Albuquerque Divorce Lawyer Blog

Disharmony in the family can be disruptive to everyone involved, particularly when a grandparent is denied visitation by the parent of a grandchild. Denying contact can come through many means, including disagreements in parenting philosophies. When this happens, grandparents have little recourse in cases where the child's immediate family is still intact. Grandparent time-sharing and visitation rights are pretty limited.

In situations where a family is in the midst of paternity, divorce or separation proceedings, the New Mexico Grandparent Visitation Privileges Act provides a way for grandparents to petition the court for visitation rights. Rights are often limited to cases where a grandchild under the age of 6 has lived with a grandparent for at least 3 months or a grandchild over the age of 6 has lived with a grandparent for at least 6 months. Grandparents may also petition the court in some instances when the child has been adopted or if one or both of the child's parents have died.

Nevertheless, this statute is narrowly drafted to protect the fundamental rights of parents to raise their children without outside intrusion. If the child's immediate family is still together, grandparents cannot interfere. This is true even when a grandparent disagrees with a parent's methods, relationships, morals, discipline or any other aspect of parenting.

In fact, parents have no legal responsibility to allow visitation between their children and grandparents. However difficult it may be, grandparents cannot force themselves uninvited into the lives of their grandchildren.

It would be in the best interest of everyone involved to remain agreeable, even in the midst of differing viewpoints. Yet, when tensions occur between parents and grandparents, children often suffer the consequences which may include a loss of contact with extended family. Grandparents should keep this in mind in their relations with the parents and grandchildren.

Collins & Collins, P.C.
Albuquerque Attorneys

It is the preference of New Mexico courts that both parents participate in the lives of their children. This participation can become complicated when unmarried parents are involved, particularly when disagreements arise or an unmarried father is being denied access to his child.

Under New Mexico law, a child born to married parents is presumed to belong to both parents. On the other hand, a child of unmarried parents is deemed to be only the child of the mother. Unless certain measures have been taken by an unmarried father, such as being named on the child's birth certificate or confirmation of paternity through blood testing, there is no automatic presumption of paternity. This means that the unmarried father of a child may have to legally establish paternity to exercise his rights to physical and legal child custody.

In order to establish his paternal rights, an unmarried father must file a Petition to Establish Paternity. More specifically, since child support kicks in once paternity is established, a Petition to Establish Paternity, Child Support and Child Custody is filed.

Once filed, there a number of options for establishing paternity. The parties can agree and enter a Stipulated Order Establishing Paternity, Child Support and Child Custody. More common, the parties will agree to Paternity and child support reserving the issue of custody. Perhaps just as common and for obvious reasons, if the parties cannot agree on child support, then the father must establish paternity by other means.

The most direct route to establishing paternity, other than by agreement of the parties, is through DNA testing. If paternity is disputed, then the father can request DNA testing. DNA testing is generally at the costs of the father, subject to reallocation in some circumstances.

Once paternity is established, child custody and time-sharing can be difficult to address. This is particularly the case where no relationship exists between the child and the father and the mother was resistant to a finding of paternity. Child custody and time-sharing will always be based upon the best interests of the child. As result, the transition toward a normal time-sharing plan can be very slow. In some cases, where the child is older, there may never be significant time-sharing. However, in most cases, the Court will transition toward normal time-sharing as quickly as possible in order to encourage the father child relationship.

Once paternity is established, the father will have some paternal rights. The extent of those rights will be dependent upon the circumstances of each case. As with many family law issues, the progress may be slow and bumpy. The progress and outcome is fact specific and entirely dependent upon the situation of the parents and the child.

Collins & Collins, P.C.
Albuquerque Attorneys

When New Mexico parents divorce or separate and a court action is filed regarding child custody, one of the final documents (also called pleadings) filed with the court is called a Parenting Plan. The Parenting Plan provides details about legal custody for the child, as well as physical custody or timesharing. It should also include a child support worksheet and should address which parent will pay the ongoing cost of health insurance for the children.

