Albuquerque Divorce Lawyer Blog

Establishing paternity has several important legal consequences. However, before paternity can be legally established, a party alleging paternity must have reliable evidence to present to the court.

In the past, paternity could be difficult to determine and courts were often forced to rely on testimony or other anecdotal evidence in order to do so. However, recent advances in technology have made DNA paternity testing readily available and relatively inexpensive. DNA testing provides incredibly accurate results to private parties and the courts.

There are several types of DNA paternity tests that can be performed both before and after the child is born. There are three main tests that can be performed prenatally: Amniocentesis, Chronic Villus Sampling (CVS), and SNP Microarray. An amniocentesis can be performed in the second trimester of a woman's pregnancy. An SNP can be performed as early as the 9th week of pregnancy and CVS can be performed as early as the 10th week. After the child is born, there are several postnatal DNA paternity tests that can be performed. These include blood samples, buccal (cheek) swabs, and umbilical cord tests.

Today, paternity testing can be necessary to address a variety of legal issues, such as: child support, adoption, inheritance, social security/insurance/military benefits, immigration issues among others. However, to be legally admissible, the paternity test must follow a strict chain of custody rules in order to ensure the reliability of the results as evidence.

In New Mexico, the Uniform Parentage Act (UPA) establishes chain of custody and other rules regarding genetic testing to establish paternity. To establish chain of custody under the UPA, the specimens must be taken by a neutral, accredited facility. The facility must comply with accreditation requirements of the UPA. A representative of the laboratory must sign the genetic testing report under penalty of perjury. The report must include: (1) names and photographs of the person(s) the specimens were taken from, (2) name of the person collecting the specimen, (3) location and date of collection, (4) names of persons receiving specimens in the testing lab, (5) date specimen was received, and (6) laboratory accreditation documents.

Under the UPA, a man is identified as the father of a child if the results of the DNA test show that the probability of paternity is at least 99% or shows a combined paternity index of at least 100 to 1. The only way to rebut the genetic testing results is by providing other genetic tests that either (1) exclude the man identified as the father of the child or (2) identify another man as the child's possible father. If tests identify more than one man as the child's possible father, the court will order further genetic testing.

Results of DNA paternity tests are strictly confidential. According to the UPA, paternity test results should only be shared with the person tested, their attorney, the court, and the support enforcement agency involved. Under New Mexico law, releasing paternity results to anyone other than the persons listed above is a fourth degree penalty.

There are many home DNA testing kits available on the Internet today. Although these tests may be helpful in clearing up doubts regarding a child's paternity, it is important to understand that the results of a home DNA kit are not admissible as evidence in court. As discussed earlier, to be admissible as evidence, paternity testing procedures must adhere to strict chain of custody rules that are simply impossible to achieve with a home test.

Paternity has many consequences, some welcome and some not so much. A finding of paternity means that the father is now responsible for child support until the child is 18 or graduates high school. This can obviously be a great financial burden. The emotional burden may be equal in weight. If faced with a situation disputed paternity, it is important to know your rights. It is equally important to assert those rights which may require the assistance of an experienced New Mexico family law attorney.

Related Reading:
Unmarried Fathers: Paternity, Child Custody and Time-Sharing
Retroactive Child Support in New Mexico Paternity Actions

Collins & Collins, P.C.
Albuquerque Attorneys

The fact that nearly 50% of marriages in the U.S. end in divorce is well known. However, the divorce rate among members of the armed forces is slightly higher and continues to increase. As military divorces rise, so do the number of child custody cases, bringing issues particular to military service to the fore.

In the past few decades a large number of military servicemembers have returned from deployment to find that their child custody order has been modified based solely on past and future deployments. Members of the military who have been fighting abroad return to fight another battle at home over custody, finding themselves stuck between their love for their children and their commitment to their country.

The standard for awarding custody in New Mexico and around the U.S. is based on the best interests of the child. A judge makes a determination of what is in the child's best interest based on a variety of factors including the wishes of the parents, the relationship that the child has with each parent, and the ability of each parent to provide a stable home and family environment.

Military service unavoidably entails the possibility of being deployed to any part of the world for an extended period of time. Giving a military parent primary custody could arguably be against a child's best interests if deployment would cause instability and disrupt the child's routine. Many non-military parents have successfully used this argument to obtain a modification of child custody orders based on the past and future deployment of a military parent.

However, it is patently unfair that a soldier has to choose between serving their country and having custody of their children. It can certainly be argued that military service is not just a job, and that while servicemembers are risking their lives abroad they should not be penalized at home.

