New Mexico law assumes that it is in the best interest of a child to spend time with both of their parents, even after the relationship ends and the parents separate. This is known as joint custody and the intention is to ensure a fair division of parental responsibilities between the child’s parents and provide the optimal relationship with both parents to ensure the best interests of the child(ren). However, this is simply a presumption. The Court is ultimately guided by the best interests of the child and those interests will differ in each case. A number of factors will be considered by the Court in reaching a custody determination.
Unless there’s an agreement between parents, it’s up to the courts to decide the extent to which physical custody of a child (also known as “visitation” or “timesharing”) should be awarded based on the evidence that has been presented. If a custody suit has been initiated, parents must not unlawfully withhold custody of their child from their ex at any time as doing so could result in legal action being taken against them for violation of Court orders.
What to Do if Your Co-Parent is Withholding Visitation
Child custody and visitation is an area of law that is taken very seriously by the family law courts of New Mexico. If you have a formal court-ordered visitation schedule and your co-parent is refusing to abide by it or is withholding parenting time, you should contact an attorney who is experienced in child custody in Santa Fe or Albuquerque to advise you on the best course of action.
Regardless of the behavior of your ex-partner in withholding parenting time, you must not fall into the trap of withholding child support payments or engaging in any other unlawful activities, such as harassing your co-parent or intercepting your child from school, as this could result in legal action being taken against you. The Court does not generally consider one wrong to warrant another wrong. In other words, just because your ex does something they shouldn’t or ignores court orders, you are not allowed to ignore court orders. You should remain reasonable and pursue your case for joint custody in a lawful manner. Making poor choices or rash decisions during this time may backfire significantly.
Instead, you will need to contact an attorney to ensure the withholding parent is held accountable for unjustly withholding your children. This will typically involve the filing of custody proceedings or the filing of motions into your existing custody suit.
How to Withhold Visitation Due to Safety Concerns
Certain situations exist where the Court has not yet established jurisdiction over your children and emergency arises. In this case, withholding children in order to protect them can be the best and wisest choice where doing so is not in violation of any Court orders. However, withholding visitation due to safety concerns where custody has already been determined by court order is a significant action to take and one that should not be taken lightly. Court orders should not be violated.
If your child is in the care of the co-parent and you have concerns about their immediate safety, contact the police first. Once the child is safe, follow up with legal action to prevent the situation from arising again in the future. While the interests of a child are usually best served by spending time with both parents, when exceptional circumstances dictate otherwise, it’s essential that the custody order reflects these circumstances.
A common scenario where this arises is where one parent is abusive to the other or to the children. Keep in mind that New Mexico allows for fast and free filing of domestic abuse charges which can result in an almost immediate custody determination. You must demonstrate to a judge that domestic abuse has occurred as well as the reasons you believe your former partner cannot be trusted to care for your children as a result of that abuse.
Ultimately, if you have an existing custody case, a new custody determination must be made. The reasons a court may deny visitation to your co-parent are extensive and can include such things as physical abuse, drug or alcohol addiction, a criminal activity, or significant health issues that would render them unable to care for the child when in their custody. The overarching theme is the necessity of showing the Court that it is not in the best interests of your child(ren) to be in the care of the other parent.
A common, and commonly frustrating, mistake parents make is assuming that the other parent’s conduct toward themselves is a legitimate basis to withhold custody. However, the Court considers your relationship with the other parent separate and distinct from that parent’s relationship with your child(ren). For example, a parent physically abusing the other parent outside of the knowledge or presence of the children will not necessarily equate to the abusive parent losing custody of the children or enable one to withhold their children from the other. Again: the court will determine the best interests of the children in order to make custody determinations. However, this is extremely fact-specific and not a hard-and-fast rule.
If you find yourself in the situation where you must violate a court order in order to protect your children, contact an attorney right way. If you otherwise need legal counsel to discuss your particular circumstances to determine your next course of action, or modify or retract a custody arrangement with your ex-partner and co-parent, contact the Law Office of Dorene A. Kuffer today. One of our experienced family law attorneys will support you in achieving a fair outcome that is in the best interest of your child.