Albuquerque Divorce Lawyer Blog

The Child Support Recovery Act (CSRA), often referred to as the "deadbeat-dad" (deadbeat parent) law, makes it a federal crime to flee a state in order to avoid having to pay a child support arrearage. The CSRA does not apply to every child support case. Rather, the CSRA is only invoked when a parent has willfully failed to pay child support resulting in an unpaid child support balance that exceeds five thousand dollars ($5,000.00) or that has not been paid in more than one (1) year.

When a case is being considered for referral to the U.S. Department of Justice, it must be evaluated to ensure that it meets all of the required elements of the CSRA. First, the non-custodial parent (NCP), or the parent who owes child support, must have the ability to pay. This does not mean that the NCP must be able to pay the entire arrearage. If the NCP can pay any amount towards the support obligation, their failure to do so is usually sufficient to meet the ability to pay requirement.

Second, the NCP must have willfully failed to pay his or her child support obligation. This means that he or she knew of the child support obligation and intentionally failed to pay. In order to show that the NCP knew of the support obligation, he or she must have been properly served the order for support. There should also be documentation available in the form of letters, notices, telephone calls and even contempt proceedings to demonstrate that the NCP does not intend to pay the obligation.

Third, the past due child support obligation must be greater than five thousand dollars ($5,000.00), or must have remained unpaid for more than one (1) year, and the NCP must reside in a different state than the child.

In addition to ensuring that the case meets the requirements of the CSRA, there are other factors that need to be considered before a case is referred for federal prosecution. These factors include the following:

1. Are there any non-federal criminal or civil remedies available that provide an adequate means to collect the child support owed?


2. Is there sufficient evidence available in order to obtain a conviction?


3. Does the NCP have the ability to pay toward the child support obligation?


4. Is there a pattern of repeated flight from state to state to avoid either the payment of child support or service of the child support order?


5. Is there a pattern of deception to avoid payment? This would include concealing assets or frequently changing employment.


6. Is there a failure to pay the arrearage even after a finding of contempt of court?

If, after evaluation, a case is referred for federal prosecution and the NCP is found guilty, then the penalties can be serious. For a first time offender, the failure to pay a child support obligation is a misdemeanor punishable by up to six (6) months in prison. Subsequent violations may include a sentence of up to two (2) years in prison. The CSRA also requires an order of restitution for the amount of child support owed at the time the NCP is sentenced and all orders for probation must require that the NCP comply with any current child support obligations.

Both federal and state governments take the obligation to pay child support very seriously. Any parent involved in a child support dispute should consult a family law attorney to explain their rights and duties under all of the applicable child support laws.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
Ability to Pay in Child Support Contempt Hearings
Loss of Income and New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Family Violence Protection Act ("the Act") gives courts wide discretion in providing relief for victims of domestic violence in the form of a civil order of protection. Beyond provisions to ensure the physical safety of domestic abuse victims, the Act also allows courts to provide for the economic needs of domestic violence victims and their dependents.

An order of protection is a form of restraining order that directs the abuser (who is called the restrained party) to refrain from further abuse of, or contact with, the victim (who is called the protected party). Depending on the circumstances, the order of protection may also prevent the restrained party from having any contact with other members of the protected party's household, including their children.

Section 40-13-5(A) (3) of the Act allows a court to order a restrained party not to initiate any form of contact with the protected party, which includes face-to-face, telephonic, mail, email or Facebook contact, as well as attempt to reach the protected party through a third person. Any such contact constitutes a violation of the order of protection, which is a crime. The only way contact will be allowed is if the protected party dismisses the order of protection or order of protection expires and is not renewed.

The order of protection also prevents the restrained party from possessing a firearm pursuant to 18 USC § 922(g)(8) and may order the retrained party to get mental health treatment to address their abusive behavior, or substance abuse treatment if the court feels that drug or alcohol use was a factor in the abuse.

