Albuquerque Divorce Lawyer Blog

There is no easy way for parents to share custody of their children. Yet the law in New Mexico, as well as many other states, requires parents to do just that based on the presumption that some form of joint, or shared, custody is in a child's best interest. Therefore, the result of most child custody disputes is the entry of a parenting plan, which is a written document that provides detailed instructions as to how parents will share time with, and make decisions for, their children.

A thorough parenting plan allows parents to side-step many of the pitfalls inherent in shared child custody situations., because it provides both parents and children with a predictable schedule and consistent solutions to problems that may arise. In general, a parenting plan should address legal child custody (which is the decision making process for the children in the areas of residence, education, religion, medical care and extracurricular activities) and should address timesharing by providing a detailed schedule of when and where the children will spend time with each parent.

However, every family and every child is different, so every parenting plan should be tailored to a family's unique circumstances. Some children will be more comfortable switching between parent's homes often, while others may need to spend longer periods of time with each parent and have fewer transitions between homes. In addition, the parenting plan should evolve over time, as a child's needs will change as they grow older. Here is a brief list of some of the major issues to be addressed in every parenting plan:

Child Custody and Visitation
In the past, child custody agreements generally have the children living primarily with the mother and then spending time with the father. However, the modern trend is away from such rigid application of timesharing schedules and there are many other child custody options available to families. Children may alternate time with each parent every four to five days, or alternate weekly. Where parents live far from one another, the child may spend the school year living with one parent, and spend some weekends, holidays and summer vacation with the other parent. There are many different combinations that will work; the most important consideration is what works best for the child.

In addition, the parenting plan should address childcare situations, if that is required. Both parents should agree on the method of childcare used, whether it is a babysitter, daycare or nanny. The plan should also provide for how the childcare costs will be split.

Transportation
Particularly where parents do not live close to one another, transportation is an issue that must be resolved. The parenting plan should address the method of transportation between the parents' houses. Even if a car is used, you must determine whether the custodial parent will drop off the child, or if the non-custodial parent will be picking up the child. If the distance is too far to drive, then parents need to agree on train or airplane transportation. If the child is too young to travel alone, arrangements for who will accompany the child will also need to be included in the parenting plan.

Basic Care
While it may seem obvious, parenting plans should also include information regarding the child's basic care. Parents can agree on ground rules for food, sleep and activities. Some parents may wish to have certain dietary restrictions, including organic diets or limitations on sugar. In addition, the parenting plan may include information about bedtimes for the child, so that the child is receiving consistent sleep periods regardless of which parent they are with.

These are just some of the issues that should be addressed by a good parenting plan. It may seem tedious to consider all of the details at the outset of a child custody determination, but addressing these details will almost always save the parties time and heartache by avoiding future conflicts over child custody. Securing representation by an experienced family law attorney to help parties negotiate and formalize their child custody agreements into a workable parenting plan is almost always money well spent.

Related Reading:
Long Distance Child Custody and Time-Sharing Arrangements in New Mexico
Custodial Interference in New Mexico Divorce & Family Law Cases
The Basics of New Mexico Child Custody Jurisdiction

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico law imposes a duty on both parents to support their minor children. Therefore, when the court issues order addressing child custody, it will almost always include a provision for child support. Alternatively, the court can issue an order on child support only that does not address custody, which is especially common when the New Mexico Child Support Enforcement Division takes action to collect child support.

No matter how a child support order is entered, the amount of child support is usually established using the New Mexico Child Support Guidelines, which provide specific instructions for how child support is to be calculated based on: the number of children; the gross income of the parents; the cost of work-related daycare for the children; the cost of health insurance for the children; and, in certain cases, some additional costs for the children. In extraordinary circumstances, the court may deviate from the Child Support Guidelines. However, such deviations are rare and a child support order that includes a deviation must provide good cause for the deviation. A child support order will often refer to the parent paying child support as the non-custodial parent and the parent receiving support as the custodial parent.

In some cases, child support is not entered until long after the parties have separated or the birth of the child that needs to be supported. In these cases, a non-custodial parent may owe child support back to the date of the parties' separation, or in some extreme cases, to the birth of the child. These back payments are typically referred to as child support arrears. Calculating child support arrears can be complicated; especially if it has been several years since the child support obligation began to accrue. The back child support should be calculated based on the parents' gross income at each point in the past, which can be difficult if parents frequently changed jobs or have not kept accurate records of their expenses for work-related child care and health insurance.