New Mexico law imposes a duty on both parents to support their children and part of that support is providing health insurance coverage for their children when it is available. The New Mexico Child Support Guidelines are used to calculate child support and require that a parent providing health insurance coverage for the children be given credit for the monthly insurance premiums paid.

Other issues regarding health insurance for the children may arise if neither parent has affordable insurance available to them through work, or when an insurance plan is refusing to cover children when they do not live with the insured parent full-time. These issues may need to be addressed by the court. However, no matter how the final decision as to ongoing health insurance for the children is reached, the Parenting Plan should clearly identify which parent is paying and provide for an exchange of information regarding coverage. An experienced divorce and family law attorney can ensure that the health insurance issue is properly addressed by the court and included in the Parenting Plan.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, one of the final documents (also called pleadings) filed with the court to complete a divorce is called a Marital Settlement Agreement, or MSA for short. An MSA should provide details as to the final division of the parties' property and debt, which may be the result of a settlement agreement between the parties or the order of the court.

The MSA does more than just assign debts and assets to the parties, it may also provide instructions as to how those debts and assets will be exchanged and protected. Health insurance is one asset to a marriage that may be addressed in an MSA. Generally, if one party to the divorce is providing health insurance for the family pursuant to his or her employment, he or she is not obligated to continue to provide health insurance for their former spouse, although they may be required to continue to provide coverage for their children. In fact,many insurance carriers will not allow continuation of coverage on the same policy for an former spouse.

However, some health insurance policies may allow the divorcing spouse to remain covered as long as they begin paying their own insurance premiums after the divorce. Also, parties can agree that one spouse will continue to pay the health insurance premiums for the divorcing spouse as a form of spousal support. The issue of health insurance coverage after a divorce is complicated because the coverage available will often depend on the terms of the policy in place at the time of the divorce and those terms can vary widely from policy to policy.

Parties to a divorce should consult an experienced divorce attorney who can counsel them as to the law regarding health insurance and can conduct proper discovery in order to explore the terms of the parties' policy. An attorney should also ensure that whatever agreement is reached regarding ongoing health insurance for the parties is properly included in the MSA.

Collins & Collins, P.C.
Albuquerque Attorneys

Given the rising cost of health care, a major concern for couples involved in a divorce is the question of continuing health insurance coverage during and after a divorce.

In New Mexico, when a petition for dissolution of marriage is filed, which begins the divorce process, the courts generally enter a Temporary Domestic Order ("TDO"). The TDO binds both parties and prohibits them from making major changes to the parties' financial status and prevents both parties from cancelling insurance coverage for their spouse or children.

Although the TDO requires that health insurance coverage be maintained while a divorce is pending, after the divorce is complete the district courts generally do not have jurisdiction to require that one spouse continue to provide insurance coverage for the other. Further, most insurance companies that provide coverage to employee's spouses will not allow that coverage to continue after a divorce and the district courts cannot force those companies to do so. Occasionally, a health insurance company will allow continued coverage after parties obtain a legal separation, which is one reason why some people seek legal separation rather than a divorce.

In contrast, the New Mexico child support guidelines require parents to provide health insurance coverage to their children after a divorce, if health insurance is available to the parents. However, which parent is required to provide the coverage can depend on a variety of factors including the cost to each parent.

Anyone involved in a divorce in which a party has cancelled health insurance coverage in violation of the TDO should immediately consult an an experienced divorce attorney about how to enforce the TDO. Similarly, anyone in involved in a child support dispute should consult an attorney to discuss their rights and responsibilities with respect to health insurance coverage for their children.

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of general guidelines regarding New Mexico child support. Here are 10 that every parent should understand.

1. New Mexico law provides that both parents have a duty to support their children.

2. Child Support in New Mexico is regulated by a statue known as the New Mexico Child Support Guidelines.

3. Child support is calculated based on the number of children, the amount of time the children spend with each parent, the gross incomes of both parents, work-related child care expenses and the cost of medical care for the children.

