The law in plain words
Under NMSA 40-4-9.1, "there shall be a presumption that joint custody is in the best interests of a child in an initial custody determination."
Wondering who usually ends up with custody? Our page on the chances of getting full custody in New Mexico explains what the figures can and cannot show.
What custody means in New Mexico
New Mexico's statute defines custody as decision-making.
- Custody: the authority and responsibility to make major decisions for the child, such as where they live, school, health care, religion and activities.
- Joint custody: a court order giving custody to both parents.
- Sole custody: custody given to one parent.
- Periods of responsibility: under joint custody, the set times each parent cares for the child.
- Visitation: the other parent's time, under sole custody.
The court forms call the schedule "time-sharing." The statewide form is the Custody Plan and Order.
Is New Mexico a 50/50 state?
No. New Mexico presumes joint custody, but joint custody "does not imply an equal division of the child's time." It does not mean an equal split of money either.
Each joint custodian must have "significant, well-defined periods of responsibility." Those periods do not have to be equal.
A 2019 bill to presume equal time-sharing did not pass. The joint custody statute has not changed since 1999.
How the joint custody presumption works
The presumption applies to a first custody decision. It can be overcome. For example, courts have ordered sole custody where parents were deeply incompatible.
- Agreements: if parents agree on custody, the court should follow the agreement unless it is not in the child's best interests.
- Reasons: the judge must explain why joint custody was granted or denied. A bare "best interests" statement is not enough.
- Gender: the court may not prefer a parent "solely because of gender."
- Parenting plan: joint custody needs a court-approved parenting plan before it is ordered.
Joint custodians must consult on major decisions. If they cannot agree, nothing changes until the dispute is resolved.
The best-interest factors
Under NMSA 40-4-9, the court considers all relevant factors, including:
- what each parent wants
- what the child wants
- the child's relationships with parents, siblings and other important people
- the child's adjustment to home, school and community
- the mental and physical health of everyone involved
For joint custody, section 40-4-9.1 adds more factors:
- whether the child has a close relationship with each parent
- whether each parent can care for the child in each period of responsibility
- whether each parent will accept all the responsibilities of parenting
- whether the child can keep strong bonds through predictable, frequent contact
- whether each parent can let the other care for the child without intrusion
- whether a workable parenting plan exists, ideally agreed
- how far apart the parents live
- whether the parents can communicate and cooperate about the child
- whether a court has found domestic abuse by a parent
The age-14 rule
Under section 40-4-9, if a child is 14 or older, the court "shall consider the desires of the minor" about where they live.
That preference is not binding. In Normand v. Ray (1990), the Supreme Court said a court "is not conclusively bound" by it. The judge still weighs every factor.
When a child testifies about their choice, the judge hears them privately in the judge's office. Whether to interview the child is up to the judge. A court reporter records it, but no transcript is filed unless there is an appeal.
Younger children's wishes are also a factor, weighed by maturity.
Mothers' and fathers' rights
Neither parent starts ahead. The court may not prefer a parent "solely because of gender."
Both parents keep access to the child's school, medical and dental records, even without custody.
A grandparent or other non-parent usually needs to show a parent is unfit, or that extraordinary circumstances exist.
If you were never married
Under New Mexico's Uniform Parentage Act, children of unmarried parents have the same rights as any child. An acknowledgment or a court ruling makes someone a legal parent. It does not set a custody schedule. A court does that in a parentage case.
- Acknowledgment of paternity: once filed with the vital records bureau, it equals a court judgment of paternity. Filing is free.
- Changing your mind: rescinding it needs a court case, within 60 days or before the first hearing about the child, if sooner.
- After that: it can be challenged for fraud, threats or pressure, or a serious mistake about the facts. The deadline is two years after filing, or two years after the signer turns 18, whichever is later.
A parentage case is filed in the county where the child lives or is found. The court can then set custody and time-sharing.
Domestic violence
New Mexico has no presumption against an abusive parent. The judge weighs all relevant factors, and abuse evidence can count. A formal court finding of abuse is a specific joint custody factor.
If abuse is found, the judge must make findings that the order protects the child and the abused parent.
- Mediation: contested custody normally goes to mediation. It must stop if a party alleges domestic violence or child abuse. It can go on only with court safeguards, or if the alleged victim asks for it.
- Orders of protection: a temporary order can be granted straight away, without notice, and can include temporary custody.
- The hearing: within 10 days of a temporary order. If none was granted, within 72 hours of filing.
- How long: custody terms in a protection order last up to six months, and can be extended six more.
Filing for an order of protection is free.
Emergency and temporary orders
- During a case: a parent can ask for temporary custody by motion, on court form 4A-202.
- Without notice: under court rule 1-066, a temporary restraining order needs sworn facts of immediate, irreparable harm. A lawyer must certify efforts to give notice, and a bond may be required. It lasts up to 10 days, and can be extended once.
- Police request: a police officer can ask a judge for an emergency order of protection. It can grant temporary custody. It lasts 72 hours or to the end of the next court day, whichever is later.
- Divorce cases: an automatic order stops either parent taking the children out of New Mexico without consent or a court order.
New Mexico courts can also act in an emergency to protect a child who is in the state.
Moving with your child
New Mexico has no general relocation statute. Under joint custody, a parent who plans to change city or state must give 30 days' written notice. It must state the date and destination.
Notice alone is not permission. If the other parent does not agree in writing, nothing changes until the issue is resolved or the court rules. In a pending divorce, an automatic order bars taking the children out of the state.
In Jaramillo v. Jaramillo (1991), the Supreme Court refused to create a presumption for either parent in a joint custody case. Both parents share the burden of showing what serves the child.
