It is often said that divorce is hardest on the children, who are faced with wondering why their parents split up, possibly feeling guilty for their perceived role in that separation and often having to get used to a new place to live. In New Mexico, the term child custody is a complicated concept; it refers not only to which parent has physical possession of the child, but also which parent has the power to make to make decisions about the children's lives. Physical custody is generally described in terms of time-sharing and periods of responsibility, or visitation, all of which are most often delineated in a document called a Parenting Plan.
The law in New Mexico presumes that joint physical and legal custody is in a child's best interest because a child is better off having two parents activity involved in his or her life. However, the preference for joint custody does not mean that the baseline presumption for a Parenting Plan is that each parent has the child with them exactly fifty percent of the time.
As a preliminary matter, Parenting Plans need to be age-appropriate. For example, a fifteen-year-old may be able to handle being away from one parent for weeks at a time, whereas an infant may not. Thus, the periods of responsibility, or timesharing, will depend on the age and emotional stability of each child.
In evaluating a time-sharing schedule the Court may consider, among other things: the wishes of each parent; and the wishes of the child. In making its decision, the Court will also consider the child's relationship with each parent and any siblings; the child's ties to their school and their community; and, the mental and physical health of everyone involved in the child's life.
If the child is over the age of 14, the Court and the parents must consider his or her wishes. Although the Court does not have to agree with the child, the Court will usually defer to the child's wishes unless those wishes are manifestly harmful to the child. The plain fact is that few parents can enforce their will over a teenager, the Court most certainly cannot. The Court understands this and will not even try due to the many possible harms such forced decisions may raise.