Albuquerque Divorce Lawyer Blog

Orders of protection are only effective if they are consistently enforced by both the court and law enforcement. Failing to enforce an order of protection can put the victim in even more danger by creating a false sense of security and encouraging offenders to violate the order because they feel there is no real risk of arrest or prosecution. Fortunately, there are numerous procedures in place to assist with the enforcement of orders of protection.

The Family Violence Protection Act requires that all orders of protection be filed with the clerk of courts and a copy sent to local law enforcement. A copy of the order must be sent to law enforcement so that it can be served on the offender and to alert local law enforcement of the existence of the order.

When local law enforcement is aware that an order of protection has been issued they are better prepared to take action if a disturbance occurs. This includes warrantless arrest of the violator and the filing of criminal domestic violence charges. The Family Violence Protection Act requires police officers to "arrest without warrant" any person the officer has probable cause to believe has violated an order of protection and to charge the violator with "all possible criminal charges arising from an incident of domestic abuse." Violating an order of protection is a misdemeanor. A second conviction is punishable by a mandatory jail sentence of not less than 72 consecutive hours that cannot be suspended or deferred. Repeated violations can and are often charged as a felony.

Courts also have many options available to enforce compliance with orders of protection. Just a few of those options include:

1. Arranging for supervision of criminal contempt cases through the probation department's pretrial supervision program.
2. Treating failure to participate in court-ordered treatment as a serious violation of the order.
3. Promptly conducting hearings on all contempt motions.
4. Issuing increasingly severe penalties for repeat violations of an order.

Criminal or Civil Contempt?

Whether the violation of an order of protection results in criminal or civil charges aruably depends largely on whether the contempt order is meant to punish the violator for his wrongful acts or to make the violator comply with the order. In either case, the violator may be placed in jail so the perpetrator may not appreciate the subtlety of the distinction.

It is important to understand that conviction for violating an order of protection can result from any violation of the terms of the order. This can result from any violation of the order from phone calls, to email, to contact through Facebook, to actual physical contact with the alleged victim. Keep in mind also that there can be a violation and criminal charges for violation of an order of protection even when the original charges that form the basis for the order of protection are found to have no merit.

Finally, it is important to understand that even if an order of protection is issued outside of New Mexico, the Federal Violence Against Women Act (VAWA) gives New Mexico courts and law enforcement authority to enforce the Order. The Act requires that New Mexico courts give full faith and credit to orders of protection properly issued by other states.

Though it is often preferable to have the assistance of an experienced family attorney to guide a victim through this process, there are many resources available to victims of domestic violence who cannot afford a private attorney.

Related Reading:
Violence Against Women Act Reauthorized By The U.S. Senate
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Whether Civil or Criminal, Domestic Violence Finding Has Severe Consequences

Collins & Collins, P.C.
Albuquerque Attorneys

According to New Mexico law, all debts incurred during a marriage are considered to be community property and will be divided equally between the spouses during a divorce. Separate property is individual property acquired before the marriage through purchase, gift, inheritance, and property that has otherwise been legally established as separate property.

What many people fail to understand is that while the New Mexico district court allocates portions of community debt to each spouse as part of a divorce decree, that district court order does not bind third-party creditors. Which means that, even though a divorce decree assigns a particular debt to one of the spouses, if that spouse does not pay on the debt the creditor continues to have a legal right to pursue the other spouse for payment of the debt. This can result in a spouse being pursued by a creditor for debts not contemplated under the terms of the divorce decree.

Since most creditors will not allow you to just switch the account holder designation from one individual to another, your recourse lies with the family court that handled the divorce proceeding. A claim can be brought against the ex-spouse for violating the divorce decree by not paying his or her share of the debt assigned to them and for restitution.

There may be some recourse for the innocent spouse in form of court ordered restitution. Restitution is repayment of any money paid by you to a creditor that should have been paid by your ex-spouse.

The divorce court can also assist you by ordering the ex-spouse to cooperate by completing necessary paperwork or signing documents that may allow you to have debt moved from one spouses name to the other. For example, the court may order one party to attempt to open a credit account in order to transfer the balance to that account. This would insure that the debt is only in the spouse's name that was assigned the debt in the divorce decree.