- A proposed move can be a substantial change that leads the court to revisit the custody plan.
- Being the main parent under joint custody gives no special advantage.
- Sole custody is different. An older Court of Appeals case favors the custodial parent's move, though Jaramillo left that open.
Changing custody
To change an existing order, the parent asking must show a substantial and material change in circumstances affecting the child. That is the test in section 40-4-9.1 for ending, or switching to, joint custody.
In Seeley v. Jaramillo (1986), the Court of Appeals said the original order is presumed reasonable, to keep the child's life stable. Remarriage and nicer housing alone were not enough.
In Thomas v. Thomas (1999), the parents' ongoing inability to cooperate, which was affecting the children, was enough.
The form to change a final custody plan is 4A-321.
Parenting plans, mediation and classes
- Parenting plan: it must divide the child's time and care into each parent's periods of responsibility. It can also cover school, health care, exchanges and how disputes are settled.
- Divorce cases: parents should try to file a joint parenting plan within 60 days of the petition.
- Mediation: where custody is contested, the court refers it to mediation "if feasible." Parents pay on a sliding fee scale.
- Recommendations: if a court counselor files recommendations, you have 11 days from filing to object in writing. Otherwise an order adopting them is entered.
- Classes: not statewide. The Third District (Doña Ana) and Sixth District (Grant, Luna and Hidalgo) require one by local rule.
The court can also appoint a guardian ad litem to represent the children.
How to file for custody in New Mexico
New Mexico must usually be the child's home state for the six months before you file.
- Choose the case type. Married parents ask for custody in a divorce, or in a separation case without divorce. Either is filed where either spouse lives. Unmarried parents file a parentage case where the child lives.
- Use the Supreme Court's forms. Self-represented parents must use forms 4A-100 to 4A-315 in divorce and custody cases. Form 4A-402 is the statewide Petition to Establish Parentage.
- Prepare a custody plan on form 4A-302. In most cases a self-represented parent must have it notarized. In agreed parentage cases, only the petition needs a notary.
- File with the district court clerk and pay the fee, or ask for free process.
- Attend mediation if custody is contested.
The New Mexico Courts self-help pages link to each district's forms.
How much does it cost to file for custody in New Mexico?
The filing fee is set by statute.
| Filing | Fee |
|---|---|
| District with a court mediation program | $137 |
| Other districts | $117 |
| Order of protection | Free |
| Acknowledgment of paternity | Free |
If you cannot afford it, apply for free process. People on benefits like SNAP or Medicaid are presumed unable to pay. Income at or below 185% of the poverty line can also show it. The court decides, and can grant a partial waiver.
What changed recently
New Mexico's custody statutes have not changed in years. The joint custody section dates from 1999, and the age-14 rule from 1977.
- 2025: a bill to limit court-ordered reunification therapy where there is abuse evidence died.
- 2025: a bill to replace the Uniform Parentage Act also died.
- 2024: the agreed parentage forms were simplified, with only the petition needing a notary.
- 2021 and 2023: child support rules changed.
The 2026 session made no custody changes.
Building the record
New Mexico judges ask whether each parent can care for the child, and let the other do the same without intrusion. Those questions are answered with dates, not adjectives.
Note each exchange and each period of care as it happens. Casewell keeps those notes and the messages behind them together, so a lawyer can read a clear timeline.
Before you record a call or a handover, check whether you can record your co-parent in New Mexico.
A clearer way to prepare
Come to court ready, not stressed.
Turn messages, receipts and everyday notes into a clear attorney-ready record.
New record
Late pickup
Pickup was scheduled for 5:00pm. The other parent arrived at 5:42pm.
Report ready
Your report is ready
Ready for your attorney or lawyer to review.
A New Mexico custody record
New Mexico judges weigh care, cooperation and predictable contact. Keep these items current so your facts are ready.
Keep the record New Mexico's factors ask for
Casewell keeps dated care, exchanges and the messages behind them in one private place. Export the period a lawyer needs as a focused PDF.
Is New Mexico a 50/50 custody state?
No. New Mexico presumes joint custody in a first custody decision, but joint custody does not mean an equal division of time.
At what age can a child choose which parent to live with in New Mexico?
No age lets a child choose. At 14 or older, the court must consider the child's wishes, but it is not bound by them.
Who has custody if the parents are not married in New Mexico?
Establishing parentage does not set a schedule by itself. Once parentage is established, a court can set custody and time-sharing in a parentage case.
How much does it cost to file for custody in New Mexico?
Usually $137 in districts with a court mediation program, or $117 elsewhere. You can apply for free process if you cannot afford it.
How do I get emergency custody in New Mexico?
If there is abuse, a temporary order of protection can be granted straight away and include temporary custody. A hearing follows within 10 days.
Can I move out of New Mexico with my child?
Under joint custody, give 30 days' written notice. The move needs written agreement or a court order, and neither parent is favored.
Sources
This page summarizes NMSA 1978 Chapters 34 and 40 and the New Mexico court rules and forms as of October 2026. It explains the law in general terms and is not legal advice.
- NMSA 1978, Chapter 40 — domestic affairs, including sections 40-4-9 and 40-4-9.1 checked
- NMRA Rule Set 4A — domestic relations forms checked
- NMRA Rule Set 1 — district court rules, including Rule 1-125 mediation checked
- Jaramillo v. Jaramillo, 1991-NMSC-101 — relocation checked
- Normand v. Ray, 1990-NMSC-006 — the child's preference at 14 checked
- New Mexico Courts — self-help checked
- New Mexico Legal Aid checked