Parents seeking back support should think seriously about opening a case with the New Mexico Child Support Enforcement Division ("CSED"), which can assist them with establishing and collecting back child support. Depending on an individual's circumstances, the services of CSED may be free or available at a minimal cost to the custodial parent. When seeking back child support it is extremely helpful if the custodial parent can provide the social security number and the names of employers for the non-custodial parent. In addition, providing names, addresses and phone numbers of friends and former employers who may be able to help locate a non-custodial parent can be helpful.

CSED can access federal income records for parents, which can be invaluable when trying to calculate child support arrears. Once CSED and/or the court have determined an initial calculation of back child support, the non-custodial parent should be allowed an opportunity to provide proof of any payments made or other support provided, which may offset the total arrears calculation. The total amount of arrears is then typically entered as a judgment against the non-custodial parent that may or may not accrue interest depending on the circumstances of the case.

The non-custodial parent may have different options available to pay the back child support, including paying the whole amount as a lump sum, negotiating a reduced sum with the custodial parent or making monthly payments toward the arrears in addition to their ongoing monthly support obligation. If CSED is involved, it will generally require payments to be made via wage withholding so that it can keep track of payments and properly apply them to the ongoing monthly child support obligation and the arrears. However, both parents should also always keep track of payments made and received in case CSED makes a mistake in applying payment or if CSED is not involved at all.

Again, establishing and collecting back child support can be extremely complicated and can have serious financial implication for both the custodial and non-custodial parent. A parent on either side of a case involving child support arrears should think seriously about obtaining legal counsel with family law experience to ensure that back support is fairly and accurately addressed by court and/or CSED.

Related Reading:
Loss of Income and New Mexico Child Support
Financial Changes and Modification of Child Support
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

Sometimes during a child custody dispute, the court may decide that is needs additional information about the parties in order to determine what sort of custody arrangement is in the best interest of the parties' children. In these cases, the court may appoint an expert to conduct what is known in New Mexico as a custody evaluation, which is a formal investigation into each party's respective parenting skills and limitations and the needs of their children.

Generally, a full custody evaluation includes some or all of the following: a parental history survey; personal interviews with the parents and sometimes the children; psychological testing of both parents and sometimes the children; observed parent/child interactions; collateral contact with significant figures in the children's lives, like stepparents and therapists; and, follow-up interviews. Again, the custody evaluation, including psychological testing, is geared toward achieving the best interests of the child(ren).

During the psychological testing phase, the evaluator may administer some or all of the following psychological or personality tests:

Minnesota Multi-Phasic Personality Inventory
The Minnesota Multi-Phasic Personality Inventory ("the MMPI") consists of 567 questions, which require the test-taker to "agree" or "disagree" with many statements. The MMPI is considered almost impossible, if not completely impossible, for an ordinary person to "cheat" on. Typically, if a person tries to cheat, they will more than likely score poorly.

Millon Clinical Multiaxial Inventory
The Millon Clinical Multiaxial Inventory ("the MCMI") is somewhat similar to the MMPI. The test includes 175 true-false questions. The MCMI differs from other personality tests in that it is based on theory and is organized according to a multiaxial format. The test is intended to help identify underlying personality disorders, or traits, and then design an appropriate treatment programs.

Rorschach
The Rorshach Test, which is also known as the inkblot test, is a test where a person's perceptions of inkblots are recorded and then analyzed using psychological interpretations or complex algorithms. The test is administered in a very rigid way with a particular format to minimize variances in the results. The Rorshach inkblots are supposed to remain secret, so that a subject cannot prepare answers or attempt to affect the results in some way.

Rotter Incomplete Sentence Blank
The Rotter Incomplete Sentence Blank is a psychological test that comes in different forms for different age groups. It contains 40 sentences that are to be completed in 20 minutes. The sentences are usually only 1-2 words and the subject is then asked to complete the sentence. By grouping and evaluating the subject's responses, the evaluator can make determinations about the subject's psychological state of mind.

Psychological or personality testing is only one aspect of a custody evaluation, just as a custody evaluation is only one aspect of a custody dispute. However, both can have a significant effect on the court's ultimate decision on custody. Anyone involved in a custody dispute should consult with an experienced family law attorney in order to understand what the law requires of both parents and the courts in determining what sort of custody arrangement is in the best interest of the children.

