Albuquerque Divorce Lawyer Blog

Under New Mexico law, a victim of domestic abuse can file a petition for order of protection asking the civil court to issue a restraining order (called the Order of Protection from Domestic Abuse) preventing the restrained party from contact with the abused party. The order of protection is an important mechanism available to protect victims of abuse. Unfortunately, as pointed out in recent columns in the Albuquerque Journal, the order of protection is often misused.

For instance, as part of a divorce proceeding, one party will often file a petition for order of protection even though no domestic abuse has occurred. The filing party may do this to prevent the other party from seeing their children or to force the other party from the marital residence. Or the filing party may just file the petition to cause the other party trouble because they then have to hire an attorney and miss work to appear at the hearing on the order of protection. Worse yet, the tactic can be used to literally ruin the other party.

The improper use of the order of protection can cost parties more than just time and money. A temporary order of protection is entered as a result of most petitions and although the temporary order does not make a finding of domestic violence, it is still part of the public record and may hinder the restrained party's ability to find employment or pass a background check. A finding of domestic violence has consequences far beyond the order of protection itself.

This misuse of the legal system is not only hard on the parties involved, but it puts the hearing officers and judges that review petitions for order of protection in a very difficult position. If the hearing officer issues a petition against a party that has not really committed domestic violence, then the restrained party can suffer serious and unfair consequences. On the other hand, if the hearing officer does not issue an order of protection and there really is domestic violence, then the life of the abused party could be in danger.

Given the frequent abuse of domestic violence proceedings, it is very important that parties on both sides consult an attorney prior to filing or immediately after being served with an order of protection. An innocent party's failure to do so may result in the entry of a bogus order of protection. A dishonest person filing a domestic violence action for wrongful purposes if found out by the court, can be facing numerous penalties including loss of child custody and time-sharing and findings of contempt with fines and awards of attorney fees. It is very dangerous game and should be treated as such by all.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Sadly, there are often times when neither of a child's parents is able to care for the child. In such cases, a third-party, who may or may not be a family member, may petition the Court for child custody of the Child. In New Mexico, there are five different ways in which a third-party child custody may be awarded.

The first three ways by which a third-party may gain child custody over a child are pretty straightforward. First, the court may grant child custody to a third-party as part of a divorce proceeding if the court determines that neither parent is capable of caring for the child and the third-party properly intervenes in that divorce proceeding. Second, under the probate code, the court may grant custody to a third-party when the child's parent or guardian dies. Third, the court may grant custody to a third-party as the result of finding of abuse and neglect by the child's parents or current guardian. Abuse and neglect proceedings are generally initiated by the Department of Children Youth and Families, but they can be initiated by the third-party seeking custody.

Fourth, the third-party seeking custody can file a petition under the Kinship Guardianship Act, which typically applies when a child has lived with the third-party for more than ninety (90) days prior to the filing of a petition. However, custody can also be granted under the Kinship Guardianship Act even if the child hasn't lived with the third-party for ninety (90) days, if the child's parents are unwilling or unable to care for the child and there are extraordinary circumstances. In fact, a third-party can be granted custody of a child is when extraordinary circumstances exist, even without a Kinship Guardianship petition, and there is no other remedy available under the law, which is the fifth way for a third-party to obtain custody.

In all of the situations referenced above, the court will only grant custody to a third-party if that custody award is in the child's best interest. The person seeking custody will often have the burden of proving to the court that they are the best person to care for a child, which can be a very complicated process. Thus, it is very important for a person seeking custody to consult an attorney before undertaking such an action.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Given the current state of the economy, many people in New Mexico and here in Albuquerque are considering or are in the process of filing for bankruptcy. These folks often have child support obligations. In fact, the child support obligations, and child support arrearages, themselves may add to the pressure to file bankruptcy. Some may erroneously believe that back child support is dischargeable in bankruptcy. It is not!

An individual filing bankruptcy is called the debtor and the bankruptcy petition lists all of the debts for which the debtor is responsible and asks the court to discharge their debts, which means that creditors can no longer try to collect those debts, or organize a repayment plan for the debts.

Again, not all debts are dischargeable in bankruptcy. This means that these debts are unaffected by bankruptcy. Section 523(a) of the bankruptcy codes provides a list of the types of debts that are non-dischargeable, which includes both child support and alimony/spousal.

The bankruptcy code takes the responsibility to support a family very seriously, which is why child support and spousal support are non-dischargeable. Part of the reason behind this heightened protection that children and former spouses are often in a very vulnerable financial position following a divorce. They are not like other creditors, i.e. credit card companies, that assume a certain amount of risk when they lend money. Further, children and ex-spouses often relied on that support for their very survival and without that support the government may have to step in and carry that burden through programs like TANF, food stamps and Medicaid.

