How do I get primary custody of my children? This is probably the question I am most frequently asked. Understanding how to navigate your custody case can help you get the best results for you and your child.
To schedule a consultation with our experienced custody attorneys, contact us online or via phone at (505) 544-5126.
What Are the Advantages of Getting Primary Custody in New Mexico?
Having primary custody can present many advantages. You will likely receive child support, which can help maintain your previous lifestyle and even just make your rent or mortgage payment possible. Conversely, primary custody means you likely won't have to pay child support. This is not always the case, but generally so, as further explained below.
Primary custody also has many tax benefits. It allows you to claim the minor children as tax deductions and allows you to claim the child tax credits. Finally, it awards you stimulus checks, which are paid monthly through the remainder of 2021.
Primary custody simply means you have more timesharing in any particular week than your former partner does. You may have almost negligibly more time, four days to their three days. Conversely, you may have 12 days in two weeks, compared to their two days every other weekend. Both are forms of primary custody. But how do you obtain primary custody?
How Do I Get Primary Custody in New Mexico?
Certainly the old saying "possession is 9/10's of the law" remains in effect. If your former partner has left the home, they should have probably left the children with you, thereby establishing a new status quo as the primary custodian. Therefore, to retain primary custody, do not leave the primary home and do not leave the children.
Sometimes, one party is forced from the home by acts of, or alleged acts of, domestic violence. This is accomplished generally through an Order of Protection, commonly known as a restraining order. This is damaging to your claim for primary custody for several l reasons. First, it establishes the accusing parent as the temporary primary custodian. Additionally, proof of domestic violence statutorily one the grounds for the court to NOT award primary custody to the second parent.
If you are served with a protection order or otherwise evicted from the home for any reason, first, try to get the order dismissed. This can be done by entering a less restrictive, "No- Contact Order" in the divorce matter. If evicted, it is imperative that you ask the court for temporary timesharing. You must make it easy for the judge to make this decision.
Ensure You Have Proper Housing
The children require beds and bedrooms. The residence must be near the children's current school. I have never seen a court award significant timesharing to a parent who resides over half an hour from the children's schools. Be aggressive in getting the children's belongings. Don't allow the first parent to retain all of their belongings. This can be difficult as property distribution is often left to the end of the case, but frequent and persistent requests for these items will generally be heard. Additionally, in deciding who will be the primary custodian, the courts look at who has been primarily involved with the children.
It is pretty difficult to take primary custody from a parent who has been the one at home with the children. That parent is generally the one who takes the children to school, to activities to the doctor. If you want primary custody, ensure you are the parent engaged in these actions the majority of the time.
Try to Actively Care for the Children
Ensure you are the parent helping the children with homework and the parent personally involved in the children's activities, coaching the soccer team, attending swim meets. The courts also look closely at each parties' abilities to co-parent. Co-parenting is simply working with the other parent in parenting the children.
Obviously, you are not going to agree on many things. (especially if parenting is why you got a divorce in the first place). But look at it this way, if you had more input into the children's schools, then your former partner should have more say-so into your child's extracurricular activities. If your former spouse works in the schools or has special knowledge regarding local schools, let that person have more decision-making in this area. Parents who cannot co-parent are not given primary custody or can lose it after too many unilateral decisions not involving the second parent. Even if you are used to making all the decisions, include your child's parent in all communications. Sometimes, that is all that parent needs to feel included.
Alternatively, co-parenting does not involve disparagement of the other parent. Disparagement can have many forms. It can be talking badly about the other parent in the presence of the children. It can involve talking badly to others when the children are around, even if they are in another room. Children are incredible listeners when they want to be. Disparagement can be actions such as not allowing photos of the absent parent, or phone calls. Disparagement can be throwing away or minimizing gifts from the absent parent. Stop these actions if they are occurring. If your child won't answer the phone, you initiate the calls to the absent parent. If the child says the gift is dumb, don't encourage it.
Set an Example for Your Children
Children follow your example. Primary custody is generally not awarded to the "fun" parent, despite misconceptions to the contrary. You and your child are not best friends. Children require discipline or consequences when expectations are not met. Your child doesn't need to always like you, but they need to know how to follow the rules.
This is a difficult one because as children get older, they are drawn to the "fun" parent and may reject the disciplinarian. However, two "fun" parents vying for custody make for one obnoxious child. Here you can be the parent who listens to your child while not granting all of the child's wishes.
Monitor Your Vices
My rule of thumb for alcohol is do not imbibe every day and never more than two or occasionally, three. This is not enough to catch the attention of a guardian ad litem or an alcohol test. Those who have been reported for alcohol problems cannot drink at all. None. One can recover from one DWI and still retain or obtain primary custody, but not a second incident. And drugs include nothing other than marijuana. Even marijuana poses risks.
If you want primary custody of your children, don't buy do not sell marijuana. Medical marijuana cards and usage without a card will not cause the courts to not award timesharing, but it can affect the court's decision. The rule of thumb here is, does the usage of any substance affect your parenting? If yes, you have a problem. Additionally, if the substance is not legal, there is a problem.
At Sandia Family Law, our attorneys have combined 40 years of experience in obtaining primary custody for our clients. You can find the complete list of pointers below. Do not leave the family home. If you must leave the family home, take the children with you. If you cannot take the children, immediately ask the court for timesharing and your equal share of the children's belongings. If you leave the family home, remain in the same neighborhood as the children's school and/or activities. Do not disparage the other parent or make it difficult for them to have timesharing or phone calls with the children. Do not identify as your child's best friend. Do not use illegal drugs. Do not use alcohol or marijuana to excess and limit your usage, if possible, to times the children are not present, especially if your children are very young. Be present in your children's lives. Take them to school, doctor appointments, activities. Be present in their activities. Help with homework. Be indispensable.
To schedule a consultation with our custody attorneys for your case, contact us online or via phone at (505) 544-5126.