Child custody and parenting time

Child custody in New Mexico

Custody is mostly decided by state law. This page covers what New Mexico sets: the words it uses, how judges decide, how to ask the court, moving with your child, relatives and free help.

Move-away notice tool Parenting plan worksheet

What New Mexico calls custody

New Mexico calls it: custody (legal and physical; joint or sole) and time-sharing (visitation), set out in a parenting plan or custody plan
Time with each parent: time-sharing (visitation)

legal custody: The right to make major decisions for your child, such as where the child lives, medical and dental care, school or child care, religion, and recreation.
physical custody: Where your child lives.
joint custody: Both parents make major decisions together and each has significant, well-defined periods of responsibility for the child. It does not have to mean equal time or equal division of costs.
sole custody: One parent makes the major decisions and the child lives with that parent; the other parent may have time-sharing (visitation) and still has access to school, medical, and dental records.
time-sharing (visitation): The schedule of when your child is with each parent.

Law: NMSA 1978, § 40-4-9.1 (J), (L); NM Courts Self-Representation: Child Support & Custody

How the judge decides in New Mexico

What the law tells the judge to look at

In the order the law lists them.

What each parent wants for the child's custody.NMSA 1978, § 40-4-9(A)(1)
What the child wants about who the child lives with.NMSA 1978, § 40-4-9(A)(2)
How the child gets along with each parent, brothers and sisters, and anyone else who may strongly affect the child's best interest.NMSA 1978, § 40-4-9(A)(3)
How well the child is adjusted to home, school, and community.NMSA 1978, § 40-4-9(A)(4)
The mental and physical health of everyone involved.NMSA 1978, § 40-4-9(A)(5)

Other things the judge considers

Joint custody: in addition to the factors above, the judge looks at whether your child has a close relationship with each parent.NMSA 1978, § 40-4-9.1(B)(1)
Joint custody: whether each parent can give the child good care during that parent's time, including arranging care by others when needed.NMSA 1978, § 40-4-9.1(B)(2)
Joint custody: whether each parent is willing to accept all parenting duties, including taking the child and giving the child back at set times.NMSA 1978, § 40-4-9.1(B)(3)
Joint custody: whether the child can best keep and strengthen a relationship with both parents through predictable, frequent contact, and whether the child will benefit from both parents' involvement.NMSA 1978, § 40-4-9.1(B)(4)
Joint custody: whether each parent can let the other parent provide care without interfering, and respect the other parent's rights, duties, and privacy.NMSA 1978, § 40-4-9.1(B)(5)
Joint custody: whether there is a workable parenting plan, preferably one the parents agreed on.NMSA 1978, § 40-4-9.1(B)(6)
Joint custody: how far apart the parents live.NMSA 1978, § 40-4-9.1(B)(7)
Joint custody: whether the parents are willing and able to communicate, cooperate, or agree on the child's needs.NMSA 1978, § 40-4-9.1(B)(8)
Joint custody: whether a court has found that a parent or other person seeking custody committed domestic abuse against the child, a parent, or another household member. If so, the judge must explain how the order protects the child and the abused person.NMSA 1978, § 40-4-9.1(B)(9)
If the parents agree on a form of custody, the judge should follow the agreement unless it is not in the child's best interest.NMSA 1978, § 40-4-9.1(D)
When the judge grants or denies joint custody, the judge must explain the reasons; just saying it is or is not in the child's best interest is not enough.NMSA 1978, § 40-4-9.1(I)

What the judge may not consider

The judge cannot prefer one parent as custodian just because of gender (NMSA 1978, § 40-4-9.1(C)).

Joint custody

Yes. In a first custody decision, the law presumes joint custody is in the child's best interest. Joint custody does not mean equal time or an equal split of costs. A judge must approve a parenting plan before awarding joint custody.

The child's wishes

If your child is 14 or older, the judge must consider who the child wants to live with before deciding custody. For a younger child, the child's wishes are one of the factors. If the child is questioned about this, the judge does it privately in chambers, with a court reporter.

Domestic violence

A court finding that a parent or other person seeking custody committed domestic abuse against the child, a parent, or another household member is a factor the judge must weigh in deciding joint custody (the law sets no automatic presumption against custody), and the judge must make findings that the custody or visitation order protects the child and the abused person. Domestic abuse includes physical harm, severe emotional distress, or a threat causing fear of immediate physical harm.

Law: NMSA 1978, §§ 40-4-9, 40-4-9.1

If the parents are not married in New Mexico

Who has custody before a court order

The court's self-help pages say that when parents never married, paternity must be established first (by acknowledgment or a paternity case); they do not say who has custody before a court order.

To ask for custody, you must first be a legal parent of the child.

Establishing paternity

How: If both parents agree, they can sign an Acknowledgment of Paternity. If the father disagrees, the court can order DNA testing, and the local Child Support Services Division (CSSD) office arranges it; parents can also agree to DNA testing at a CSSD office. You can also file a Petition to Establish Parentage (form 4A-402, available in English and Spanish) in District Court and ask for custody and time-sharing in the same case.
Form: Acknowledgment of Paternity
Agency: New Mexico Health Care Authority, Child Support Services Division (CSSD)
https://www.hca.nm.gov/lookingforassistance/child_support/

Law: NMSA 1978, ch. 40, art. 11A (Uniform Parentage Act)

How to ask the court in New Mexico

Court: District Court in the county where you or the child lives
Court self-help center: https://selfrepresentation.nmcourts.gov/child-support-custody/
Court forms: https://nmcourts.gov/forms-files/child-support

Key forms

What it costs

$137 — Domestic relations filing fee in the Thirteenth Judicial District (Cibola, Sandoval and Valencia counties). Other districts may charge a different amount; ask your District Court clerk.

