How to Get Sole Custody and When to Pursue it

Very few issues in the field of family law are as emotional as child custody. Parents who are divorcing often have concerns about child custody, and some question the ability of their partner to care for their children by themselves. This tends to be where the topic of sole custody is raised, and while it may seem appealing to some people, there are significant legal implications that must be considered before proposing it as a solution.

Understanding sole custody

Sole custody grants legal and physical custody of children to one parent, making them solely responsible for their children’s welfare and upbringing. The New Mexico court system tends to prefer joint custody and believes that it is better for children to spend time with both of their parents in most cases [1].

The court will consider a number of factors when evaluating proposed custody arrangements, including:

Parental fitness: The court will consider the extent to which each parent is mentally and physically capable of caring for and providing for their children during their custody periods.

Continuity: The court will try to arrive at a custody arrangement that prioritizes the stability and continuity of the children’s lives. The judge will consider the extent to which the children are bonded to each parent and the potential impact to the children should sole custody be awarded.

The child’s preference: Depending on the age and maturity level of the children involved, they may be allowed to express their preference to the court.

Historical abuse or neglect: Custody decisions will be significantly influenced by any historical neglect or abuse by either parent.

Seeking sole custody

No parent is ever guaranteed to obtain sole custody as the courts prefer to award joint custody whenever possible. However, there are some circumstances in which an argument for sole custody may be appropriate. These include:

Safety concerns: If one parent can prove that their children will be at risk of harm if they are in the care of the other parent, due to abuse or neglect or the parent’s substance abuse issues, the court may award sole custody to protect the children. Supervised visitation may be ordered instead.

Parental unwillingness to share custody: If either parent does not want to fulfill their parental duties by sharing custody, the court may deem that parent unfit to have joint custody and judge sole custody to be in the children’s best interests.

Geographic complications: If one parent intends to relocate to the extent that shared custody is impractical or detrimental to the children’s stability, sole custody may be awarded to ensure stability in the children’s lives. However, time sharing may be ordered during school holidays or when practical.

If any of these conditions apply to your individual circumstances, it is recommended that you consult with a law firm that is experienced with all matters regarding child custody in Santa Fe ( for tailored advice and guidance.

Applying for sole custody

Parents seeking sole custody must file a petition with the appropriate court in which they outline the reasons they feel sole custody is appropriate and provide evidence to substantiate their argument wherever possible [2].

The court will consider the evidence that is presented by both parents and make a determination that is in the best interests of the child.

Should you pursue sole custody?

Filing a petition for sole custody is a bold move that underlines your lack of trust in your partner to co-parent their children. Even though you may feel that sole custody is advantageous for providing your children with stability and consistency, you must consider the potential implications, which include:

Damaging your future co-parenting relationship: Unless you can prove that your partner poses significant risk to your children and are able to entirely block their access to them, there will always be a need to co-parent to a certain extent. Applying for sole custody can severely strain this relationship and make future decision-making more challenging.

Emotional impact on the children: Depriving your children of a relationship with one of their parents can be emotionally damaging for them, particularly if their wishes do not align with your own.

Extending the legal process: Custody disputes extend divorce proceedings and introduce additional costs and emotional trauma for all parties. Although mediation can help to overcome some of the challenges associated with identifying an appropriate custody solution, the bad feelings generated by the battle will persist.

Although there are some circumstances in which sole custody is appropriate, you must take the time to consider your position rationally and with the best interests of your children in mind. At the Law Office of Dorene A. Kuffer, we are experienced in all aspects of family law and can help you reach an acceptable resolution of your child custody case, protecting the well-being of your children and preserving a healthy co-parenting relationship with your partner.