In response to the special circumstances presented by active service and deployment, the federal Servicemember Civil Relief Act suspends or postpones certain civil obligations while an individual is on active duty. Recognizing the special issues concerning child custody, a 2008 amendment to the Servicemember Civil Relief Act prohibits family courts from making permanent changes to a custody order while a servicemember is deployed.

However, the amendment did not go far enough, as family courts around the country continue to consider past and future deployment in child custody determinations once the deployed parent returns home. Because a servicemember can be deployed at any time in the future, many judges have found that this disqualifies that parent an award of primary custody of their child.

Since 2008 the House Armed Services Committee has been trying to gain Congress' approval for the Servicemember Family Protection Act, which would prohibit family court judges from considering deployment in child custody considerations. It would also expand the definition of deployment to incorporate unaccompanied tours overseas and humanitarian missions.

Supporters of the Act argue that it would not give servicemembers an advantage over non-military parents; it would just remove a disadvantage. On the other hand, opponents argue that past and future deployments should be considered in custody determinations because a parent's extended absence may have serious effects on a child's well being and stability.

The Servicemember Family Protection Act has passed in the House and is currently awaiting Senate approval. Your legislator might like or need to hear from you on this issue.

On April 26, 2012 the U.S. Senate voted 68-31 to reauthorize the Violence Against Women Act (VAWA) for an additional 5 years, despite efforts by opponents to pass a more narrow version of the Act. The Senate version contains more funding for education and other services, as well as recognizes the special needs of Native Americans, immigrants, and the Lesbian Gay Bisexual and Transgendered (LGBT) community.

VAWA was first signed into law in 1994 and has been reauthorized twice before; in 2000 and again in 2005. In what women's advocates call a landmark piece of legislation, VAWA is aimed at improving the response of the community, police, and justice system to several forms of violence against women including domestic violence/domestic abuse rape, dating violence, and stalking.

VAWA created the Department of Justice's Office on Violence Against Women and provides federal funding for investigation and prosecution of violent crimes against women. It also imposes mandatory and automatic restitution on defendants who are convicted of violence against women. Additionally, VAWA provides a civil remedy when a district attorney does not prosecute a crime of violence against a woman,

The latest version of VAWA contains a number of provisions that have met staunch opposition. These provisions expand protection to Native American women, immigrants, and members of the LGBT community. For example, a new provision in VAWA gives tribal courts jurisdiction over non-Indian domestic violence defendants if the alleged crime occurred on reservation land. This provision is especially significant in states like New Mexico with a high Native American population. According to a report by the U.S. Department of Justice, American Indians and Crime, violent crime against Native American women occurs at a rate 3 ½ times greater than the national average. Opponents of the VAWA provision argue that in many cases, prosecuting non-Indians in tribal courts would deny defendants due process and would therefore be unconstitutional.

Another point of contention is a provision that would increase the number of temporary U.S. visas for illegal immigrants who are victims of domestic violence. The new provision would expand the number of temporary visas available by allowing the unused visas from previous years to be added to the annual 10,000 U visas currently available to victims of domestic violence, rape, and sex trafficking. Opponents of the new provision argue that this would effectively grant a form of amnesty to illegal immigrants. Proponents argue that the visas are indispensable in helping victims whose abusers may be using the threat of deportation to control and exploit them.

Further, a provision that would expand VAWA's protection to gay, transgender, and bisexual victims of domestic violence has met with stiff opposition. Although VAWA currently prohibits discrimination on any basis, including sexual orientation, many proponents of the new provision want to make it clear that members of the LBGT community are covered under VAWA.

Other less controversial new provisions will keep federal funding at the current level but allocate more funds toward domestic violence education on college campuses. The Senate bill also lengthens the time that a victim can stay in temporary housing and improves the legal protection available to victims of stalking. The Senate bill also reserves 20% of funds for forensic response and police training.

Whether or not the new version of VAWA is enacted, the recent debate highlights the serious issues facing women in the United States and what the law can do to address them. In the meantime, there is help available for victims of domestic violence.

A divorce does not affect an individual's credit and credit score directly. However, shared or joint credit obligations often do. Joint credit obligations include bank loans, credit cards, finance and auto loans, mortgages, home equity lines of credit, and credit cards. Fortunately, there are several things that a person can do before, during, and after divorce to ensure that their credit and credit score is not negatively affected by divorce.

During marriage, many couples merge their finances, get a mortgage, open a joint bank account, buy a car together, etc. Under New Mexico law, all assets and debts accumulated during the marriage are considered to be community property. In the event of divorce, all assets and debts considered to be community property are divided equally between spouses.

