Albuquerque Divorce Lawyer Blog

What happens when one a parent wants to move out of state, or even to another city within New Mexico? Relocation of one of the parents often has significant consequences for child custody and timesharing.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion to modify the parenting plan and timesharing agreement as soon as they know they will be moving. A relocating parent should understand that New Mexico will maintain jurisdiction over child custody and timesharing despite the move.

If parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. Finally, if the change in the parenting plan, custody and timesharing is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult an attorney if they are faced with such a potential change to custody and timesharing.

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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.

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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.

www.CollinsAttorneys.com