4. Child support is calculated in the same manner for both divorce and paternity cases.

5. Parents can be required to pay child support to a third party if that person is caring for their child, for instance when a guardian for the child is appointed under the Kinship Guardianship statute.

6. The obligation to pay child support continues from birth until a child turns 18, or until that child turns 19 if he or she is still in high school.

7. The child support obligation can also end if a child becomes emancipated by some other means, for instance by getting married, joining the military or by court order pursuant to the Emancipation of Minors Act, no longer have to pay child support.

8. Even after they turn 18, adult children can file an action against a parent to collect child support that should have been paid by a parent while the child was a minor.

9. Parents cannot waive the right to child support. The right to child support belongs to the child. It is the custodial parent's duty to pursue collection of support on behalf of their minor children.

10. The Child Support Enforcement Division of the New Mexico Department of Human Services is charged with establishing and enforcing child support for children in New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody after legal separation or divorce can be one of the most highly contentious and stressful issues parents face. Time-sharing with the child or children to maintain a relationship with both parents is of paramount concern. In situations where parents have been given shared physical custody, otherwise known as joint child custody, it may not be as simple as splitting the time in half.

New Mexico courts often discourage 50/50 custody schedules, as children may have difficulty with the transitions involved every few days. Young children are especially vulnerable to the stress involved in frequent change. But, even older kids may have difficulty handling the disruptions to their academic, extracurricular and social lives.

If a 50/50 custody schedule is granted, New Mexico courts will still take into account the best interests of the child when considering how this time will be allocated. In fact, several factors may be considered before the final schedule is agreed upon. These factors may include the child's age, the child's relationship with each parent, the distance between each parent's home, the parents' work schedules and even the child's schedule of school, sports and other extracurricular activities.

Communication between parents is one of the keys to a successful 50/50 custody schedule. Good communication will help avoid interruptions in routine, thereby creating stability for the children, and the parents. It will also help with staying on top of appointments, schoolwork and activities. Consequently, this type of arrangement may not be appropriate in situations where there is a lot of conflict between parents. Nor would this schedule work well for parents who live a great distance from each other.

Remaining mindful of the impact of transitions, considering the best interests of the child, and keeping the lines of communication open are all important things to consider when developing a 50/50 custody schedule. After all, it isn't just time spent; it's time spent well. And time well spend it good for the children and the parents alike.

Collins & Collins, P.C.
Albuquerque Attorneys

Both the New Mexico family law statutes and the relevant case law impose a duty on all parents to provide financial support for their children. This issue most commonly arises when parents divorce or separate and one parent must pay the other monthly child support.

However, the issue can come up in other situations as well. For instance, child support often arises in the guardianship setting. Parents may be and often are required to pay a third party guardian or custodian child support if that person is caring for their child. This will most commonly arise in a situation when someone is appointed as a guardian for a child pursuant to the Kinship Guardianship statute. It can also arise when party other than a biological parent is granted custody by the state after the Department of Children Youth and Families determines that the parents are unable or unwilling to care for their child.

The monthly child support amount is calculated according to the New Mexico Child Support Guidelines. That support continues until the child is 18, until they are 19 if they are still in high school or until the child becomes emancipated by some other means, i.e. by getting married or joining the military. It is a simple mathematical calculation based purely on the income of the parties, health and dental premiums and child care. On some occasions, other factors may be considered.

Because child support is required by law and it is a fairly straightforward calculation,it is rare that a parent will get off the hook for child support. One exception was recently set forth by the New Mexico courts providing that parents no longer have to pay child support for a child who becomes emancipated before they turn 18, by either marriage, military service or by court order pursuant to the Emancipation of Minors Act.

Though child support is a simple mathematical computation, the calculation of support is often fraught with contention. After all, the end result is entirely dependent upon the numbers going into the equation. These numbers, such as the parties income, are often hotly contested and it generally advisable to have the assistance of an experienced child support attorney if determining the proper figures to plug into the formula.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many time arrangements to consider when developing a joint child custody schedule in New Mexico. If the parents can agree, the parenting plan, and custody and time-sharing arrangements therein, are left up to them.