Also, the court can order a spouse to seek refinancing of a mortgage still held in both spouses name or to attempt to sell off property that was allocated by the decree to one spouse and for which the debt has become delinquent.

Unfortunately one spouse's failure to pay his or her debts as assigned by the divorce decree can have a negative impact on the other spouse's credit rating. While a negative credit reporting cannot be removed, you can annotate the negative reporting with a 100 word comment stating why the account was not paid pursuant to the terms of the contract with the lender. This may not likely improve your credit score, but if you do apply for credit in the future it will allow those future creditors to better understand your situation when they review your credit report.

While these type of post-divorce payment problems may not be completely avoidable, one way to mitigate the damage is to provide as much detail as possible in the marital settlement agreement and final decree of divorce. This would include very specific provisions regarding the legal and binding transfer of debt from one party to the other.

Most importantly, parties should be ordered to refinance debt whenever possible so that ongoing debts don't remain held in both parties' names. This provision should include detailed timelines for when and how debts will be repaid. It is very often worth the time and money required to discuss allocation and payment of community debt with an experienced family law attorney in order to ensure that things go as smoothly as possible once the divorce is completed.

Related Reading:
Protecting Your Credit Before, During, and After Your New Mexico Divorce
Financial Recovery After Divorce: There is a Light at the End of the Tunnel
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of reasons why divorced or separated parents move away from the city or state where their children reside. Whether it is the custodial or non-custodial parent who is moving away, or both, such a move creates obvious problems for parents who share child custody.

However, there are a host of long-distance time-sharing solutions that parents can try in order to minimize the stress that a substantial change in time-sharing can put on their children. It goes without saying that any solution will be much more effective when parents have a civil relationship that encourages open communication about child issues, including custody and time-sharing arrangements.

First of all, in a joint custody situation, when a parent wants to take their children out of state permanently, the moving parent cannot leave with the children without the agreement of the other parent. If the parents can't agree on the move, then the parent who wants to relocate with the children will need to get the Court to approve the move. Many New Mexico parenting plans provide a set of procedures for parents to follow when one or both want to leave the state with the children.

When the Court does allow a parent to move with the children, there are several issues to be considered. Other than missing regular contact with their children, the costs of travel and other expenses presented by long-distance time-sharing can be one of the most difficult issues for parents to address. Aside from travel costs required to visit with the non-custodial parent, there may also be long-distance telephone bills as well as increased costs for mailing gifts and other items. Parents may also wish to purchase a computer, web camera, or cell phone to keep in touch with their out-of state children.

This may require some compromises on the part of the parents. In the absence of compromise, the intervention of the Court may be required. In some cases the Court may reduce child support payments to make up for the costs of travel and communication. In other cases, ther Court may require the moving parent to be largely or fully responsible for travel and other communication costs.

The logistics of scheduling visitation also becomes more difficult in a long-distance time-sharing agreement and will depend heavily on where the parent and children are moving. It is generally easier for parents to schedule frequent visits between New Mexico and a neighboring state than a distant state. In addition, distant locations my complicate travel for small children when flight connections are required. In fact, this may not be realistic at all since navigating airports and connections, even with the assistance of airport personnel, can cause significant stress on a young child traveling alone. If long distances make it impossible to have frequent visits, the court will often restructure visitation to provide for longer visitation periods with the non-custodial parent during the summer months or other periods when the children are out of school.

Assuming the children are moving also, when planning a move that will require long-distance time-sharing, the moving parent should be ready to show the Court that they are not moving in an effort to create distance between the non-custodial parent and children. The moving parent should also be open to facilitate as much time as possible during school breaks and summers to compensate the other parent for lost time with the children.

Parents pursuing relocation should also try to support a relationship between the children and the non-custodial parent and strive to maintain communication and shared parenting responsibilities with the non-custodial parent. Getting approval for relocation can be a very long process and any parent considering relocation should consult an experienced child custody attorney as soon as possible in order to ensure that the process is on the right track from the beginning.

