Divorce and child custody disputes usually go together. So if you are divorcing (or were never married but are parting ways with your child’s other parent), one of the biggest questions is likely to be who gets custody of a child in divorce.
You might also be asking yourself, what is primary custody, and how does custody work, exactly? We’ll take a look at those divorce custody questions and more here.
BEFORE you try to figure it all out on your own, you should have a professional review your divorce child custody in Bernalillo County. Schedule a confidential case review here.
How New Mexico family courts determine who keeps the kids after divorce
In the state of New Mexico, the family court will take into account a variety of elements before they reach any decisions regarding child custody and visitation. The best interest of the child is the primary concern and the assumption in New Mexico is that a regular or expanded standard possession schedule is in the best interest of the child.
The age of the child can also be a factor in determining who gets the kids in a divorce. For example, from birth to three years old, the court typically will give the parent who has been the primary caregiver of the child (either mom or dad) primary custody that is not to say always—unless the woman or man is a threat to the child.
That’s why the best interest presumption concerning a standard or expanded standard protection schedule doesn’t take effect until a child is three under our Domestic Relations Law.
Not that a father can’t get a stepped-up standard or a 50/50 custody agreement for a young child. There’s no presumption — like there is with a child over three.
The child’s preference could be taken into account to, the court in New Mexico is required to make a determination of what’s in the best interest of the child, but the wishes of the child, including a child 14 or older, are to be considered.
It’s common, for example, for a teen to really want to live with dad instead of mom, and if dad can provide a safe, healthy and stable environment for the child, then that’s a fine placement.
The courts also carefully consider what roles and responsibilities each parent has already been taking on. They want to establish which parent has served as the “primary parent,” meaning, the one engaging in the heavy lifting — taking kids to the doctor, dropping them off at school, assisting with homework, etc. That’s the parent who’s going to be named probably the primary caretaker and be the one who is most the decision-maker for the child.
Remember, the parents responsibilities and obligations can be the subject of negotiation in mediation but if the two parents fail to reach an agreement, the judge will look to the history of the parenting for guidance.
In addition to determining who has been the primary caregiver of the child the court will look at evidence of secondary best interest- Are there any concerns with one parent or the other?
The court looks at any bad things that would keep a parent from being the primary (or in custody modifications, the continuing) parent. That’s where you start to get into alcoholism, drug use, domestic violence or an unstable home or environment.
To learn more about how to get primary custody in your situation, including whether that’s even available to you, speak with a divorce lawyer to have your case reviewed and consider the options.
How to get primary custody or modify custody later
If you want primary or sole custody and you want to flip the other parent’s time with the child to you, you MUST have clear and convincing evidence that you’re the better parent than the other person.
New Mexico judges appear to believe in the cliché that the punishment should fit the crime. If you can’t prove the other parent unfit or provide proof for why he or she should not be the primary parent, there is no crime.
Why some dads don’t receive primary or 50/50 custody.
Often times we have fathers coming in to our law firm who say, “I want 50/50 custody.” But what they really want is credit for the child support they have been paying. If they have literally never done anything which could remotely be considered to be a 50/50 parent, it is unlikely their custody will be changed. Again, the child isn’t being exposed to anything criminal, if they’re in a safe, healthy, happy environment, with mom.”
Reasons some dad’s DO get 50/50, primary, or even full custody.
If the facts are substantiated where both parents are equally involved and sharing the parenting duties and both are working, then this is the perfect situation for a 50/50 custody schedule.
And, if the evidence establishes that dad’s the one doing the heavy lifting and mom’s not in that picture, or if mom is drug-addicted and dad’s always been the one taking care of those primary tasks, then that’s a that’s a great candidate for primary conservatorship or even sole custody for dad.
You see, our Fort Worth divorce attorneys LOVE fighting for father’s rights — whether that means fighting for father to be awarded primary or to modify and flip primary custody from mom to dad. If it’s what’s best for the child, why not?
Is it possible for a father to win custody in California?
How lucky we are to live in a time — thanks partially to those fighting gag rules and battle axos, and thanks also to increased male parental and nurturing role models in the public eye, and thanks as well to social media that showcases the positive examples of fatherhood — when there’s a more level playing field for fathers.
Certainly, towards dads or moms; obtaining full or sole custody is never easy in New Mexico now. New Mexico just, you know, do believe it’s in a child’s best interest to have a relationship with both of their parents. But we are always willing to work with dads to help them gain full custody if there is evidence of the mother being unfit or being a physical or emotional danger to the child.
If you want to get a good custody arrangement, you need to get it right from Day 1
And by day one, I mean what you provide for in your temporary custody orders. That’s because those temporary orders often set the stage for what will eventually be the final orders in divorce and child custody cases. It really all comes down to the importance of having a clear plan and a case strategy established in your case early on and sticking to it … which is really why that initial consult with your divorce lawyer is such a big deal.
It’s also important to get organized and be ready. At our Albuquerque family law office, we view mediation to be more than just a place that offers a divorce and child custody agreement. So when you go to mediation we think you’re going to try your case. This is why it’s important to gather evidence, research, documentation and timelines early, so that your divorce attorney has everything they need at the right time in order to negotiate a custody agreement that works for you.
Three other key things to keep in mind in the beginning stages of a child custody fight:
- Sometimes the outcome you desire, or what you think you want, simply isn’t possible, given how you have things set up or how you have behaved before you walk into your lawyer’s office.
- Once a custody situation is in place, changing it is difficult to accomplish.
- The standard of proof is more stringent in a modification than it is in the original. Just try to get it right the first time! It’s a doctor who specializes in child custody that counts.
Do you need a child custody advice from a family law lawyer in Albuquerque? And contact The Law Office of Anthony Griego LLC: 505-501-3110!
