IN PLAIN ENGLISH
How custody works in New Mexico
New Mexico splits custody into two parts: physical custody (where your child lives) and legal custody (who makes decisions). [NM-P1] Either can be sole (one parent) or joint (shared). [NM-P1] The court decides custody based on your child's best interests. [NM-P1]
New Mexico law presumes that joint custody is in a child's best interests when custody is first decided. [NM-P8] Joint custody means both parents share major decisions and each has well-defined periods of responsibility; it does not mean an equal split of the child's time or of costs. [NM-P1, NM-P8] Before joint custody is granted, the court approves a parenting plan that divides the child's time. [NM-P8]
There is no statewide standard schedule. [NM-P2] Parents fill out a custody plan, the statewide form is 4A-302, and it asks you to write out your own time-sharing schedule, holidays and vacations. [NM-P2, NM-P3] When custody is contested, the law says the court is to refer it to mediation if feasible, and you can also ask for a referral. [NM-P1, NM-P8]
Words you’ll see in your papers
- Legal custody
- Who makes decisions about your child, such as school, doctors and activities. [NM-P1]
- Physical custody
- Where your child lives. [NM-P1]
- Joint custody
- Both parents make major decisions together and each has significant, well-defined periods of responsibility for the child. It does not mean equal time or splitting costs equally. [NM-P1, NM-P8]
- Sole custody
- One parent, called the custodial parent, makes the decisions, and the child usually lives with that parent. The other parent may visit the child. [NM-P1]
COMMON QUESTIONS
What parents in New Mexico ask first
Does New Mexico start from 50/50?
No. [NM-P8] New Mexico law presumes joint custody is best for a child when custody is first decided, but joint custody does not mean an equal split of time or costs. [NM-P1, NM-P8] How time is actually divided is set in the parenting plan the court approves, so check your own order. [NM-P8]
What does the judge look at?
Your child's best interests. [NM-P1] The courts list factors such as whether your child has a close relationship with each parent, whether each parent can care for your child, how often each parent and your child are in contact, whether each parent respects the other's rights, where each parent lives, and whether the parents can communicate and agree about your child's needs. [NM-P1] For time-sharing, the judge also weighs things like your child's well-being, the stability of each home, any history of drug use, your child's preference, your child's relationship with each parent, and work schedules. [NM-P1]
Is there a standard schedule?
No statewide one. [NM-P2] The statewide custody plan form has blanks for you to describe your own schedule, choose who has each holiday in even and odd years, and set vacation time. [NM-P2] Some courts publish their own guides to help; see the Albuquerque spotlight below. [NM-P5]
Does my child get to choose?
Not alone. Your child's wishes are one factor the judge weighs. [NM-P1, NM-P8] If your child is 14 or older, the judge must consider who your child wants to live with before deciding custody, but your child's choice does not decide it alone. [NM-P8] A child's testimony about this is heard privately in the judge's chambers. [NM-P8] For questions about a particular situation, the court's self-help center, a lawyer or legal aid can help. [NM-P1]
Can I move with my child?
Check your custody plan first. [NM-P2] In the statewide joint custody plan, the city and county where the parents live cannot change unless both parents agree in writing or the court changes it. [NM-P2] Under a joint custody order, a parent who plans to move to a different city or state must give the other parent 30 days' written notice of the date and destination. [NM-P8] Parents with joint custody must also talk with each other before major decisions, including moving. [NM-P1, NM-P8]
Can the order be changed later?
Yes, but only after a substantial and material change in circumstances, such as a move or a new school. [NM-P1] The parent asking for the change should also be able to show the current arrangement is causing a problem. [NM-P1] Your court's self-help center has forms for modifying or enforcing a custody order. [NM-P6]
We were never married. What happens first?
You can file a parentage case, also called a paternity case, which can establish who the parents are and also decide custody and child support. [NM-P6] Paternity has to be established before child support can be ordered. [NM-P1]
What if I am not safe?
When you ask for an order of protection, you can ask the judge for temporary custody of your children and explain why; the judge may grant it if your children are also in danger of abuse. [NM-P4, NM-P8] Custody given with an order of protection is temporary: it lasts up to six months, and the judge can extend it once, for up to six more months, for good cause. [NM-P4, NM-P8] For a long-term custody decision you file a separate custody case. [NM-P4] In a custody plan, the judge can order supervised visitation or no visitation until further order of the court. [NM-P1, NM-P2]
Free, official places to start
- NM Courts Self-Representation: Child Support & Custody
The courts' plain-language FAQ on custody types, joint custody, time-sharing and changing an order, plus the statewide HelpLine, (855) 268-7804.
- NM Courts: Form 4A-302, Custody Plan and Order
The statewide custody plan form you fill in with your own schedule, holidays, vacations and decision-making plan.
- NM Courts: Orders of Protection, Court Process
How orders of protection work, including temporary custody and child support.
LOCAL SPOTLIGHT · ALBUQUERQUE
Bernalillo County
Second Judicial District Court, Family Court
Albuquerque's Family Court has a Family Court Clinic that has offered mediation and consultations to parents with open cases for 30 years. [NM-P5] The Clinic publishes a Guide to Developing Time Sharing Schedules (September 2021 edition) with sections for each age group from birth to 18, long-distance parenting, safety concerns, holidays, exchanges and common two-week schedules. [NM-P7] The guide says it is not a rigid formula and warns against assuming any one schedule fits every child, so it does not replace the statewide custody plan or set a local default. [NM-P7] The Clinic also posts a parenting plan template, and the court's Center for Self Help and Dispute Resolution has family law forms, including for parentage and custody cases. [NM-P5, NM-P6]
- Second Judicial District Court Clinic: Guide to Developing Time Sharing Schedules (2021, PDF)
Age-by-age advice and sample two-week schedules to help you draft a time-sharing proposal; a guide, not a court order.
- Second Judicial District Court: Family Court Clinic
Clinic services, the parenting plan template (English and Spanish), questionnaires and contact information.
- Second Judicial District Court: Family Law Forms & Guides
The Albuquerque self-help center's family forms and phone help (505-841-6702) for parentage, custody, and modifying or enforcing orders.
Other counties in New Mexico can have different local rules and forms. Check the court where your case is filed.
THE DETAILED GUIDE · WHAT KIND OF SCHEDULE THE LAW PROVIDES
No fixed statewide schedule identified
Research overview
No fixed statewide calendar identified. Statewide Form 4A-302 is a customizable custody plan and order. [NM1, NM2]
Legal force and applicability
Case-specific calendar; no fixed statewide calendar identified in reviewed sources. Any custody/allocation presumption is separate.
Schedule & conditions
Read these topics together with your actual order. A model, form, or presumption does not automatically supply an enforceable calendar.
Regular school-year schedule
Form 4A-302 calls for a described time-sharing schedule; joint custody and sole custody/supervised options are distinct. [NM2]
Holidays and school breaks
Holiday dates and allocation are selected in the individualized plan, not prescribed statewide. [NM2]
Summer and vacation time
Summer and vacation time must be selected in the actual plan; no statewide allotment supplied by the form. [NM2]
Age and development
Age, relationship and needs affect best interests. No statewide age-tier fixed calendar identified. [NM1]
Safety & exceptions
Safety concerns can warrant supervision or no visitation; actual findings and order control. [NM1, NM2]