If the parties share a household, then the order of protection may include provisions to allow the restrained party to retrieve property from the shared residence with supervision by law enforcement. An order to vacate will often order the defendant to surrender keys and authorize the protected party to change the locks in order to prevent the restrained party from re-entering the home or damaging any property within the home. The court may also order the restrained party not to do anything else to interfere with the protected party's residence in the home like shutting off the utilities or discontinuing mail service.

If the parties have children together, section 40-13-5(A) (2) of the Act allows the court to award either party temporary custody of children and to provide for visitation and child support. The main consideration when awarding child custody, time-sharing, and child support will be the best interests of the children, which may include balancing the safety of the children and the protected party with protecting the parental relationship between the restrained party and their children.

It is important to remember that orders of protection not only bind the restrained party, but the protected party as well. For example, if a protected party seeks out contact with a restrained party, then those actions may result in the dismissal of the order of protection or the entry of a counter-order of protection against the protected party. The terms of the order of protection also bind law enforcement because it may require them to serve notice, arrest restrained parties for violations of the order, assist with orders to vacate, and implement standby procedures.

Depending on the facts of any domestic violence situation, an order of protection may have a very broad scope. It is important that both the restrained party and the protected party understand the terms of the order of protection, along with their rights and responsibilities. For this reason, it is always advisable for both parties to speak with an experienced family law attorney when dealing with an order of protection under the Family Violence Protection Act.

Related Reading:
A New Mexico Order Of Protection is Only Effective If Consistently Enforced
Violence Against Women Act Reauthorized By The U.S. Senate
Objections to Domestic Violence Order of Protection
Two Sides to Every Story: Mutual Orders of Protection in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Domestic violence cases generally involve more than just the abuser and the victim. The children that live in these violent homes are directly impacted by the abuse going on around them. Children are frequently witnesses to the violence or are used by the abuser to control the victim. In some cases the children themselves suffer physical injuries as a result of the violence that was intended for another victim or directed at the children themselves.

Studies have shown that up to 90% of children from violent households are aware that the abuse is going on in the house. Some children actually witness the abuse while others may hear the victim crying, household items breaking, or the actual impact of physical blows to the victim. Children are very perceptive and, even at a young age, will often notice the blood, bruising, torn clothes and broken furniture that exist after the violent episode is over. Children are also very aware of the tension that exists between the adults in a violent home.

Sadly, it is not uncommon for the abuser in a violent home to attempt to use the children to control their victim. Control methods include actions like interrogating the children about the victim's activities and taking the children away from the victim, or threatening to take the children, in order to prevent the victim from fleeing. Even when the victim does try to leave the abusive situation, the abuser may continue to use the child as a means of control by engaging in battles over custody, holding the children hostage, demanding access to the children, and contacting the victim at work or home under the pretext of arranging visitation with the children.

Any time there is violence in the home; children are at risk of suffering physical injury at the hands of the abuser. In New Mexico 22% of children that are witnesses to domestic violence are reported to have experienced physical abuse, and additional 7% are reported to have been sexually abused by the offender. Physical abuse to the child can happen in ways other than direct abuse by the batterer. Sometimes the children are injured when they try to protect the parent/victim. Others are injured by objects thrown at the victim by the abuser. In addition to bodily injury, children often suffer other physical consequences as a result of domestic violence. Domestic violence frequently deprives children of housing, medical care, and proper schooling.

The consequences of growing up in a violent home extend well beyond physical damage. Growing up in an abusive household can have a profound impact on a child's self esteem, how they perceive and deal with authority figures, and their ability to establish intimate relationships. Many of these children have lifelong problems forming healthy emotional bonds and some will have difficulty with even basic social skills.

Domestic violence is a serious issue that cannot be ignored. There are many resources available to protect the victim and the children of domestic abuse. Criminal and civil charges can be brought against the abuser and protective orders can be issued to stop the abuser from having contact with the victim. An experienced family law attorney can help answer your questions and help identify the resources available to victims of abuse and their children.