Related Reading:
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Reunification Therapy in New Mexico Child Custody Cases
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship

Collins & Collins, P.C.
Albuquerque Attorneys

Complex child custody disputes involve more than just arguments over holiday timesharing and times for exchanges. These types of disputes often involve allegations that the bond between a child and parent is irrevocably broken or was never properly formed in the first place. Further, one parent may object to a proposed timesharing schedule because it will interfere with creating or maintaining an existing bond.

In New Mexico, such allegations are usually investigated by a custody evaluator, or other mental health professional who reports back to the judge presiding over the custody dispute. And one of the common psychological theories investigated by custody evaluators is called attachment theory.

In this context, attachment describes an affectional bond between two individuals. Between a child and a caregiver, the bond is based on the child's need for safety, security and protection. Attachment theory proposes that a child attaches instinctively to a caregiver, or multiple caregivers, out of a need for survival.

According to attachment theory, infants will form an attachment to any consistent caregiver who sensitively and responsively attends to their needs and interacts with them. While the biological mother is often the focus of an infant's attachment, the role can belong to anyone that behaves in a caregiving way over a period of time, which can include fathers or other caregivers.

The purpose of the attachment behavior from the child's perspective is to keep the caregiver in close proximity. By the age of only two months, an infant can start to distinguish between adults and become more responsive to their caregivers. By the age of six months, an infant's behavior will be directed at ensuring that caregivers make the child feel secure. Anxiety, fear, illness and fatigue will cause the child to exhibit stronger attachment behavior.

The challenge in a divorce, or other parental separation, is maintaining the child-parent attachments after that separation. For example, a situation where a child goes from living with both parents to living primarily with their mother and having limited time with their father can be jarring for a child who has become used to seeing his or her father every day.

Thus, experts recommend that parenting schedules for children younger than two or three should focus on ensuring continuity and security for the child and allowing frequent contact with both parents. As the child gets older, they may be able to handle longer periods of time away from each parent, but it is important that both parents still have opportunities for social interactions and nurturing activities, including soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night and the security of snuggling in the morning after awakening.

Unfortunately, in some cases, parents were not willing or able to form an attachment with their child when the child was young and want to begin doing so when the child is older. Such a situation can be incredibly complicated.

Experts generally agree that careful reintegration with the help of one or more treating professionals is necessary to build a relationship between the parent and child. Even with that help, a child may not form a traditional parental attachment to the formerly absent parent, but may be able to form a healthy relationship as they would with other adults in their lives.

Attachment problems are just one of the myriad complications that arise in a custody dispute. Consulting an experienced family law attorney can help parents identify these complications and investigate solutions that work within the legal system.

Related Reading:
Reunification Therapy in New Mexico Child Custody Cases
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Estrangement via Parental Alienation

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, a parent who is required to pay child support must generally pay that support until their child reaches the age of eighteen (18). However, that support obligation may continue until the child is nineteen (19) if the child is still enrolled in high school. Given that a child support obligation may continue for several years, there will often be changes in the financial status of the parents and/or their timesharing agreement that may require a modification of child support.

If the parents cannot agree on a child support modification, then the parent seeking to modify child support must file a motion with the court stating the grounds for the modification. Either parent may file the motion for modification. For example, if the supporting parent loses their job, they can file a motion asking the court to reduce their child support obligation. However, if the non-supporting parent finds out that that the supporting parent has received a raise, they can file a motion to increase child support. Remember that the timing of a motion to modify child support is important because any retroactive modification of child support will only be effective back to the date of filing of the motion.

In order for a court to modify child support, it must find that there has been a material and substantial change in the parents' circumstances since the entry of the last child support order. There is a presumption that a change in circumstances is material and substantial if more than one (1) year has passed since the entry of the last child support order and if the child support obligation will go up or down by at least twenty percent (20%).

One of the most common changes in circumstances that can cause the required twenty percent (20%) change in child support a parent losing their job. Even in good economic times, companies downsize or restructure and jobs are eliminated, which can result in a lay off. The court may modify child support after a parent has lost their job, but will take into account any unemployment benefits that the parent is receiving. Further, if a parent loses or quits a job and refuses to work at all, or is purposely working for less than they are capable of earning, the court may impute income to that parent. When the court imputes income, it looks at the education and past employment of the parent and determines a reasonable estimate of what a parent could earn if they were employed at their full potential. The court then uses that estimated income to calculate child support and the parent must pay child support based on that estimated income, whether or not the parent is actually earning that much.

