Understanding Custody In The State Of New Mexico

How is child custody decided in New Mexico?

What types of custody exist under family law?

In the State of New Mexico, there are two types of custody in family law: Legal custody and physical custody.

Legal custody refers to five (5) main areas of concern: Residence, recreation, religion, medical and education.

Each parent has equal power in all five areas. If the parents cannot agree, they must have a third party decide, which is either a mediator or the Judge.

Physical custody is the time that a child spends with each parent. What days and times children spend with each of their parents is different in every case.

The Court will look at the facts of each case and determine what is appropriate based on the needs of the child and what is in their best interest. In New Mexico there is a presumption of joint legal and physical custody.

This is commonly referred to as “joint custody”.




Sole legal custody is extremely rare and is only awarded after the Court does a factual determination and finds that it is in the best interest of the child for one parent to have sole decision making authority because the other parent is unfit.

A common situation where a parent may be entrusted with sole legal custody is when the other parent suffers from addiction and substance abuse problems that have caused the children to be placed in harm’s way. Sadly, a parent suffering from addiction often is in and out of jail, on criminal charges related to their substance abuse, to the extent that the safety of the children has been put at risk.

The Court ultimately puts what is in the best interest of the children into place.

How the Court determines what is in the best interest of the children is determined by the evidence presented and a clear understanding of all of the facts. It is important to discuss all of the facts of your case with a skilled and experienced attorney to best advise the Court in your case.




While sole legal custody may give that one parent sole decision making power in the five (5) main areas that does not include how often or under what circumstances the other parent will see their children.

The time that children spend with each parent is decided by the Court separately from legal custody.

The Court will look at many of the same facts that determined legal custody when deciding on a visitation schedule, especially if one parent poses a safety risk to the children.

If it is a determined that a parent is unable to care for the child and poses potential harm to the child, the Court will look for ways the parent can still visit the child without putting their safety at risk.