When it comes to child custody, it is always ideal when both parents can come to an agreement together without needing the court to intervene or have the judge decide for them. However, after a child custody agreement has been reached and has been in use for a period of time, one parent might decide it needs to be modified. If both parents can’t agree on all the changes, they may need to go before a judge.
Is modification warranted?
In most cases, a court will grant modification only if there has been what is considered a “material” change in circumstances that affect the child. These types of changes include the common scenarios outlined below.
• The child’s wishes: If a child is expressing a desire to spend more of his or her time with the noncustodial parent, that can constitute a material circumstance change. The court will consider the needs of the child first. His or her own desires are often taken into account, especially if he or she is older.
• A parent is moving: If one parent is moving to a different state or city, that is considered a material change. If the original agreement was issued by the New Mexico court, New Mexico will keep jurisdiction over all future custody issues. If a parent is planning to move, the modification process should be started as soon as possible.
• Negative parenting practice changes: If a parent is putting a child in danger or exhibiting poor judgment, the court is likely to modify custody. This includes alcohol or drug abuse, failure to take the child to school or leaving the child alone, especially if the child is younger.
Courts must see a material circumstance change to alter custody because children need stability and continuity in their lives to feel safe and happy. Frequent changes to custody will disrupt the child’s routine, something that can take a toll on them and cause upset, now and in the future. This is also why New Mexico has a waiting period of 12 months for making modifications to the custody plan. The court will generally be hesitant to make changes to a plan that was issued less than a year ago unless the child’s safety or health is at stake.
Mediation is an option
Even if parents do not agree on a child custody modification, they do have other options beside going to court and arguing in front of a judge. Mediation, where a third party works to help both parents come to an agreement, tends to be less stressful and less costly than going to court and having a judge make the final decision. The mediator must be a neutral party, which means the attorney of either parent can’t fill the role, and the judge will still review any agreement that comes out of the mediation sessions. However, both parents can still retain their own attorneys for the mediation process so they have help and someone who can give advice on their side. Note that mediators cannot provide legal advice to either parent in the sessions, so having an attorney for this process and custody modification in general is advisable.
Mediation may prove to be the ideal route for parents who want to negotiate a solution to their disagreement without going through a trial and need some outside help. If either parent is unwilling to compromise or is very angry, the mediation process may not be the best choice because a resolution is unlikely under those circumstances. This also applies if the well-being and health of the child is at stake. If that is the case, more urgent action is needed.