In turn if a parent gets a promotion or new job with a significant increase in salary then the child support could go up the required twenty percent (20%). These increases often also occur when a parent that has been in school graduates and gets a job, or when a parent who has been staying home with a small child returns to work after the child begins kindergarten. Of course, in a return to work situation, the increase in income caused by one parent's new job may be offset by any daycare costs for the child, which will also be included in the child support calculation. Similarly, a modification of child support may be required when a child gets old enough to no longer need daycare and that expense can then be removed from the child support calculation. Whenever child support is reexamined, all of the factors included in a child support calculation must be examined, which is why parents should always exchange financial information and run their own child support worksheets before petitioning the court for a modification.

The law clearly provides for modification of child support based on change in the financial circumstances of one or both parents under the right conditions. However, determining whether not a change is significant enough to warrant modification can be complicated. Working with an experienced family law attorney can be essential not only in in determining whether or not a modification of child support is warranted, but also in determining what that child support amount should be.

Related Reading:
Ten Quick Facts About New Mexico Child Support
Loss of Income and New Mexico Child Support
Ongoing Exchange of Income Information: Benefits for New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, both parents are legally required to provide financial support for their children. When child support is ordered as part of a divorce or child custody dispute, one parent is typically required to make child support payments until their child turns eighteen (18), or until they are nineteen (19) if the child is still in high school. Depending on the timing of the child support order, parents can be paying child support for a very long time.

Given the substantial financial implications of a child support obligation, to both parents and their children, some parents choose to obtain life insurance policies that will pay their support obligation

style in the unfortunate even that a parent dies before their child turns eighteen (18). In some cases, the court may actually order a parent to obtain a life insurance policy and to maintain that policy until their child support obligation is completely satisfied.

Life insurance policies are available from a number of different places. Some employers offer life insurance to employees as a standard benefit. An employer-provided life insurance plan may not be sufficient to cover a child support obligation because they tend to have fairly low policy limits. However, employer-provided plans typically allow employees purchase additional coverage through the group plan. The major benefit of purchasing through a group plan is that it may not require completion of a medical examination, provided that the coverage stays under a certain amount.

Parents may also apply to purchase an individual life insurance policy directly from an insurance company. Insurance companies provide full life and term life insurance, and will offer significantly varied amounts of coverage. The insurance company will require a physical examination with a doctor or nurse, so that they can assess the health of the applicant. Any health conditions, along with smoking, will increase the cost of life insurance. Additionally, the cost of life insurance will vary depending upon the age and lifestyle of the insured person.

Once they have obtained life insurance coverage, parents may have several options for choosing the policy's beneficiary. The simple, direct approach is to name the child as the beneficiary of the life insurance policy. The problem with this approach is that it may provide a large lump sum to a child under the age of eighteen (18). Generally, a guardian will need to be appointed to administer the funds on behalf of the child. Then at age eighteen (18), the account must be given to the child outright. In the alternative, a trust fund could be set up and a trustee appointed to administer the life insurance funds. Or, the parent obtaining the life insurance policy may name the other parent as the beneficiary of the policy, which means that any proceeds would go directly to the other parent.

Given how unpredictable life can be, parents should carefully consider the options available for securing child support obligations. Life insurance can be expensive, but can provide both parents with an invaluable level of peace of mind knowing that their child will always be supported. Consulting with an experienced family law attorney is essential in any child support action so that parents on either side can understand their options for securing a child support obligation with a life insurance policy.

Related Reading:
Loss of Income and New Mexico Child Support
The Dangers of Not Documenting Child Support Payments
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods

Collins & Collins, P.C.
Albuquerque Attorneys

Parents involved in a divorce or child custody matter may often find themselves bombarded with paperwork, including documentation of income, assets and expenses, which they hope will end once the court makes a final ruling in their case. However, any family law case involving child support can mean that the stream of paperwork will keep flowing until the child emancipates and a child support obligation creases.

This is because, in New Mexico, the courts maintain jurisdiction over the issues of custody, timesharing and child support until a child turns eighteen (18), or in some cases until the child turns nineteen (19) if they are still in high school. In turn, a section of the New Mexico child support statutes (2004 NMSA 40-4-11.4) provides that either parent may ask the other to exchange certain income and expense information on an annual basis.

All New Mexico child support orders should include some type of language requiring parents to exchange the following information at least once per year upon request by either parent: 1) federal and state tax returns for the preceding year, including all W-2 statements and IRS Form 1099s; 2) wage and payroll statements for at least four (4) months preceding the request; 3) proof work-related daycare costs and payment thereof for the preceding year; and, 4) proof of dependent medical insurance premiums and payment thereof for the preceding year.