Prior to moving forward with bankruptcy, it is critical to consult a New Mexico attorney particularly if the objective is to circumvent child support. In fact, if you are faced with this situation, you would be well advised to consult with both a New Mexico divorce and family law attorney as well as a bankruptcy attorney. Doing otherwise will surely result in disappointment with the results.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

A parent's decision to relocate can obviously have a significant and lasting impact on parents' custody and time-sharing agreement. Even if the parents initially agree on a parenting plan that accommodates the parent's decision to relocate, problems may arise if the parties disagree later.

The first question that arises is what Court will handle the case? This can be a complicated question of jurisdiction and venue. If the parent relocates within New Mexico, this becomes a question of venue, or which court of general jurisdiction within New Mexico is the proper location for the filing of a subsequent motion and response regarding child custody. The answer can be found in the case of Dugie v. Cameron.

In Dugie, the parties were initially divorced in the Second Judicial District Court in Albuquerque. Later, one parent and the children moved to Grant County, which is governed by the Sixth Judicial District Court. Several years later, the parties had a disagreement about custody and time-sharing. The parent living in Grant County then filed a motion to modify time-sharing in Grant County. The other parent objected and argued that jurisdiction and venue over child custody issues remained with the Second Judicial District Court in Albuquerque. The New Mexico Supreme Court ruled that the Court that issues the initial child custody decision maintains jurisdiction over child custody matters and remains the proper venue for hearing all subsequent custody modifications.

On the other hand, parents can agree to a change of venue. In addition, if one parent does not object to the other parent filing in a different count, that parent might inadvertently waive his or her objection to the change of venue. Failure to oppose the change of venue in a written Response to a Motion filed in the new county can result in a waiver of the objection and a resultant change of venue to the new county.

Thus it is very important for both parents to consult an New Mexico divorce attorney before they relocate. It is equally important to consult with an attorney before filing any response to a motion or petition filed in a county other than the county of original jurisdiction to avoid possible waiver of the objections.

www.CollinsAttorneys.com

When the parents cannot agree on a child custody time-sharing arrangement between themselves, there are court resources available to help assist them in establishing a parenting plan. For contested child custody cases in Albuquerque, the parties will generally be referred to Second Judicial District Court Family Court Clinic. The courts in Santa Fe, Rio Rancho, and many other judicial districts across New Mexico have similar court-sponsored family court programs that are the first step in determination of a parenting plan.

Upon referral to Court Clinic or other family court services, the parties still have control over their case. The first step in the process is non-binding mediation. Child custody and time-sharing mediation brings the parties together with a professional mediator with the goal of reaching an agreement acceptable to both parties. It is a non-binding process meaning that the parties do not have to reach an agreement. They can choose to move forward with the Court Clinic process.

When mediation doesn't lead to an agreement, the Court may then order a full child custody evaluation through Court Clinic. A custody evaluation through Court Clinic involves trained mental health and custody professionals who meet with the parents, the child and any other important people in the child's life including teachers, doctors, counselors, coaches and others to assist with the custody evaluation.

The information gathered from interviews, psychological testing and any other available sources will be used to produce a list of Court Clinic recommendations for custody. The objective is to provide for the best interests of the child/children. The great majority of the time, the Court will adopt the recommendations of Court Clinic. However, either party may dispute the recommendations, which then requires that party to hire a private custody expert, referred to as a 706 Expert. This then raises a whole new set of issues.

www.CollinsAttorneys.com

Relocation of one of the parents often has significant consequences for child custody and timesharing. In fact, it may result in a loss of time-sharing so it is not always an option. This is particularly so where there is an existing Parenting Plan that prohibits such a move as most parenting plans do.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion for a modification of their parenting plan and timesharing agreement as soon as they know they will be moving.

If the parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing no matter what the reason for the move.

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. As with all cases of contested custody and timesharing, if the change in the parenting plan is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult a New Mexico divorce and family law attorney if they are faced with such a potential change to custody and timesharing.

www.CollinsAttorneys.com

One of the final steps in completing a divorce is the entry of the Marital Settlement Agreement. The Marital Settlement Agreement provides the formal division of the parties' property, assets and debt. It also addresses alimony, spousal support, taxes, and other financial issues affecting the parties.

In New Mexico, the Marital Settlement Agreement must be signed by both parties. The Marital Settlement Agreement is typically adopted as an Order of the Court through the Final Decree of Divorce. Problems often arise as a result of one or both parties' refusal to abide by the terms of the Marital Settlement Agreement.

In cases where the divorce was granted and the Final Decree of Divorce was filed in the New Mexico Courts, either party may file a Motion to Enforce the Marital Settlement Agreement in the court where the divorce was granted. The District Courts in Albuquerque, Rio Rancho, Santa Fe and several of the other courts throughout New Mexico have a self-help divisions that will provide forms for this process in case the parties cannot afford legal counsel. The forms are also available online.

Problems often arise out of property and debt divisions from other States. Many New Mexico residents are faced with the breach of an out-of-state Marital Settlement Agreement. Unfortunately, enforcement of another state's orders can be complicated. An out-of-state Order addressing the division of property, assets and debt must typically be addressed in the court with original jurisdiction over those issues. Unlike many cases where a civil judgment may be domesticated in New Mexico for enforcement purposes, domestication of a family law Order is often not an option in family law.

