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What is the difference between legal and physical custody?
Legal custody refers to who has rights to make important decisions about the child such as where the child will attend school, and who the child’s doctor will be. Generally courts want parents to have joint legal custody so that both parents are involved in making decisions about the child. Physical custody refers to whom the child lives with. Generally when a child is very young, courts want one parent to have primary physical custody of the child so the child lives most of the time with one parent.

Who has the right to primary physical custody of the child?
Primary physical custody describes the situation where the child lives with one parent most of the time. A Judge will usually give primary physical custody of a child to the person who has provided most of the care for the child. Mothers often have primary custody, but if a father has provided most of the care for his child he could be granted primary custody.

If the father’s name is not on the birth certificate, does he have the right to make decisions for the child or have visits with the child?
If the father’s name is not on the child’s birth certificate, he is not the legal father. He does not have the right to make decisions for or have visits with the child.

If the names of both parents are on the birth certificate, who has legal custody of the child?
If both parents’ names are on the birth certificate and no Judge has made a decision about custody, the parents have shared or joint legal custody. If the parents cannot agree about how to share custody of the child they may need to go to court and get a court ordered “Parenting Plan”.

If my name is not on the birth certificate, how can I establish myself as the legal father of my child?
If the father’s name is not on the birth certificate and he has not signed an Acknowledgement of Paternity form, either parent can file a petition with the District Court to have a Judge make a decision about paternity and issue an order declaring someone to be the legal father of the child. There does not need to be a DNA test to establish someone as the legal father if both parents agree that the person is the father.

Can I get sole legal custody of my child?
To get sole legal custody, you must prove that the other parent either cannot or will not work with you to make good decisions for your child. Even if you get sole legal custody, the court will usually allow the other parent to visit the child.

If the child has been living with the other parent, can I get custody and have the child live with me?
To change custody, you must prove that there has been a change in circumstances since the last court decision about custody. You must also prove that it would be in the child’s best interests to live with you.

Can I ask the Judge to order that the other parent’s visits be supervised?
The judge will only order supervised visits if there is clear proof that a parent is not able to keep the child physically or emotionally safe during visits. The supervisor can be a friend or family member. There are companies that supervise visits for a fee.

Can a parent’s visits be stopped if he or she is not paying child support?
No. Decisions about child support and a parent’s visits are completely separate. A parent’s failure to pay child support does not affect his or her right to visit with his or her child.

Pegasus Legal Services for Children Helps young parents through age 19 with paternity, custody, timesharing, and child support. (505) 244-1101
Law Access New Mexico Provides legal information, advice, brief service, and referrals to eligible low-income New Mexicans over the telephone. Statewide: (800) 340-9771, Albuquerque: 998-4529
Domestic Violence Helpline Legal information regarding domestic violence, sexual assault, and stalking. 505-243-4300 or toll-free 1-877-974-3400
National Domestic Violence Hotline Hotline provides 24-hour confidential and anonymous support through advocacy, safety planning, resources and hope. 24-hour Hotline: 1-800-799-SAFE(7233)

DISCLAIMER: This website is provided for informational purposes only. Nothing on this website shall be construed as legal advice nor does the information provided constitute the formation of a lawyer/client relationship. We take no responsibility for errors.