This is easily the most common question I am asked. When parents separate, they must deal with issues they have never previously faced. With whom are the children going to reside? What will happen if I go to court? Will the court order 50/50? Will the results in mediation be different from what the court would do? This blog will answer all of those questions.
The New Mexico courts are rather unpredictable when it comes to timesharing arrangements. Courts in the outlying counties tend to award 50/50 timesharing plans fairly consistently for all aged children. 50/50 plans can include 2/2/3 plans, 5/2/2/5 plans, 4/3/3/4 plans, or 7/7 plans, all of which will be discussed below. The judges in Albuquerque, however, are less likely to award 50/50 timesharing. The Albuquerque judges are also more likely to send timesharing cases to various “experts” from the Court Clinic to guardians ad litem (attorneys for the children) and 11-706 experts (psychologists to recommend custody). These are all either lengthy and unsatisfying processes or lengthy, expensive and unsatisfying processes.
In my mediations, we generally discuss the following plans.
9/5 schedule. With this schedule, one parent has nine days in a two-week period and the other has five days, either consecutively or split over the two weeks. With a 9/5 schedule, one parent might have Wednesday to Monday every other week (a consecutive period of five days). Alternatively, that parent could have a Thursday overnight during week one and a Thursday to Sunday or Monday during week two. This schedule helps eliminate the problem of going nine days between visits. This schedule is good for children ages 3 and up, but elder children prefer longer periods in each home.
4/3 schedule. With this schedule one parent has the same three days every week (usually Thursday to Saturday) and the other parent has the same four consecutive days each week, (usually Sunday to Wednesday) each week. However, with the 4/3 plans, the weekend is broken up and neither parent ever has a full weekend.
2/2/3 Schedule. With this equal timesharing schedule, Mother might have Monday to Wednesday, then Father will have Wednesday to Friday and Mother will have the weekend. For the second week, Father has Monday to Wednesday, Mother has Wednesday to Friday and Father has the weekend, alternating every two weeks. This is one of my least favorite schedules but it does accomplish 50/50 without long periods between each parent’s homes. But it is difficult for parties to exchange every two to three days, and it is also difficult for a child to adjust to a new home environment every two to three days.
4/3/3/4 Schedule. With this equal timesharing schedule, you also break up the weekend, with one party having Wednesday to Saturday (four days) and the other parent having Sunday to Wednesday (four days). During the second week, the first parent has Thursday to Saturday (three days), and the second parent has Sunday to Tuesday (three days) so that each parent has seven days in a two-week period.
5/2/2/5 schedule. With this equal timesharing schedule, one parent has physical custody every Monday and Tuesday, while the other parent has every Wednesday and Thursday. The parents then alternate weekends. On parent one’s weekend, they will have five days in a row, either Wednesday to Monday or Friday to Wednesday. With this plan the child never goes more than five days without seeing the other parent, while also minimizing exchanges between parents. This plan is also good for a younger child who shouldn’t generally go more than one day per year of age between seeing the primary parent.
7/7 schedule. With this schedule, the child spends one week in each home, alternating every Friday or Monday. This plan tends to resolve the parental conflict which always benefits the child. I still contend that timesharing conflicts between parents are much worse for a child than any type of timesharing schedule. The second benefit to a 7/7 schedule is that it provides the child a sense of security. It’s the same schedule every week. It also provides enough time in each home for the child to adjust to the new home, get comfortable in the new home before having to think about moving to the other home.
Other variations and factors. Children 0-1 will do better without a lot of overnights, if any, outside the primary home. However, the parties can still come up with a long-term plan that starts overnights shortly before age one and adds more time every two to four months. If a parent has not been involved at all, you might need to start slower than a 50/50 timesharing plan, but there is no reason not to start overnight timesharing fairly quickly and end at the 9/5 or 50/50 schedule.
In 2021, the Bernalillo County Court Clinic published their Guide to Developing Time Sharing Schedules. (see below). These guidelines do a great job of outlining five different age groups of children with recommendations for each group. For instance, timesharing with a baby is significantly different from timesharing for a 13-year old.
In each age category, there are factors to help determine the level of involvement each parent had with the child. Some parents were minimally involved with the child during the parental relationship. This is usually in cases where the parents did not reside together. While considering the level of involvement the parties must also consider the level of bond that exists between the parent and child. The court clinic identifies three levels of involvement, from the minimally involved parent, to the very involved parent where a strong and healthy relationship exists between parent and child.
Parties can spend a lot of time arguing over how the healthy the parent-child relationship is, or how involved the parent was during the relationship and rarely can parties agree on these issues. This can lead to protracted litigation which is absolutely not in the children’s best interests, yet parties do it every day, sometimes for years on end.
In summation, the only way to reach a predictable timesharing schedule is to agree to one in mediation where you have full control over where your child will live.