Updated September 21, 2023
A New Mexico custody (parenting) plan is a required document for parents seeking shared custody of a minor child. It sets forth all the terms between the two parents with regard to childcare responsibilities, decision-making authority, visitation, and more. It must be submitted to the court for approval.
Child Custody Factors
New Mexico courts consider the following factors when determining a custody arrangement (§ 40-4-9):
- The wishes of the child’s parents
- The wishes of the child
- The interaction and interrelationship of the child with their parents, siblings, and anyone else affecting their best interest
- The child’s adjustment to their home, school, and community
- The mental and physical health of all individuals involved
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How to File for Custody in New Mexico
A custody or parenting plan is required whether or not the parents of the minor child or children are married. If the parents are married, custody matters are decided as part of divorce proceedings. If the parties are not married, custody is determined through what is known as a Petition to Establish Parentage, Determine Custody and Time Sharing.
1. Agree on a Parenting Plan
Whether or not the parents are married, prior to opening the case, it is recommended that the parents discuss the terms of custody and reach an agreement.
For parents who are unmarried, a parenting plan is contained in a Petition to Establish Parentage, Determine Custody and Time Sharing. There is no uniform statewide form for this. Rather, the form will depend on the judicial circuit in which the custody action is taking place. In most judicial circuits, there is an official self-help service that will provide a form specific to circuit.
Married parents will eventually be required to submit a parenting plan for approval by the court. If the parents are unable to reach an agreement, they should first submit a request to the court for mediation, using Form 4A-204 NMRA. If they are unable to reach an agreement through mediation, or if both parents believe that mediation will be unhelpful, they may request a hearing in front of a judge, who will decide on parenting arrangements, using Form 4A-206 NMRA.
2. Calculate Child Support
Fill out New Mexico’s interactive Child Support Worksheet to estimate how much child support may be ordered by the court based on the custodial and non-custodial parents’ gross income, the number of children, and other relevant factors.
3. Complete and File Required Forms
To file for divorce, complete the Petition for Divorce and other required documents.
File the completed forms with the court clerk’s office in the county where the child resides. The filing fee for custody cases is $137 unless a waiver is approved.
4. Serve Complaint
After the forms have been filed with the court, serve the other parent with a copy of the filed documents, in addition to a summons. This can be done by using the county sheriff’s office, a private process server, or anyone who is age 18 or older that is not involved with the case. Proof of service must be provided to the court.
5. Attend Mediation or Hearing
Once the proof of service has been provided to the court, a hearing date will be scheduled. At the hearing, the judge will consider all the factors of the case and consider the proposed parenting plan to determine whether it serves the best interest of the child. Once approved by the court, the parenting plan becomes a court order that is legally binding.
Custody Laws
- Child’s preference: If the child is age 14 or older, the court will consider their preference with regard to custody. (§ 40-4-9(B))
- Grandparents’ visitation rights: § 40-9-2
- Parenting plan: § 40-4-9.1
- Temporary visitation: § 40-10A-304
- Uniform Child Custody Jurisdiction and Enforcement Act: § 40-10A-105
Related Forms