Related Reading:
Taking Your Child Out Of State in a New Mexico Child Custody Case
Custodial Interference in New Mexico Divorce & Family Law Cases
Leaving the State in Child Custody Setting

Collins & Collins, P.C.
Albuquerque Attorneys

Paying child support is a legal obligation. If an individual fails to make child support payments, then there are several collection methods that the Child Support Enforcement Division (CSED) of the New Mexico Human Services Department can use to enforce child support orders and collect past due child support. These include, but are not limited to: wage withholding; liens on property; seizing bank accounts and other assets; intercepting tax refund; findings of contempt, which could include fines or jail time; revocation of driver's and professional licenses; and, denial of passports.

The most common collection method used by CSED is wage withholding, which is similar to a garnishment. A wage withholding order instructs the employer of the non-paying parent to take the child support payments directly out of the non-paying parent's paycheck and send those funds to CSED. These days, most New Mexico child support orders include an immediate income withholding provision unless there is good cause for another payment method, or both parents agree otherwise. For parents with a regular paycheck, wage withholding is treated like any other type of payroll deduction similar to taxes and social security. Though wage withholding can be used as an enforcement tool, wage withholding can benefit both the paying parent and the receiving parent because it provides a tracking system for payments and ensures that payments are made promptly.

However, many parents who are ordered to pay child support have unsteady jobs or are self-employed and wage withholding may not be practical. In these situations CSED has several other methods that it can use to collect and enforce child support orders in case of non-payment.

CSED may seize the bank account of a non-paying parent in order to enforce a child support order. New Mexico, like other states, has agreements with banks and other financial institutions to conduct quarterly data matches through the Financial Institution Data Match (FIDM) program. The purpose of FIDM is to identify the financial accounts of parents who are delinquent on their child support. Once the accounts have been located, CSED may issue levies and liens against the accounts to satisfy the non-paying parent's child support obligation.

CSED may also put a lien on property belonging to the non-paying parent. Even though this does not result in immediate payment of the past due support, it prevents the non-paying parent from transferring, selling, or borrowing against the property until the lien is removed. Additionally, CSED has authority to seize any state and federal tax refund owed to the non-paying parent in order to satisfy for past due child support.

In addition, CSED may suspend a non-paying parent's driver's license as well as any professional, recreational, and occupational licenses that they may have. If a non-paying parent owes more than $2,500, CSED can also report the parent to the U.S. Department of State, which can prevent the non-paying parent from getting a passport issued or renewed.

Finally, non-payment of child support can lead to findings of contempt against the non-paying parent. A parent found in contempt of court for failure to pay a child support order may face jail time, fines or both.

It may take a few months of failure to pay child support for CSED to start to take action against a delinquent parent. However, once CSED gets involved, it is very difficult to avoid paying child support. Similarly, if CSED makes a mistake in their record-keeping it is imperative that a paying parent correct that mistake as soon as possible to avoid being subjected to the collection methods outlined above.

If you are involved in a child support case, whether you are ordered to pay child support or to receive child support, it is important to discuss all of your rights and obligations with an attorney experienced New Mexico child support.

Related Reading:

Loss of Income and New Mexico Child Support

The Dangers of Not Documenting Child Support Payments

Child Support Wage Withholding Benefits All!

Ability to Pay in Child Support Contempt Hearings

Collins & Collins, P.C.
Albuquerque Attorneys

Many parents know that payment of child support is often a delicate topic because the parent receiving the support may depend heavily on receiving it each month. In turn, the parent paying the support may have a tough time making ends meet and still managing to pay their monthly child support obligation.

In New Mexico, child support is computed according to the New Mexico Child Support Guidelines, which calculate child support using either a Worksheet A or a Worksheet B, depending on the parents' timesharing arrangement. The amount of monthly child support is calculated based on the parents' combined gross income, after giving parents credit for any work-related daycare expenses and the cost of providing health insurance. The guidelines and support calculator are available in the family law section of the New Mexico Court website at http://www.nmcourts.gov/.

In New Mexico, child support is mandatory and parties can only agree to deviate from the New Mexico Child Support Guidelines for good cause. Often, a judge will not approve a divorce decree or parenting plan that does not include a Child Support Worksheet.