Fee schedule: Thirteenth Judicial District costs and fees list, effective Jan. 3, 2017 (Source)

Other fees

$0 — Domestic violence (order of protection) caseThirteenth Judicial District fee list (eff. 1/3/2017)

Fees by county

Fees are posted by each judicial district; the amount shown is from the Thirteenth Judicial District. Practices also vary by district (for example, mediation and parent education). Check your district court's self-help center.

Fee waiver: Application for Free Process and Affidavit of Indigency (form 4-222) and Order for Free Process (form 4-223)

After you file

Time to respond: 30 days after you are served with the petition. Ask the clerk whether these are calendar or court days.
Mediation: When custody is contested, the court must send that issue to mediation if feasible. You can ask for it with a Motion for Referral to Mediation (form 4A-204); in some cases the judge orders it automatically. In some districts you must try mediation if you cannot agree.
Parenting class: The judge may order both parents to attend a parent education workshop about co-parenting. Requirements vary by district.
Emergency orders: While a case is going on, you can ask for a temporary order with a Motion for Temporary Order (form 4A-202). When you file, the clerk may give you a Temporary Domestic Order (form 4A-201) that applies to both parents. If you need protection from domestic abuse, you can ask for an order of protection, which can give you temporary custody.

Which state's court decides: New Mexico has adopted the UCCJEA, the uniform law on this (NMSA 1978, ch. 40, art. 10A (§ 40-10A-209 is cited on the state's order of protection petition)). How the home-state rule works →

Law: NMSA 1978, § 40-4-9.1(G); forms 4A-100, 4A-201, 4A-202, 4A-204, 4A-401

Changing or enforcing an order in New Mexico

Changing an order

A custody order can be changed, but only if there has been a substantial and material change in circumstances, such as moving houses or schools. The parent asking for the change should show the current arrangement is causing a problem. For joint custody, the law says it cannot be ended unless there has been a substantial and material change affecting the child's welfare, so that joint custody is no longer in the child's best interest. Use the Motion to Modify Order (form 4A-321).

Law: NMSA 1978, § 40-4-9.1(A); NM Courts Self-Representation: Child Support & Custody

If the other parent does not follow the order

If the other parent does not follow the custody or time-sharing order, you can file a Motion to Enforce Order (form 4A-209) with the District Court. Visitation, custody, and child support are separate: a parent who does not pay support still has visitation rights. Joint custody disputes over major changes can also be sent to counseling, mediation, or arbitration, or decided by the court.

Law: Form 4A-209; NMSA 1978, § 40-4-9.1(J)(5)

Moving with your child from New Mexico

Under a joint custody order, a parent who plans to change their home city or state must give the other parent 30 days' written notice with the date and destination of the move. A move is a major change: under joint custody, parents must discuss it first, and if they cannot agree, it is decided by agreement, counseling or mediation, arbitration, or the court.

Notice required by: State law
Days of notice: 30

Law: NMSA 1978, § 40-4-9.1(J)(4)(a), (J)(3), (J)(5)

Move-away notice tool

Grandparents and other relatives in New Mexico

Grandparent visitation

Yes. Under the Grandparent's Visitation Privileges Act, a grandparent can ask the district court for visitation in some situations, for example during or after a divorce, legal separation, or paternity case, or when a parent has died. The judge decides based on the child's best interest and looks at things like the grandparent's past relationship with the child and with each parent, the current time-sharing schedule, and how visits would affect the child.

Custody by someone who is not a parent

A person who is not a natural or adoptive parent cannot be given custody unless the parent is shown to be unfit. A relative caring for a child may also ask for a kinship guardianship (the courts have a self-help page on it).

Law: NMSA 1978, §§ 40-4-9.1(K), 40-9-1 to 40-9-4, 40-10B (Kinship Guardianship Act)

Protective orders in New Mexico

What New Mexico calls it: Order of protection from domestic abuse (Family Violence Protection Act)

Custody and visitation in the order

Yes. On the petition (form 4-961) you can ask for temporary custody of your children, and the temporary order (form 4-963) can give you temporary physical custody. The final order (form 4-965) can include custody and support terms in an attachment. The order says it does not permanently decide custody; that is done in a custody or divorce case. The forms are available in English and Spanish.

Law: NMSA 1978, §§ 40-13-1 to 40-13-8; forms 4-961, 4-963, 4-965

Safety, hotline and protective orders in every state →

If you are in danger

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7, in English and Spanish: call 1-800-799-7233, text START to 88788, or chat at thehotline.org.

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Free help in New Mexico

Court self-help

New Mexico Courts HelpLine and court self-help centers

(855) 268-7804

https://selfrepresentation.nmcourts.gov/new-mexico-courts-helpline/

Legal aid

New Mexico Legal Aid (LSC-funded)

1-833-LGL-HELP (1-833-545-4357)

https://www.newmexicolegalaid.org/

Domestic violence help

New Mexico Coalition Against Domestic Violence: get help (local programs)

https://nmcadv.org/get-help-for-survivors/

Links you to local programs

More free help across the country →

Good to know in New Mexico

New Mexico law presumes joint custody is in the child's best interest in a first custody decision (NMSA 1978, § 40-4-9.1(A)).
When custody is contested, the court must refer it to mediation if feasible (NMSA 1978, § 40-4-9.1(G)).
State court custody and order-of-protection forms are available in bilingual English/Spanish versions (NM Courts forms library).

More RobinClaim guides for New Mexico → · All states

Sources

Last checked: November 2026