The general rule is that the state court that grants your divorce maintains jurisdiction over the enforcement of any orders and decrees associated with the divorce. There are as always some exceptions. There is an exception for child support where the state in which the child resides may enforce child support obligations. Likewise, child custody jurisdiction may vest in another jurisdiction after the child has resided in the new state for 6 months. With those exceptions, the original court maintains jurisdiction over most matters related to the divorce such as the division of property and debt, spousal support and alimony.

In case of problems with enforcement, it will typically be required that a proceeding in the state of original jurisdiction be initiated. In that instance, it would be important that the obligations under the Marital Settlement Agreement be found by the Court to be a judgment. Once this is done, and the amount is fixed, the judgment may then typically be domesticated in New Mexico for future enforcement.

These issues can become very complicated very quickly. It is important to determine the proper way to proceed prior to seeking court relief. False steps could become extremely costly if the Court refuses to hear the claims due to lack of jurisdiction. It would be wise to seek the advice of a New Mexico divorce attorney when faced with this situation.

www.CollinsAttorneys.com

Being served with divorce papers is extremely stressful and emotional. Often times, the person served has no idea what to do once served. Though the divorce process can be confusing, the initial steps are pretty straight-forward.

The first legal step in a divorce action in New Mexico is the filing of a Petition for Dissolution of Marriage, which must be personally served to the opposing party. Once you have been served with the Petition, you have 30 days to file your response, which is called an Answer. At the Second Judicial District Court in Albuquerque, all responsive pleadings, including the Answer, must be filed with the clerk on the first floor of the Bernalillo County Courthouse. Likewise in the Thirteenth Judicial District in Rio Rancho, the Answer must be filed on the first floor with Sandoval County District Court Clerk.

If you are served with a Petition, it is a good idea to meet with a lawyer as soon as possible in order to discuss your rights and responsibilities during the divorce process. Even if you are unable to meet with a lawyer, it is imperative that you file an Answer to the Petition. If you don't, you run the risk that a default judgment will be entered against you. A default judgment means that the Court grants the divorce, including dividing property and debt and deciding child custody and child support, without your input.

The Petition itself is a pretty basic document that simply notifies the Court that the parties are incompatible and that at least the filing party wants a divorce. It will include information about when the parties were married, whether or not they have any children, whether or not one party is entitled to spousal support or alimony and will ask the Court to divide all community and separate property and debt.

Thus, your Answer can be pretty simple too. The Answer should include a line responding to every line in the Petition that states whether or not you agree with each and every statement in the Petition. The Answer does not need to include the details of why you agree or disagree or details about what you want in terms of property or custody. The final details of the divorce will be spelled out in the Marital Settlement Agreement and the Parenting Plan, both of which are filed later on. Keep in mind that your Answer is binding and may be used against you later. As such, you need to be very careful about what you admit or deny.

On the other hand, it is far better to leave details out of the Answer. The details are addressed later through litigation, discovery, mediation, settlement and so. These details are then set forth either by the parties through the Marital Settlement Agreement or Parenting Plan if they are able to work together, or the court if they are not. Even if you have to file the Answer without an attorney, you should definitely discuss the details of the Marital Settlement Agreement and Parenting Plan with a New Mexico divorce lawyer because these documents will affect your rights long into the future.

www.CollinsAttorneys.com

What if a Petition for an Order of Protection from domestic violence is filed against you, but you are actually the victim, rather than the perpetrator of the abuse? In New Mexico, you are allowed to file a Counter-Petition for Order of Protection from Domestic Abuse in which you can respond to the allegations in the original Petition while also asking the Court to enter an Order of Protection against the other party. In Albuquerque, the Counter-Petition can be filed at the Domestic Violence Office on the Second Floor of the Second Judicial District Courthouse.

The Counter-Petition must include all of the elements required of the original Petition for Order of Protection Against Domestic Abuse including a clear, detailed statement of the nature of the abuse and when and how it occurred. Remember that the definition of domestic abuse under Family Violence Protection Act is very broad. It includes incidents against a household resulting in: actual, physical harm, severe emotional distress, a threat that causes you to fear bodily injury and a variety of other situations. Also, remember that the definition of Household Member is very broad and can include a spouse, former spouse, any other family member (including present or former-stepparents or in-laws) and any other person with whom you have had an ongoing, personal relationship.

There should not be any cost for filing the Counter-Petition and the local sheriff is required to serve the Counter-Petition for free. If you are served with a Petition for Order of Protection and believe that you have grounds for a Counter-Petition it is imperative that you act quickly because hearings on the Petitions are typically held within a few weeks, if not days, of the issuance of the Petition. You will need to have the other party personally served with the Counter-Petition prior to that hearing so that the hearing officer or judge evaluating your case can hear both petitions. It is best to consult an attorney in any domestic violence situation, but at the very least you should got the courthouse where the original petition was filed to get more information about filing a Counter-Petition.

www.CollinsAttorneys.com