If a parent who is obligated to pay child support loses their income, then that parent is still responsible for child support as ordered by the Court. Paying parents may have a variety of reasons that makes them unable to continue paying the support obligation as ordered by the court. In some cases a parent is laid off or fired and they may not be able to find a new job earning the same income as their previous job, or may not be able to find employment at all. In others, the paying parent cannot continue to work because of injury or illness.

Parents who find themselves unable to pay their child support obligation must immediately file a motion to modify their child support in order to reflect their change in income. However, regardless of the circumstances, a parent cannot unilaterally reduce support or stop paying support entirely. The parent must file to modify the support order before reducing or stopping any payments.

Until the support order is modified, the parent will still owe the full amount of support under the existing order. If the support order is not modified and the parent fails to pay, the Child Support Enforcement Division (CSED) of the New Mexico Human Services Department can use several collection methods to enforce child support orders including intercepting the tax refund of the spouse that is supposed to be paying support, seizing their bank accounts, suspended driver's and professional licenses, and asking the court for an order of contempt and jail time.

The New Mexico statutes provide that a court may modify a child support obligation if the parent can show a "material and substantial change in circumstances" occurred after the entry of the child support order. There is a presumed "material and substantial change" when more than one (1) year has passed since the entry of the last support order and when the parents' current circumstances, including incomes and timesharing arrangements, would result in the monthly child support payment going up or down by at least twenty percent (20%). The statues also provide that either parent can request financial information yearly from the other spouse to determine whether their income has changed substantially.

It is advisable to file motions to modify support as soon as possible because support will only be retroactively modified to the date of the filing of the motion, not before. In any case, anyone seeking modification should contact an attorney experienced in child support matters.

The Dangers of Not Documenting Child Support Payments
Bankruptcy Does Not Eliminate Support Obligations
5 Tips to Help Child Support Go Smoothly
Child Support Contempt Hearing Procedures Following Turner Case

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico child custody laws are based on a presumption that joint custody is in a child's best interest, which means that the New Mexico courts favor parents sharing both legal custody and physical custody of their children (remember that physical custody is now often called timesharing). However, there are certain discrete situations where sole custody is appropriate and may be ordered by the court. The main goal of New Mexico family courts is to make decisions that will promote a child's emotional, mental, and physical development; a court will only award sole custody of a child if it advances these goals and determines that such an award is in a child's best interest.

Sole custody grants one parent all of the rights and responsibilities of raising a child, while denying them completely to the other parent. Sole custody can be legal, physical, or both. Legal custody entitles a parent to make all important decisions regarding a child's life, including education, religion, health care, activities, and beyond. Physical custody, or timesharing, refers to the time a parent is entitled to spend with the child.

Courts may award sole custody to one parent when the other parent has been deemed to be an unfit parent. A parent can be found unfit due to a drug or alcohol dependency or findings of child abuse or neglect. Other factors considered by the court are whether the parent has placed the child in dangerous situations or whether the parent has a history of violence or mental instability.

However, courts are moving away from awarding sole custody to one parent as they recognize the importance of having a relationship with both parents to a child's development. The New Mexico courts' presumption that that joint custody is in the best interests of a child makes it very difficult for a parent to obtain sole custody without the extraordinary circumstances discussed above, i.e. a drug or alcohol problem or a finding of abuse or neglect.

In very few cases, parents' complete inability to communicate and cooperate on parenting issues may lead to an award of sole legal custody. In those types of cases, the court may award sole legal custody to one parent while awarding joint physical custody, or timesharing, to both parents by granting the non-custodial parent visitation with the child. Today, courts are very reticent to completely sever a parent child relationship, which is often the result of an award of sole legal and physical custody that prevents a non-custodial parent from any meaningful involvement in their child's life.

Further, if a joint custody order is already in place, a court will only replace it with a sole custody order if there has been a material and substantial change to conditions affecting the child's welfare that makes joint custody no longer in the best interests of the child.

