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Is there a court order in effect at this point?
A few minutes please
Has paternity been established?
I see. Thank you for that information. In most states, including NM, a bio father does not have rights until certain actions are taken. The mother is the legal custodian of the child until the father establishes paternity; similarly the father has no obligation to pay child support until paternity is established. http://www.lawhelpnewmexico.org/content/paternity-0. Once paternity is esablsihed, the courts will determine custody and visitation based on the "best interests" of the child. Basically the court will try to determine what living arrangement is best suited for the child's needs. If both parents express an interet in raising the child, the court will typically award a 50/50 custody division, provided that both parents are able to provide a stable and nurturing family. This requires filing a paternity action and/or a stipulation where the parents agree as to the best custodial arrangement
Please note: if there is no order for child support, the father typically is paying this voluntarily and it is difficult to get credit for past payments. The mother typically cannot get back child support, prior to the date of the filing of the request for child support. However, this does vary by jurisdiction. Similarly, paying child support in and of itself does not confer custody/visitation rights on a bio father
This is typically an additional service; but I would like to include the following sample forms good for certain NM jurisdictions to establish paternity and custody/visitation: https://firstdistrictcourt.nmcourts.gov/Forms/pdf/paternity%20with%20one%20child%20part%20II.pdf
We can't give actual legal advice; we can only give information because we aren't personal attorneys. But the court looks to the best interests of the child. If a parent (bio parent) is able to provide a safe environment that is often preferred over a third party arrangement, but it really comes down to what the court deems is in the child's best interest
One thing that is favorable to a bio parent: is a third party's reluctance to encourage the child's relationship with that parent, absent good cause. As most courts will consider "parental alienation" without cause as a negative factor.
Lastly most courts will prefer that both parents have an ongoing and continuous relationships with the child, unless there is a reason not to. 50/50 custody is very common, more so than 3rd party custody. I hope this helps!
Whenever there is a custody dispute and one can afford an attorney, it is best to hire one, as often times these issues become contentious and the manner in which paperwork is presented (ie declarations/affidavits etc) are presented can have a great impact, as the judge will often determine a case based on the documents presented.
You can google "non profit" "legal clinic" "child custody" in your county to see if there are any low/no cost clinics that will assist in the preparation of the documents (most will not present the case in court but will only review documents). Also check with your local law schools as they also typically have legal clinics. This can save one substantially in legal fees. Then you can hire a "limited scope attorney" to appear on your behalf as opposed to paying him/her to prepare the paperwork.
Here is a link to locate an attorney: http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
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