The standard for determining custody and time sharing in NM is based on a determination of what is in the best interests of a child. There is, however, no clear cut definition of custody. Often times it is just determined by no more than what seems like a flip of the coin. Of course, no judge will admit this, but instead state that it’s based on the totality of the circumstances. Then it becomes somewhat of a checklist as to determine where the child resides. However, what if there is a better approach to custody?
Think about this approach: recently the U.S. Supreme Court recognized same sex marriage. In that decision, as well as other case law and statutes, marriage can be viewed, in one respect, as a contract. A contract between the parents. The child becomes a third party beneficiary of the contract. Thus, what if we defined the best interests of the child by determining the damages of the child arising from the dissolution of the contract by the parents.
What sort of damages/outcome should the child have in order to put the child in the position he/she would’ve been in had the contract not been terminated. Then, we can calculate damages arising from lost opportunities, loss of enjoyment of life, etc. How does the child get compensated? By calculating the economic contributions made by parents. Thus, to maximize the economic benefit to the child determine how much each parent should “pay” to the child in the form of housing, food, clothing, etc. Then make the custody decision based on the economic benefit to the child. Does this sort of child centered approach make sense? We’d love to hear your input.