Albuquerque Divorce Lawyer Blog

When parents get divorced, or break up, and a child custody dispute ensues over their child, there may be people in the child's life, such as grandparents, aunts, uncles or stepparents who want to protect their relationship with the child.

In New Mexico, these extended family members do not have rights to custody, however, they may be able to establish visitation. In Rhinehart v. Nowlin, the New Mexico Court of Appeals upheld the district court's decision awarding visitation to a stepmother when she and the father of her stepchildren got divorced.

In the Rhinehart opinion, the Court reiterated that the New Mexico district courts have exclusive jurisdiction over all matters related to the guardianship, custody, care and maintenance of children. Given that exclusive jurisdiction, the district court may grant visitation to a person other than the parent of a child, if the court determines that such visitation is in the best interests of the child.

While the Rhinehart ruling does not grant extended family members an absolute right to visitation, it does provide a means for them to pursue an order allowing them to maintain contact with the child in their life. That family member will have to show that maintaining that relationship is in the child's best interest and not every relationship will meet the court's standards. In fact, it is often an uphill battle.

However, when an important and close relationship exists between the extended family member and the child, and maintaining that relationship is important to the child, it may be a battle worth pursuing. Consultation with a family law attorney can help family members determine whether or not they have a basis to pursue visitation and what procedural requirements they must follow to do so.

Collins & Collins, P.C.
Albuquerque Attorneys

Many New Mexico families have daily ties to more than just the parents and children. Grandparents, aunts, uncles and cousins may be an integral part of a family structure and they can provide everything from simple babysitting to emotional and financial support.

Therefore, when parents divorce or become engaged in a child custody dispute, it can affect more than just the parents and their children and may extend to the relationships of between the children and the extended family.

As a result of these close ties, an extended family member may feel that they have a right to be involved in child custody decisions. They may even feel that they should have significant input into how the children are reared. However, the law grants few rights to extended family. This includes the grandparents.

The law in New Mexico only grants absolute custody and time-sharing rights to parents. On rare occasions, grandparents may have the right to petition the court for visitation. Though not child custody per se, in cases where the child has lived with an extended family member for at least ninety days, the extended family member may be allowed to seek guardianship over the child. In those cases where the Children Youth and Families Department becomes involved in child custody, they may allow an extended family member to act as a guardian.

However, these situations are the exception, not the rule, Any extended family member concerned about a child who is involved in a custody dispute should consult a New Mexico family law attorney in order to determine whether they have any rights to custody.

Even if the law does not provide a direct avenue for custody, the parties may be able to negotiate an agreement for visitation that can protect the extended family member's relationship with the child and an experienced family law attorney can help to facilitate such an agreement.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, most parents faced with a child custody dispute, whether it is part of a divorce or a paternity action, will eventually have to deal with establishing a parenting plan that establishes how the parties will share custody and sets forth child support.

The New Mexico statutes create a presumption that the parents will share joint legal and physical custody of their children. Physical custody refers to how and when each parent spends time with their children and is often referred to as time-sharing or visitation.

Many families will wind up with a time-sharing agreement wherein the child goes back and forth between each parent's home. However, in some situations the parties may agree to, or the court may order, that the child's visitation with one or both parents be supervised. Such supervision can sometimes be provided by a family member or friend that is approved by the court or the parties. If no such person is available, a church or other community group may be able to provide supervision. Some New Mexico cities, especially Albuquerque, Rio Rancho and Santa Fe, also have companies that provide supervision for a nominal fee. In some cases, these companies provide a location where the actual visitation takes place and others provide a staff member that will accompany the parent and child on an outing. Most of these companies will also provide both parents with a report or notes of what occurred during the supervised visit.

A parent faced with a supervised visitation order will often object and feel hurt or offended that their time with their child is not fully their own. However, supervised visitation can be an asset to both parents. It can alleviate the fears of a parent who has concerns about the other parent's behavior. In turn, the supervised parent now has a witness to their interaction with their child, who can help support a future claim for unsupervised visitation. There are pros and cons to any parenting plan and consulting with a New Mexico family law attorney can help both parents ensure that a proposed visitation arrangement is the best option available to them under the law.

Collins & Collins, P.C.
Albuquerque Attorneys

One decision to be made during any divorce involving children, particularly in cases of disputed child custody, is which parent is entitled to claim the tax exemption for the children.

Many New Mexico courts will follow the basic Internal Revenue Service ("IRS") rule that, absent an agreement between the parties, the custodial parent, or the parent with whom the child lives most of the time, will be allowed to claim the exemption for that child.

However, in the 1998 case of Macias v. Macias, the New Mexico Court of Appeals ruled that Federal tax laws do not preempt the authority of the New Mexico district courts, which have jurisdiction over family law matters in the State, to allocate the tax exemption for a dependent child. In others words, the New Mexico district courts are not required to follow the IRS rule regarding the tax exemption for the child.

Instead, New Mexico courts may allocate those exemptions however they see fit so long as it is in the best interests of the child. The court in Macias noted that a dependent child tax exemption can be seen as another source of financial support for a child. As such, the court is free to allocate tax savings as a means of providing for a New Mexico child's support.

Given that claiming the dependent child tax exemption can result in substantial tax savings to the party claiming the exemption, it is important to make sure that any parenting plan or other order of child support properly addresses the tax exemption. Failure to do so could prove costly.

Collins & Collins, P.C.
Albuquerque Attorneys