” campaign, I speak with a growing number of fathers that believe they have a legal right to make decisions on the child’s behalf, and a legal right to equal time-sharing.  Unfortunately, these beliefs are misguided.

New Mexico courts are guided by “The Best Interests of the Child,” not “Father’s Rights.”

NM law presumes that joint legal custody is in the child’s best interests – but a legal presumption does not confer a legal right.  A legal presumption essentially means that the court begins with the belief that joint legal custody is in the child’s best interests until the other side can introduce enough evidence to prove otherwise.

 

UNDERSTANDING JOINT LEGAL CUSTODY IN ALBUQUERQUE, NM

 

An award of joint legal custody means:

1. Each parent shall have significant, well-defined periods of parents time-sharing with the child;
2. Each parent shall have responsibility for the child’s financial, physical, emotional and developmental needs     during one’s time-sharing; and
3. Both parents must approve major changes to the child’s life.

Joint legal custody means that each parent is entitled to significant and well-defined periods of time-sharing with the child.  Joint legal custody does not mean that parents are entitled to equal time-sharing.

 

TIPS FOR UNDERSTANDING TIME-SHARING IN NEW MEXICO

 

Time-sharing is determined by the “Best Interests of the Child” – not by legal right.  “Significant, well-defined periods of time-sharing” does not mean equal time-sharing, or the right to a certain period of time-sharing.

When determining the best interests of the child, New Mexico Courts are heavily influenced by “Status Quo,” which means the time-sharing that took place before the court was involved.  New Mexico Courts are reluctant to disrupt the “Status Quo” because stability and predictability are the two towers of optimal child development.

NM’s tendency to continue the status quo means that fathers should immediately become as heavily involved with their children as possible.  Likewise, upon separation, fathers should immediately request and exercise their ideal time-sharing.  Fathers should take the immediate action of involvement rather than falling back on the plan of asserting “Father’s Rights.”

There certainly are situations where mothers bully fathers by calling all of the shots, make all decisions involving the child, and dole out time-sharing when and how they decree fit.  In these situations, fathers are unable to immediately create an ideal time-sharing schedule and can feel powerless.

 

WHAT SHOULD FATHERS DO WHEN MOTHERS PREVENT COMMUNICATION AND PARENTAL VISITATION IN NM?

 

Fathers should immediately involve the court in situations where mothers are making all of the decisions, calling the shots regarding time-sharing, or granting and changing time-sharing at their whim.

As mentioned above, fathers should become as heavily involved as possible, and immediately establish the ideal time-sharing after separation.  Unfortunately, this ideal situation is not a reality for some fathers.

In reality, some separations occur before the child is born. Some separations are less than friendly.  In some situations, mothers are scorned by the breakup and either prevent time-sharing altogether, or bully fathers by calling all of the shots.  In these situations, a father should immediately involve the courts.  In most situations, the court should grant the parties joint legal custody, because NM presumes that it is in the child’s best interests.

 

FATHER’S RIGHTS AND 50-50 TIME-SHARING IN ALBUQUERQUE NEW MEXICO

 

Time-sharing is addressed on a case-by-case basis.  Fathers do not have a legal right to a specific degree of time-sharing.  Ultimately, the assigned judge has immense power to determine the appropriate time-sharing schedule, and it is extremely difficult to overturn this judge’s decision on appeal.

In cases where status quo time-sharing has not been developed, Albuquerque Judges gravitate towards the “Suggested Visitation/Time-Sharing Guidelines” that were created by developmental psychologists.  Albuquerque judges gravitate towards these Guidelines in order to provide consistent and predictable systems of time-sharing that are based on a child’s age.

Click here to view the Suggested Visitation and Time-sharing Guidelines.

Fathers  that desire 50-50 time-sharing with young children are generally shocked by the Suggested Guidelines.  As you can see, the Guidelines reflect the belief that a young child’s developmental needs are best met with one primary home, and short, frequent visits with the other parent.

Whether right or wrong, mothers are generally named as a young child’s primary care-giver, absent a showing that the mother is unfit to care for the child.

The tendency to grant mothers primary custody in cases involving young children has deep historical roots.  The “Tender Years Doctrine” is an archaic legal principle in family law that has existed for hundreds of years.  This Doctrine presumes that mothers should be granted primary custody in cases involving young children (generally four and under).

 

DOES THE TENDER YEARS DOCTRINE AFFECT A FATHER’S RIGHTS IN NEW MEXICO?

 

Although the Tender Years Doctrine is not a valid and enforceable legal principle, its presence lingers.  In Ettinger v. Ettinger, 72 N.M. 300, the New Mexico Supreme Court found that Mother was unfit to care for the parties 2 ½ year old daughter.  As such, the court placed the child with Father.  Mother appealed, arguing: “it is universally recognized that the mother is the natural custodian of her young, in legal contests for the child custody of minor children, the law favors the mother.”

The court ultimately rejected Mother’s argument, reasoning, in part: “. . . the rule that a mother should be given preference in awarding the custody of her children is not inflexible, nor is the mother entitled to the child custody of a daughter as a matter of law, the welfare of the child being paramount, the preference in favor of the mother of young children being resorted to merely to aid the court to determine what is for the best interests of the children.”

Granted, Ettinger v. Ettinger is a case from 1963.  Nevertheless, the case demonstrates that a custody dispute went all the way to the New Mexico Supreme Court, based in large part on the Tender Years Doctrine.

Fast forward to 2021 and New Mexico courts generally grant mothers primary custody over young children unless the mother is found to be unfit to properly care for the child.  Nevertheless, this tendency generally applies to cases where a status quo was not developed prior to the courts involvement.

As mentioned above, NM courts are reluctant to disrupt a child’s status quo time-sharing.  Therefore, if possible, it is always best for fathers to immediately request optimal time-sharing, to develop a status quo that will influence the Judge’s initial determination regarding the appropriate system of time-sharing.

New Mexico courts favor the consistency and predictability of status quo. Accordingly, fathers should take immediate action and request ideal time-sharing, rather than sitting back and banking on the ability to assert “Father’s Rights.”

 

505) SANCHEZ IS A FATHER’S RIGHTS ATTORNEY IN NEW MEXICO THAT CAN ANSWER YOUR QUESTIONS ABOUT FATHER’S RIGHTS IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions about father’s rights regarding child custody in Albuquerque, New Mexico?  New Mexico father’s rights cases often require the experience hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your father’s rights case in Albuquerque, New Mexico.  Sanchez can be reached by calling (505) SANCHEZ.