One of the most predictable and straightforward is an alternating week schedule. This involves the child remaining with one parent for 7 days, then switching to the care of the other parent for 7 days. Each parent spends an entire week at a time with the child, creating more consistency and less frequency in transition. This arrangement is generally more appropriate for older children.

Such an arrangement may not be best when younger children are involved, as it leaves large gaps of time between visits. To fill these gaps, the noncustodial parent may request extra visitation. But this arrangement also lacks flexibility, as it is difficult to attend regularly scheduled activities during the week of the other parent. Lastly, this schedule may exclude a parent from spending certain holidays with their child.

A more flexible time arrangement could involve a 3-4-4-3 schedule, which would allow each parent opportunity for regularly scheduled events each week. In addition, the child would not go longer than 4 days between visits. The child is in the care of one parent 3 days one week, then 4 days the next. The other parent would have the child 4 days one week, then 3 days the next.

This schedule also has some downsides, as it includes more transitions than other arrangements. Children may have difficulty remembering where they will be staying from day to day. Frequent exchanges may also increase the possibility of conflict between parents, particularly if there are delays in picking up or dropping off the child.

Frequent transitions of the child from home to home can be very stressful on the child and the parents. There are many possible time-sharing arrangements. There is even the possibility of alternating school semesters and though this would be a rare arrangement.

Assuming the parents can agree, it is entirely up to the parents. If the parents cannot agree, then the courts will decide based upon the best interests of the child. Judges are very sensitive to constant disruption of the child's routines. Judges will be protective of the children so that exchanges of the child will be minimized when there is significant conflict between the parents.

There are many factors to consider when apportioning time between parents and their children in a joint child custody situation. The most successful schedules will take into account transition frequency, visitation gaps and flexibility as it relates to their situation. Parents would do well to decide these issues on their own. Leaving these decisions to the court rarely ends in an outcome to the liking of either parent.

Collins & Collins, P.C.
Albuquerque Attorneys

There is a perception that when a divorce or other contested child custody situation, the children involved can automatically decide which parent they would like to live with if they are 14 years or older. This perception may not be entirely accurate, as the court will take into account many factors beyond the desires of the child.

In some cases, a judge may not be particularly persuaded by the desires of a child older than 14 due to immaturity, the fitness of the parents, the environment of the child's desired home and numerous other factors depending upon the situation. Likewise, the family court judge may consider the desires of a child younger than 14 based upon many of the same factors.

There are many reasons why this issue is not clear cut. To begin with, New Mexico courts are guided by a "best interests of the child" standard when evaluating child custody. While the goal of this standard is to provide for the child's needs in the best way possible, this standard is somewhat ambiguous and thus subject to varying interpretations.

Typically under the "best interests" standard, the judge considers the child's age, the relationship he or she has with both parents, the living conditions of both parents, the willingness of both parents to support a relationship with the child and the other parent, the relationship that each parent had with the child before the divorce, the fitness of the respective parents and finally the child's preferences.

More weight may be given to a child who demonstrates more maturity, but this is not guaranteed. Instead, a judge may examine the reasoning behind the child's desires, as in an instance where a child speaks of how much they are needed by one parent. Custody would certainly be challenged if the child appears to be more of a parent than the parent requesting custody. They may also call into question situations where the child has been promised certain gifts or rewards for choosing one parent over another, or where the child may prefer the parent who makes more money.

Perhaps most common of all, a teenage child may prefer the household with the least supervision and the most freedom. The courts are very reluctant to place a child in an unsupervised setting despite the attraction that this may hold for teenage child.

Ultimately, even the most articulate and perceptive child is still considered a minor by law. They cannot make legally binding decisions. So, while the courts may consider the wishes of children in child custody cases, it will probably not be the deciding factor. The courts simply will not rely entirely on a child to decide what is or is not in the child's best interests.