The idea behind the annual exchange of income requirements is that parents should exchange this information every year in order to determine whether or not a modification of child support is warranted. Child support can only be modified by the court when there has been a material and substantial change in circumstances. The court will only find that a change in circumstances is material and substantial if it results in an increase or decrease in child support of at least twenty percent (20%). Thus, the courts want the parties to exchange income information and determine whether or not they meet the twenty percent (20%) requirement before either parent files for a modification of child support.

Not all parents request an annual exchange of income; some are content to carry on with an initial child support order for years. However, both parents are entitled to make the request and both parents are required to respond to such a request, which, depending on the age of their children, can result in parents exchanging paperwork for years and years. While the result of the annual exchange requirement may create a seemingly endless exchange of documents, it really is a good thing.

The annual exchange requirement is a method for parents to reevaluate child support yearly without necessarily having to involve the courts. If the income information shows that child support will not change, then the parents can go on their way until the next year. Or, if the income information shows that a modification of child support is necessary, then the parents can calculate and agree on a modification. Upon such an agreement, parents can simply submit as stipulated order memorializing that agreement to the court for approval. As long as the modification is clearly supported by a child support worksheet as required by the New Mexico child support guidelines, the court will likely enter the order and may not even require a hearing to do so.

Of course, the parents may not agree on a modification and may have to pursue court action to force the issue, but because of the annual exchange of income information, the parent pursuing the modification should be prepared to prove their case to the court. A parent on either side of a child support obligation is well-served to consult with an experienced family law attorney at any point in the child support process.

Experienced family law counsel can help parents complete and enforce the required annual exchange and handle the potential modification that comes from the exchange.

Related Reading:
New Mexico Divorce and Family Law Jurisdiction
The Basics of New Mexico Child Custody Jurisdiction
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Kinship Guardianship Act ("the Act") establishes a legal procedure that protects the relationship between a child and what is known as a kinship caregiver. Under the Act, a kinship caregiver is an adult who has been caring for a child as a parent would, but who is not the child's parent.

A kinship caregiver may be a family member, but does not have to be related to the child if that person has provided consistent care, maintenance and supervision of the child. The Act allows kinship caregivers to be appointed as legal guardians so that child they care for can have a safe and stable home.

Under the Act, a kinship caregiver may petition to be appointed as the guardian of a child when the child has lived with the kinship caregiver for more than 90 days, without either parent. The kinship caregiver must then show the court that the child's parents consent to the guardianship or that the parents are unwilling or unable to care for the child.

The New Mexico Supreme Court recently overturned a New Mexico Court of Appeals case involving the Act. In the case of Freedom C. v. Patrick D., the Court addressed a very specific portion of the Act that applies when one or both parents refuse to consent to the appointment of a kinship guardian.

The central issue before the Court in Freedom C. was whether both parents have to be deemed unfit and unwilling to care for a child before a kinship guardian can be appointed, or if a kinship guardianship is appropriate as long as each parent is either unfit or unwilling. The Supreme Court concluded that the legislature intended that each parent must meet only one of the requirements regardless of whether each parent meets the same requirement.

In Freedom C., the mother consented to the grandparents being appointed as the kinship guardians of her child. However, the father objected to the appointment. Prior the filing of the petition for kinship guardianship, the mother and the child resided with the grandparents for more than 90 days, but the father did not. Also prior to the filing of the petition for kinship guardianship, the grandparents were granted temporary custody of the child, but the parents were provided with visitation privileges.

The Court concluded that both parents satisfied the requirements of the Act because the father did not reside with the child during the 90 day period when the grandparents petitioned for guardianship and both parents were either unable or unwilling to adequately care for the children.

Pursuing a kinship guardianship can be similar to a traditional custody action in that the court is always concerned about reaching a decision that is in the best interest of the child. However, as Freedom C. shows, the procedural requirements for a kinship guardianship are very specific and can differ from those that apply in more typical custody disputes.

Anyone considering pursing a kinship guardianship action should consult with a family law attorney as soon as possible to ensure that they meet the initial requirements of the Act and to discuss how to successfully pursue a kinship guardianship claim.

Related Reading:
Extended Family Members Have Few Rights Over Children
Acquiring Third Party Child Custody in New Mexico
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.
Albuquerque Attorneys