Custody When Never Married
Custody of a child when the parents are not married is commonly referred to as a “Parentage” matter. Parentage matters are governed by NMSA 40-11A. The beginning of the process includes establishing the paternity of the Father of the child. After paternity is established, the Court then looks to determine the following issues:
Custody: Legal custody of a child is presumed in the best interests of the child in the initial custody determination, and the Court will look to determine if joint custody is in the best interests of the child in the long term. Custody is determined on a case-by-case basis and the Court will look at the history of the parenting relationship between the parties if there is a primary caregiver to the child, and the ability of each parent to parent the child. Custody is the decision-making power for the child when it comes to medical care, school, religion, and other major parts of the child’s life. It is important for the parents to work together to agree on these decisions as it is always best to keep these types of decisions out of Court.
Timesharing: Timesharing varies based on the age of the child. If the child is under the age of 6 then the Court may look to depend on one parent more than the other as traveling from home to home frequently could negatively affect the child. From the ages of 6-13, the Court may allow a more equal timesharing schedule if both parents are willing and able, and there are no pertinent issues concerning either parent, such as alcohol/drug abuse and criminal issues. When the child is a teenager, timesharing may become more complicated as the child could be more vocal about the timesharing schedule and the Court may take the child’s opinion into consideration at this time. It is important for the parents to work together on a timesharing schedule that benefits the child and does not raise further issues. An example of this is having exchanges at school where the parents drop off and pick up the child from school instead of face-to-face exchanges.
Child Support: Child support is different in Parentage matters than Divorce matters, as Divorce matters, only order child support from the present time moving forward, but Parentage matters can go back up to twelve years prior to the filing of the matter for child support arrears, as well as child support moving forward. This is due to the fact that prior to the establishment of paternity after opening the Parentage matter, the law presumes that there was no support provided to the child. The Court does consider whether the presumed father absconded or could not be located and whether there are any equitable defenses. It is important for the parents to work together on child support to prevent any financial hardship for either parent.
Parentage matters have many considerations looking at the past relationships of the parents and the child, and looking forward to what is in the best interests of the child. Contacting a lawyer to help navigate the Parentage process can help parents work together and come to an agreement that works best for their child.
Please get in touch with our office if you have any questions about the Parentage process.
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