Family law attorneys strongly caution their clients against petitioning for sole custody if their only reason for doing so is animosity towards the other or getting some kind of revenge on an ex-spouse. Since custody determinations are always made based on the child's best interest, this kind of behavior could work against a client. However, if there is a valid reason for requesting sole custody, a court may be inclined to grant it.

The guidance of an experienced child custody attorney can help parents determine what form of custody is actually in their child's best interest and how to best demonstrate that to the court.

Additional Reading:
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Taking Your Child Out Of State in a New Mexico Child Custody Case
Loss of Control Over Private Matters in Child Custody Cases May Rile Smokers (And Other Parents)

Collins & Collins, P.C.
Albuquerque Attorneys

While it may sound a bit strange at first, divorce ceremonies are beginning to gain recognition as a way to help children cope with their parents' divorce and a way to reaffirm parents' commitment to raising their children as a parental unit. A recent MSNBC article discusses this new trend.

First off, divorce ceremonies are not the same as divorce parties. While a divorce party usually entails a festive atmosphere of food, music, and drinking; a divorce ceremony is a more solemn and serious occasion. Divorce ceremonies focus on the future behavior of the former spouses toward each other and their children.

Many people feel that, like any major transition in life, a ceremony is an appropriate way to signal the end of a marriage. In this case, the ceremony is more like a funeral or memorial than a wedding in that it marks the end of a relationship and is meant to provide closure to all of those involved. Divorce ceremonies are intended to help all parties involved deal with the hurt, anger, and blame that usually arises from a divorce. These ceremonies are meant to foster peace, forgiveness, and closure for all members of the family.

Often divorce ceremonies are aimed at the children and helping them get through the emotional trauma of a divorce. However, they may also seek to solidify parents' understanding and commitment to their roles as co-parents after the end of their marriage. The centerpiece of the ceremony entails the former couple reciting vows in front of their children, family, and friends in a way that is similar to a wedding. The vows are promises the parents make to each other and their children about how they will handle parenting issues in the future.

Divorce ceremonies vary considerably. In some ceremonies, both parents and former spouses take part. In other situations, perhaps due to acrimony between the former spouses, only one parent takes part in the ceremony. Divorce ceremonies are usually solemn occasions, with a minister, rabbi, official, friend, or family member conducting the ceremony. Former couples or individuals pronounce their vows publicly and in some cases, children are invited to share a few words as well.

Although divorce ceremonies may seem a like a novel idea, they have been part of the Jewish religion for centuries albeit in a different format. As more and more couples opt for divorce ceremonies, churches and other places of worship have begun to celebrate them. Some churches have divorce prayers and liturgies, including the United Church of Christ and the United Methodist Church.

It remains to be seen whether the recent increase in divorce ceremonies will continue. In turn, the question of whether or not a divorce ceremony has any beneficial effects for those involved depends heavily on the parties involved. While it may not be the right fit for certain people, divorce ceremonies can be a way to open lines of communication and establish interaction patterns that could be helpful in the future. This might be particularly helpful for future child custody issues.

Albuquerque Attorneys

It has become common knowledge that nearly 50% of marriages in the United States end in divorce. When it comes to divorce in New Mexico, there are a variety of ways to approach the divorce process, which can be broken down into three general categories: litigated divorce, collaborative divorce and a Pro Se divorce. These are only general categories. There will be variations within each general category.

A litigated divorce means that the parties are actively using the court process to complete their divorce and is what people usually associate with the idea of divorce. A litigated divorce may be necessary when the parties cannot come to an agreement on child custody, child support, property division, etc. However, a litigated divorce is not just one that ends with a trial and decision by the judge rather; a litigated divorce really just means that the court is more actively involved during the pendency of the divorce. In most so-called litigated divorces, there is no trial and the parties reach an out of court settlement. However, the court may have to order the parties to participate in settlement or may have to issue interim orders about custody or who will pay the bills while the divorce is pending. If the case does move to trial, a judge has the power to make all of the important decisions regarding property division, support and child issues.