Related Reading:
Domestic Abusers May Seek Control through Child Custody
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Abuse of Domestic Violence Proceedings: Playing Dirty in Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

Clients often begin representation assuming that, when a couple is divorced, the husband will automatically pay the wife child support, and in some cases, alimony, which is in New Mexico is often called spousal support. The logic behind this belief is quite simple.

Historically, the husband was typically the "bread winner" or "provider" of the family and was routinely relied upon to provide the financial support for his family. This responsibility generally continued through divorce proceedings in the form of child support and alimony payments to the wife. However, as more and more women have entered the workforce during the past few decades, more and more wives have to pay child support and, at times, alimony after a divorce.

In New Mexico, child support is statutorily mandated and is based on the gross incomes of the parties, among other things. Therefore, the more income a woman makes, the more likely it becomes that she may have to pay child support to her former husband. In contrast, alimony is not mandatory in New Mexico, but rather is based on a set of factors which are set forth in the , including but not limited to, the length of the marriage and the age and ability of the parties. These Alimony Guidelines created in the Second Judicial District (Albuquerque) largely set forth the factors and calculation of alimony in New Mexico.

In some cases, alimony is awarded to pay for the cost of education or training for a spouse that has been out of the workforce during the marriage so that that spouse can become gainfully employed down the road. As an increasing number of husbands have stayed home to take care of children while wives worked, it has become more likely that a woman may have to pay alimony to help their former husband get back into the workforce. The award of alimony in these cases will also reflect the disparity of income between the parties.

A recent nationwide survey of divorce attorneys conducted by the American Academy of Matrimonial Lawyers found that the traditional notion of husbands always paying child support and alimony no longer holds true. More women are paying alimony and child support than ever before. In fact, fifty-six percent (56%) of the divorce attorneys that responded to the survey reported that they have seen an increase in the number of women paying child support, and forty-seven percent (47%) of the attorneys polled reported an increase in the number of women paying alimony to their former husbands.

And, the primary reason for this shift can be explained by the changing role of women in the workforce. Since 1980, the number of women obtaining professional degrees in law and medicine and holding high paying corporate positions has skyrocketed. These women are now earning more than their spouses and becoming the family breadwinners. During this same period of time, the number of marriages ending in divorce has remained relatively constant with about half of all marriages ending in divorce. Thus, the legal guidelines that determine who pays child support and alimony, and how much is paid, now often compel these highly educated and highly paid women to make the payments.

Obviously a divorcing spouse usually wants to minimize their financial obligations to their former spouse after a break-up. However, it is important to understand the changing dynamics of these issues and the way that custody and alimony payments may be decided in each individual case. An experienced divorce attorney can help explain these dynamics and the potential child support and alimony obligations inherent in a modern divorce.

Related Reading:
Calculation of Gross Income for New Mexico Child Support Worksheets
New Mexico Alimony: Til Death Do Us Part!
Three Basic Classifications of Support in a New Mexico Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the courts are required to address child support in any divorce involving minor children, or other determination of custody. The amount of child support is calculated based upon the income of the parents, specific child-related expenses, and the parents' custody arrangement using what are called child support worksheets. The payment of child support is mandatory and only in rare cases will a court deviate from the amount of child support due based on the child support worksheets.

Further, New Mexico law provides that child support payments should be made via wage withholding. The wage withholding order tells the employer of the parent ordered to pay support to take the child support payments directly out of the employee's paycheck as they would any other payroll deduction and to send the funds directly to the New Mexico Child Support Enforcement Division (CSED), or in some cases, directly to the parent receiving the child support.

The wage withholding order must state the amount of the child support payment as well as the length of time that support payments are to be made. The wage withholding order must also include the amount of any arrearage or back support due up until the day of the child support order along with the amount of any interest due on the arrearage. It is important to note that the maximum amount that may be withheld, along with any other wage garnishments, may not exceed fifty percent (50%) of the employee's income.

The court may make an exception to immediate wage withholding if it finds that there is good cause for not ordering immediate wage withholding or if the parents enter into a written agreement providing for an alternative way of satisfying the child support obligation.

