Child custody and child support issues are often the main sticking points in divorces in New Mexico.
Unless the separating couple can come to an agreement regarding custody of their children, the parties’ issues will be resolved by New Mexico courts.
When children are with each parent, who makes decisions regarding the major areas of the children’s lives, and assuring the children are financially cared for in key aspects to a divorce with children. Accordingly, these issues are at the forefront of many divorce cases by the New Mexico courts.
The bottom line is that child custody and child support are treated as separate but related matters by the courts – and while custody decisions do affect support decisions, they are just one of several factors taken into consideration when establishing or modifying child support.
What are physical custody and legal custody?
When we talk about custody, it is important to first be clear on what type of custody we are referring to – physical custody or legal custody?
Physical custody
It is usually almost impossible for a child to spend equal time with both parents after they separate – and it may not be desirable to do so anyway for various reasons.
While both parents generally have equal rights to spend time with their children, practicalities usually mean that children live with one parent and the other has visitation rights (“parenting time”). There are physical custody arrangements that work for some families and not others. Many physical custody arrangements are as unique as the family itself.
In New Mexico, the courts see it as preferable for both parents to have regular, consistent contact with the children providing there is no powerful reason like substance abuse or living interstate or overseas to prevent this from being in the children’s best interests.
Legal custody
Legal custody establishes who makes the major decisions for the children. Decisions about a child’s upbringing, including religious training, education, extracurricular activities, medical treatment, residence, and more, fall under the responsibility of the parent(s) with legal custody.
The presumption in New Mexico is that it is in the children’s best interest that the parents share joint legal custody. as a child benefits from the input of both parents in making important decisions.
The court weighs multiple factors to determine child custody. If there is an ongoing history of substance abuse, physical abuse, or other undesirable behavior by one of the parents, the other parent may be awarded sole legal custody if it is deemed to be in the best interests of the child.
With joint custody, does child support need to be paid?
Simply put, yes, child support is paid with a joint custody arrangement unless your case has very specific circumstances. While child custody decisions do affect the calculation of child support payments, there are several other factors that must be considered in conjunction with custody.
As you have seen above, custody decisions relate to with whom the child lives and who makes key decisions while the children remain dependent upon their parents.
In New Mexico, support decisions are based upon the statutory Child Support Guidelines. These guidelines remain regardless of with whom the child lives or who makes the day-to-day decisions about upbringings, such as shelter, food, clothing, and other necessities must be provided.
The main factor in determining support is the respective income of both parents. Because these are not usually equal, one parent must usually pay support to the other. The other factors considered are the physical custody arrangement and the costs paid for insurance, work-related daycare, and additional expenses as outlined by law.
So, even if joint physical and legal custody is awarded by the courts and each parent shares equal time with the children it is an unusual scenario if there is no child support paid by one parent to another. The is because of the variable factors such as income and who pays certain costs on behalf of the child.
Do you have to follow the child support guidelines?
Clear guidelines are set out for calculating child support in New Mexico law because the state wants to assure that children are adequately supported and that parents of similar circumstances are consistently treated. The right to receive child support belongs to the child, not to the parent who receives it.
While judges have some discretion when making child support orders, if you and your ex-spouse are trying to work out child support without the assistance of the court, it is best to stick to the guidelines.
Any child support amount in New Mexico must be approved by a judge before it becomes legally enforceable. Additionally, deviations from the guidelines must have an adequate explanation on why the application of the guidelines would be unjust or inappropriate.
An agreed-upon amount of support that is higher than that calculated by the standard formula will likely be approved with adequate justification. The law does provide for paying a lower amount of support if justified, including if paying the guideline amount creates a substantial financial hardship in the paying parent.
The judge will review the case and determine whether the parties’ agreement is in the child’s best interests.
Can child support be modified?
If one parent experiences a substantial and material change in their financial circumstances, it is possible to request a modification of a child support order.
Generally, if the change of financial circumstances would result in a modification of support by 20 percent or more (up or down), it is worth making an application to the court for a modification.
However, a minor change in circumstances will not likely be considered justification for a modification. Courts do not like to make unnecessary changes to orders.
Do you need legal assistance with child custody or support?
Child custody and support issues are among the most complex legal issues to resolve. It is always wise to consult a professional family law practitioner to determine the issues in your case.
If you need legal assistance, start by calling a child custody lawyer at New Mexico Legal Group at 505.876.9175 to arrange a free case evaluation.