A collaborative divorce is one in which both parties agree to work in partnership to reach a divorce settlement agreement without going to court. Typically, each party has their own attorney but there are also other agreed-upon professionals, such as a child custody specialist and an accountant involved to advise both parties on how to best address the issues involved in their divorce. The collaborative process depends on complete transparency between the parties and all of the professionals involved as they work together to craft a divorce settlement. A collaborative divorce may be less expensive than a litigated divorce, if the parties complete the process and reach an agreement. However, in a collaborative divorce, the parties and their attorneys enter an agreement whereby the attorneys are forced to withdraw if litigation is threatened or the parties cannot come to an agreement. This means that should this happen, the parties would need to get new attorneys and begin the process of divorce again. So collaborative divorce is only effective if the parties truly commit to that form of resolution.

Using mediation or settlement facilitation is a sort of happy medium between a fully litigated divorce and collaborative divorce, which involves the parties using a neutral third party to negotiate a divorce settlement. Parties work with their individual attorneys during mediation to understand their rights and obligations. The mediators are not allowed to dispense advice to either party, but should be trained professionals that can give each party a reasonable idea of how the court will address each issue in order to encourage settlement. In a litigated divorce, parties are almost always ordered to participate in at least one mediation or settlement facilitation before the court will grant them a trial and, in a collaborative divorce, the parties may choose to uses a mediator or facilitator to assist in negotiations.

Finally, in a Pro Se divorce, the parties do not have attorneys and prepare documents resolving their divorce themselves. Keep in mind that Pro Se does not mean uncontested or that the case is not litigated. In fact, Pro Se divorces can often be the most adversarial of all for numerous reasons. A Pro Se is often not recommended unless the marriage was short, there are few assets, and there are no children involved because the parties may be giving up rights or incurring responsibilities that they do not fully understand. Though avoiding attorneys sounds, and sometimes is a good thing, a Pro Se divorce can go south pretty quickly. In addition, and perhaps more importantly, the parties make decisions and agreements that are bad for one or both of them which without the good graces of the other party cannot be undone or require extensive legal assistance to fix.

If you are contemplating divorce, your options may be dictated by financial considerations. If you can afford one, it is generally advisable to seek the guidance of an experienced family attorney to discuss the best way to approach your individual situation.

Related Reading:
Uncontested Should Not Mean Sloppy in New Mexico Divorce Proceedings
Valuation of the Marital Estate in New Mexico: The Importance of Full Disclosure
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

While there is no specific, uniform definition of the "best interests of the child," this is a standard that is used by courts in many states to determine many child-related issues, especially those involving child custody and timesharing.

Specifically, The best interests of the child standard is used by the New Mexico courts when family law cases involve issues like: child custody, timesharing and visitation, child support and termination of parental rights. The standard also comes up in relation to abuse and neglect cases involving the Department of Children Youth and Families ("CYFD").

In order to determine just what is in a child's best interest, courts make a number of assumptions regarding child development and family dynamics. There are several objectives and goals that influence the analysis of what is best for the child. In New Mexico, courts have expressed the philosophy that maintaining family integrity is extremely important to a child's well-being and development. This philosophy forms the basis for New Mexico's statutory rule that joint custody is usually in the best interests of the child unless there is evidence to the contrary.

There are several factors that a court must consider when determining whether a certain custody or timesharing arrangement is in the best interests of a child. Section 40-4-9 NMSA 1978 enumerates some, but not all, of the factors that a court should consider when determining the best interests of the child in custody matters. These include the wishes of the parents and child; the relationship between parent and child as well as between the child and other siblings and family members; the child's adjustment to home, school, and community; and the physical and mental health of all those involved. New Mexico courts are not allowed to consider the gender of the parent as a factor when making custody decisions though many parties believe otherwise.

In New Mexico, to determine whether joint custody is in the best interests of a child, a court must also consider additional factors along with those listed above. Parents are supposed to submit a proposed Parenting Plan before being awarded joint custody by the court that provides all of the details of how parents will share custody and time with the child. Additional factors that courts may consider when awarding joint custody include: the bonds that the child and each parent have developed, the ability of each parent to provide adequate care for the child during each period of responsibility, and the willingness of each parent to accept the responsibilities of caring for the child and not intruding in the other parent's rights. The court will also consider the geographic distance between the parents and their ability to communicate and cooperate on issues involving the child. In complicated cases, the court will often appoint a custody evaluator, Guardian Ad Litem, or other expert in order to provide professional opinions as to what is in the child's best interest.