Given that immediate wage withholding of child support payments is generally required under New Mexico law, the entry of a wage withholding order should not be viewed in a negative light by either the parents or the employer. In fact just the opposite is true. Wage withholding orders generally benefit both parents because it provides a means of tracking child support payments while ensuring that support payments are made promptly each month.

When a parent does not have regular employment, wage withholding may not be possible. Nonetheless, the parent ordered to make child support payment is still required to make the payments on time each month to either the receiving parent or to CSED. If the parent fails to make the payments CSED has many tools available to ensure that delinquent child support payments are collected, which includes everything from suspending the non-paying parent's driver's license to seizing their bank accounts and tax refunds.

Anyone looking at paying or receiving child support should discuss their rights and responsibilities with an experienced family law attorney, not only to ensure that the proper amount is being paid but to make sure that the payment is made in the most efficient way possible.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
The Dangers of Not Documenting Child Support Payments
Child Support Wage Withholding Benefits All!

Collins & Collins, P.C.
Albuquerque Attorneys

Unfortunately, sometimes the only witnesses to an act of domestic violence or abuse, besides the abuser and the victim, are the children. After a child is identified as a witness comes the question of whether the judge, hearing officer or special commissioner presiding over a domestic violence case will allow a child witness to testify.

In New Mexico, the Courts are incredibly reluctant to allow children to testify in any type of court proceeding. It is not typically in the best interests of the child to testify against one or the other parents. As such, the Court may use a variety of methods to gather information from children short of in-court testimony including, but not limited to: safe house interviews; custody evaluators; counselors; court clinicians; in camera interviews, and, guardian ad litems. However, in some, very limited circumstances, the Courts may allow children to testify.

A child's testimony may be crucial to the outcome of a domestic violence case, but the value of the testimony must be balanced against the numerous, negative consequences that testimony may have on the child. In many instances the child may feel a sense of loyalty to both parents and not want to take sides. Worse, they may fear being hurt if they testify against the violent party or being abandoned if they testify against the victim.

For these reasons, it is imperative that the court assess whether testifying will place the child in danger and ensure that necessary protections are provided for the child--including counseling to cope with potential emotional harm. Further, a child's loyalty to both parents and fear of reprisal by the abusive parent are also reasons why a child's testimony given in open court may not be inherently reliable.

Despite these concerns, New Mexico Courts have long considered children to be competent witnesses in the proper circumstances. While there is no particular age that has been determined to be conclusive of competency, in order to testify the witness must be capable of each of the following:

1. Ability to observe.
2. Sufficient intelligence.
3. Adequate memory.
4. Able to communicate.
5. Awareness of the difference between the truth and a lie.
6. Understand the obligation to tell the truth.

Determining whether a child is competent to testify can be accomplished through voir dire examination of the child as well as extrinsic evidence including testimony from doctors, psychologists, and/or therapists. Whether or not to admit a child's testimony falls within the broad discretion of the Court.

If your child's testimony is deemed necessary and your child is found competent to testify there are steps that can be taken to make the process as easy as possible for the child. For example, New Mexico Courts have found that it is permissible to use leading questions when a witness is "immature, timid or frightened" so long as "the words of the prosecutor cannot be substituted for the testimony of the witness." State v. Orona, 92 N.M. 450 (1979). Many Courts will also allow the use of what is called a "comfort item" for the child while testifying. For example, children have been allowed to hold a teddy bear while testifying because of the calming effect such items tend to have on children.

The question of whether a child should be called as a witness in a domestic violence proceeding, and the additional question of whether or not the Court will allow that testimony, is very complicated. Anyone facing such a situation, whether as a plaintiff or defendant, should consult an experienced family law attorney immediately.

Related Reading:
Domestic Abusers May Seek Control through Child Custody
High Conflict Divorce - What is It and How Do You Get There?
Child Custody and Timesharing in Domestic Violence Actions

Collins & Collins, P.C.
Albuquerque Attorneys