When a baby is born to an unmarried couple, the mother of the child is automatically recorded as the legal guardian of that child. For a father to potentially have joint responsibility, his name needs to be on the birth certificate or have paternity established.
New Mexico law has a firm belief that, in most cases, joint custody is in the best interest of all children, unless determined otherwise. This means that the child is able to spend time with both parents and both parents must work together to provide that child with a stable and consistent upbringing. In cases where a couple is married and getting legally divorced, child custody is a central part of the discussions, but when an unmarried couple decides to separate, determining child custody can be more challenging and time-consuming than the former.
The Ideal Situation
In a perfect world, an unmarried couple going through the process of separating would put their child’s best interests above their own disagreements and frustrations to agree on a formal parenting plan. This would allow them to decide together where the child would live, which parent would be their primary caregiver, how often they would see or spend time with the other parent, and how the costs of raising that child would be shared.
The Real World
Unfortunately, the breakdown and dissolution of a relationship is rarely straightforward, and with emotions running high, children often get caught in the crossfire. When you’re in this situation, it’s essential to practice mindfulness and avoid using your children as weapons against your soon-to-be ex. While some will try to extort the other parent out of more visitation time or higher alimony/child support payments in exchange for something else, this may result in a poor outcome.
If this occurs, it is essential that a family law attorney with expertise in the field of child custody in Albuquerque is engaged at the earliest opportunity to ensure the child’s best interests stay as the highest priority. New Mexico courts will look favorably upon a parent who demonstrates a strong intent to cooperate over one who does not.
The Practicalities
Regardless of whether a separation is amicable or not, it’s always advised to ensure that child custody is formalized with a court order. This protects any children involved should something occur and helps ensures that a parent cannot unilaterally dictate what timesharing for the other will be. If both parents are legally recorded as having parental responsibility for the child in question, their attorneys and any necessary third-party mediators will support them in reaching a mutually satisfactory child custody agreement.
In cases where an agreement cannot be reached, the decision about how child custody will be handled will be made by the Court. The Court will reach a determination based on the best interests of the child. In order to make this determination, they will consider a variety of factors focused on the relationship that the child has with both parents, the individual abilities of both parents to meet the child’s needs, and the suitability of the parents to have joint custody of the child.
Once a determination has been reached, a court-ordered child custody agreement will be legally established and both parents will be bound to abide by it. This child custody arrangement will not change unless both parents agree to the changes or the changes are made by a judge due to a “material change” in the circumstances affecting the best interests of the child(ren).
If Joint Parental Responsibility Has Not Been Established
The question of child custody becomes more challenging when the father’s name was never added to the child’s birth certificate or paternity was never established. If the other parent does not agree to a father’s paternity, paternity must be established prior to seeking joint custody of the child. A family court can order genetic testing to confirm that the man claiming to be the child’s father is indeed their biological father and a legal parent of the child. The court may also weigh the particular circumstances of the child’s birth, relationship with the father or other circumstances and make a determination without the need for DNA testing. Once paternity is established, the family court will issue a ruling that both separating parties are legal parents of the child, and child custody discussions can then begin as outlined above.
Should genetic testing establish that there is no biological link between the child and the proposed father, there is typically no legal responsibility for him to be involved in the child’s life. A court will decide whether it is in the child’s best interest for a legal parental relationship to be created or whether sole custody should be appointed to the child’s mother.
Whether you’re thinking about starting a family with marriage or you’re planning to separate from your co-parent, the Law Office of Dorene A. Kuffer can help you to establish an appropriate custody arrangement, regardless of your marital situation. Contact us to learn more today.