The main goal of New Mexico family courts is to do what is best for the child and to make decisions that will likely promote the child's emotional, physical, and mental well-being. It is important for parents to understand this standard in order to formulate realistic expectations involving child custody and placement issues. Above all, parents involved in a custody dispute must remember to put their child's needs first; if they fail to do so, the court will certainly remind them.

Because there are so many factors involved in the determination of the best interests of the child in these situations, it is generally advisable if possible to have the assistance of an experienced child custody attorney.

Related Reading:
10 Things NOT to do During a Child Custody Exchange
Top Ten Ways to Make a Child Custody Exchange Go Smoothly
Preparation for Family Law Hearing Includes Managing Expectations

Collins & Collins, P.C.
Albuquerque Attorneys

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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Child support payments can become an extremely contentious issue among former partners. While non-custodial parents sometimes simply fail to pay their child support obligations, in other situations non-custodial parents pay child support regularly, but a vindictive custodial parent claims not to have received payment. For this and other reasons, it is important to keep accurate documentation and proof of every child support payment. Parents that chose not to document payments, or to pay in cash, face several serious consequences.

In general, New Mexico child support orders contain a mandatory wage withholding provision where child support payments are deducted directly from the non-custodial parent's paycheck. However, certain child support orders do not contain a wage withholding provision. This can happen if the non-custodial parent is unemployed or self-employed or both parents and the court come to an agreement on a different payment method.

Problems often arise in these situations when a non-custodial parent pays child support and the custodial parent claims that they did not receive the payments. The most difficult problems occur when the non-custodial parent has paid child support in cash and there is no documentation of the payment ever being made. Documentation of payment can be in the form of cancelled checks, money order receipts signed by both parents, cash receipts signed by both parents, bank statements, or any other form of record that shows support was paid by one parent and actually received by the other parent.

The New Mexico Human Services Department's Child Support Enforcement Division (CSED) enforces child support orders. If a dispute over payment of child support arises, under CSED regulations, the non-custodial parent has the burden of proving that payments were made; CSED does not have to prove that the non-custodial parent did not pay child support. If a parent cannot show proof of payment of child support, under CSED regulations child support has not been paid, the parent will not be given credit for undocumented payments, and CSED has the authority to obtain payment through several different methods, such as intercepting tax refunds.

If a non-custodial parent cannot prove that they paid their child support, then the custodial parent can initiate a CSED action to obtain the support payments that are allegedly due. If there is no possibility for wage garnishment because the parent is unemployed or self-employed, CSED may place a lien on property owned by the non-custodial parent, suspend driver's and professional licenses, seize bank accounts, intercept federal and state tax refunds, and seek contempt fines and jail time.

Child support payments are also enforced under Federal Deadbeat Parent Punishment Act ("Deadbeat Dad Act"). Under the Deadbeat Dad Act, a parent that willfully fails to pay child support faces a prison sentence of up to two years and may be ordered to pay restitution.

In order to avoid having to prove child support payments should a custodial parent claim that payments were not received, a non-custodial parent can apply for CSED to collect and distribute payments. This will create a record of payments made by the non-custodial parent. Non-custodial parents who are self- employed may also be able to arrange for automatic funds transfers from their bank to CSED. Non-custodial parents often resist wage-withholding orders, but it can be the best way to ensure that they are given proper credit for all of their child support payments.

Child support issues can spiral out of control quickly, especially if one parent claims to have paid support and the other parent claims the contrary and if CSED is involved. For this reason, it is important to pay child support in a way that can be documented. If you are having problems with a former partner regarding child support payments, an experienced family law attorney will be able to identify your responsibilities under New Mexico law.

Related Reading:

• 5 Tips to Help Child Support Go Smoothly


• Child Support Wage Withholding Benefits All!


• Ability to Pay in Child Support Contempt Hearings

Collins & Collins, P.C.
Albuquerque Attorneys