Child custody and time-sharing can be the most difficult and contentious part of any divorce. For most parents, the most difficult part of a divorce is not dividing the property and debt, or even issues of alimony, but rather deciding how to co-parent their children while no longer living together.
In New Mexico, the term custody is complex; it refers not only to which parent has physical possession of the children, but also which parent has the power to make the important decisions about the children's lives. This decision-making responsibility is often referred to as legal custody, which can be held solely by one parent or held jointly. This concept of legal responsibility is distinct from physical custody or time-sharing.
The preference of the New Mexico Courts is for parents to share joint legal custody, which does not mean that the parents have to agree on every aspect of their children's lives, but does require them to agree on the following issues: where the children go to school; the children's religious practice; the children's extracurricular or recreational activities; where the children live; and, medical treatment for the children.
In contrast, a parent with sole legal custody will not have to consult with the other parent about the major decisions in the children's lives. With respect to those decisions, the law in New Mexico favors maintenance of the status quo, which means that a divorce should not change the state of the children's lives with respect to these major issues, unless both parents agree to that change. Further, all custody decisions must be made in the best interest of the children. The factors used by the Court to determine what is in a child's best interest can be found in the New Mexico Statutes on Joint Custody, NMSA Section 40-4-9.