However, many divorcing individuals fail to realize that a divorce decree assigns marital property and debt, but does not alter or break contracts with a lender. For example, if one partner is assigned a specific debt and subsequently cannot afford payments and the lender has not changed the contract, late payments will appear on both individuals' credit reports. In other words, regardless of the divorce decree, an individual is still responsible for joint credit obligations unless certain steps are taken.

• Close joint bank accounts. Joint bank accounts should be closed before the divorce is finalized. Since joint bank accounts are considered community property, spouses should close or cancel the account together and the funds should be divided equally.
• Close or remove one person from credit accounts. If there is no balance due on a joint credit account, the account should be closed prior to divorce. If there is a balance due on the account, it is not likely that the creditor will close the account without payment. However, certain credit companies will be willing to close a joint account and open two separate individual accounts and divide the balance due.
• Settle with creditors. Other creditors may be willing to close the account and settle for a lesser amount than what is due. In this case, individuals should obtain a letter from the creditor stating that the debt has been paid in full.
• Freeze accounts if they cannot be cancelled. If joint accounts cannot be closed, cancelled, or settled, it is important to put a freeze on the account to prevent any further charges from either party.
• Change names on utility bills. It is important for the person keeping the marital home to remove the other party's name from utility bills.
• Keep current on bills. Even though a divorce decree may assign a particular debt to one individual, if the debt is a joint one, the other party's credit score will be affected if the party responsible does not make timely minimum payments. In this case, it is often advisable to make the minimum payments even if the debt was assigned to the other spouse instead of risking damage to your credit score.
• Establish your own credit. Many spouses, for several reasons, do not have a credit card in their name. It is important to be aware that being an authorized user on another person's credit account does not build personal credit. When faced with divorce, some individuals find that they have not established sufficient credit to accomplish even the simplest tasks like obtaining a telephone line or renting a home.

These issues should all be considered early and throughout the divorce process. An experienced divorce attorney can help to avoid or at least minimize the potential negative consequences to your credit related to your divorce.

DISCLAIMER


Related Reading:



• Is Your Soon-to-be Ex Hiding Assets?


• 5 Tips From a Divorce Attorney For (Happily) Married People


• Financial Recovery After Divorce: There is a Light at the End of the Tunnel




Collins & Collins, P.C.
Albuquerque Attorneys

Many divorced parents have questions about traveling out of the state with their children either on a short trip or a permanent relocation. Depending on the child custody arrangement, parenting plan in place, and length/ nature of the trip, the parent may need to get permission either from the other parent or the court before taking a child out of New Mexico.

There are many reasons for taking a child out of state including vacations, holidays, and visits to extended family. Other reasons may be different in nature, like a permanent move resulting from a job offer or wanting to be closer to family in another state. In other situations, parents take their children out of state to deprive the other parent of contact with a child.

In New Mexico, parenting plans will usually discuss a vacation and holiday schedule that specifies which parent the children will be with during these times. If the parenting plan specifies that the children will travel out of state for vacation or holiday, then the parent does not need further permission unless the trip will be longer that specified in the parenting plan. Although most plans will require the travelling parent to provide an itinerary of travel dates, times and locations to the other parent and provide a way for the other parent to contact the children while they are travelling.

If a parent wants to take a child out of state because of a change in residence, the parent cannot make this decision unilaterally unless he or she has sole legal custody. Even then, the parent who wishes to relocate may need the court's permission if the proposes relocation will interfere with, or eliminate, the other parent's visitation with the child. Given New Mexico's preference for joint legal custody, most New Mexico parenting plans clearly state that the children will reside in New Mexico and cannot be moved out of state without approval from the other parent or a court order.

A parenting plan should include provisions to be followed when one parent wants to relocate. A typical example of such a provision is when parents live less than 60 miles apart, notice of any planned relocation out of state or more than 100 miles from the other parent must be sent to the other parent at least 60 days in advance of moving. If parents cannot agree on the move, they must submit to mediation and draft a new parenting plan that must be approved by the court. If the parents cannot agree in mediation, then the parent wishing to relocate will need to file a motion with the court asking for permission to move out-of-state with the child.

Taking a child out of state without informing the other parent or in violation of a court order or temporary domestic order is considered custodial interference and is considered a serious offense in New Mexico. Parents that are found guilty of custodial interference face possible findings of contempt, fines, jail time, and awards of attorney fees and costs. Beyond family court sanctions, custodial interference is a felony that falls under New Mexico criminal kidnapping statutes. Parents found guilty of custodial interference face serious criminal penalties including up to 18 months in prison for each count.

For the above reasons, it is very important to be familiar with your parenting plan and New Mexico laws when contemplating taking your child out of state. It is always advisable to keep the other parent informed of any out of state trip. If in doubt, contact an experienced family law attorney in advance of any relocation of the child.

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