Legal Custody v. Physical Custody

Mother and two children walking in New Mexico open space

If you are involved in a custody proceeding in New Mexico, you will most likely hear the terms “legal custody” and “physical custody”. These two terms mean completely different things, are not interchangeable, and are often not explained in court.

What is legal custody in New Mexico?

Legal custody involves the decision-making power for your child. New Mexico has a presumption of joint legal custody, which means both parents are involved in making decisions for their child. These decisions range from what school your child should go to, who his/her pediatrician should be, after school sports, church, and any elective medical procedures. Day-to-day decisions, such as what to feed your child, how to dress him/her, etc., are decided by the parent who is caring for the child at that time.

Legal custody also means both parents must agree before making a decision. For example, if you want to enroll your child in after school football or send him/her to counseling, the other parent must agree with the decision before you can enroll your child. It is important to remember all decisions are to be made in your child’s best interest. The Court can be used as a last resort to make the decision.

What is physical custody in New Mexico?

Physical custody, simply put, is who actually has the child in their care. Joint physical custody means both parents have time sharing with the child. It does not necessarily mean both parents have equal time with the child. The goal for physical custody is 50/50 custody, where each parent has equal time with the child. However, the standard for determining physical custody is the best interest of the child.

The Court looks at many factors in determining the best interest of the child, including, but not limited to:

  • the wishes of the parent and child
  • the family dynamics between parent and child
  • the parent’s ability to provide safe and appropriate care for the child
  • the physical and mental health of everybody involved.

It is important to note New Mexico courts are not allowed to consider the gender of the parent when determining custody and time sharing.

If you have questions about time sharing and custody or are having custody issues with your child’s other parent, contact your family law attorney or call our office at 505-872-0505 to schedule an appointment with one of our family law attorneys.