Collins & Collins, P.C.
Albuquerque Attorneys

Most teenagers want to be treated like adults long before they reach the legal age of majority, which in New Mexico is eighteen (18). However, in some circumstances, a minor may become emancipated before they turn eighteen (18), which means that in the eyes of the law the child is now an adult.

In New Mexico, minors can become emancipated once they reach the age of sixteen and meets one of the following criteria: 1) he or she has entered into a valid marriage; 2) he or she is on active duty in the armed forces; or 3) he or she has been declared emancipated by a court in accordance with the Emancipation of Minors Act ("EMA").

Generally, a person must be eighteen (18) years old before they can obtain a marriage license in New Mexico, although they can be sixteen (16) with parental consent or younger with an order from the Children's Court. Similarly, a person must be eighteen (18) to enlist in the military or may be seventeen (17) if they have parental consent.

The rules regarding emancipation by marriage or military service are fairly straight forward. However, the EMA is not as clear. Instead it requires that a minor seeking emancipation be willingly living separate and apart from his or her parents or guardian, that the child is managing his or her own financial affairs and that the Court finds that emancipation is in the child's best interest.

As is true with many issues in family law, what is in a child's best interest can vary depending on who you ask, although what really matters in the end is what the Court determines to be in the child's best interest. Given the Court's discretion to determine the best interest of the child in EMA cases, it is important for any person involved in an emancipation case to consult a family law attorney to help guide them through the complicated issue of emancipation under the statute.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico statute governing the dissolution of marriage (divorce) lists four reasons that can be given to the court as grounds for divorce: 1) incompatibility; 2) cruel and inhuman treatment; 3) adultery; and, 4) abandonment.

Practically speaking, the vast majority of divorces in New Mexico are granted on the basis of incompatibility, which is known as a "no-fault" divorce. The policy of no-fault divorce has been a part of New Mexico law for more than sixty years and is so strongly favored by the courts that the other three grounds are rarely used anymore.

Even if one of those grounds is used as a basis for a divorce petition, the court will often not investigate that claim. Instead the court will recognize that the parties are incompatible and move on to the parties' debts and assets and addressing issues of custody and support.

This means that parties to a divorce in New Mexico will generally not have to spend time (and the associated attorney's fees and costs) proving that the other party committed adultery, behaved cruelly or is otherwise a bad person because the courts will deem that information irrelevant.

Often the no-fault policy can be hard for parties to a divorce to accept. This is especially so in cases where there has been adultery or cruel treatment by a spouse during the marriage. There is no shortage of animosity associated with financial affairs as well. Far too often, parties go into the divorce with the intention and the need to prove the other party is at fault. Sometimes, they simply will not be content until they have shown the court that the other party is simply a bad person.

In fact, the spouse may be a bad person guilty of all kinds of bad and sometimes atrocious behavior. Unfortunately, this behavior is with rare exceptions irrelevant to the divorce and the division of property and debt. It may or may not be relevant to child custody and time-sharing. Even when it is not, there are many occasions when the battlefront is shifted to the children. Child custody and time-sharing disputes will often to the great detriment of the parties, and especially the children, serve purely to punish the other spouse for the misdeeds during the marriage.

Consulting with an experienced divorce attorney can help parties focus on the relevant facts and applicable law, so that they can get through the divorce process efficiently and get on with their lives. In the absence of domestic violence, domestic abuse, child abuse, or child neglect, battles for moral superiority have no place in a divorce action. No-fault divorce has grown over time with the knowledge that the fault based divorces were often devastating to the parties and the children. The courts of New Mexico have made clear that allegations of fault will no longer be entertained.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico parents involved in a divorce or child custody dispute should pay attention to the results of a recent study from the University of Toronto. The study shows the long term affects that divorce can have on children.

The research, which was published by the Journal Psychiatry Research, showed that adults from divorced families were more likely to have had suicidal thoughts at some point in their lives than those from non-divorced families. The results showed that men from divorced families were more likely to experience suicidal thoughts than women.

The study further found that factors such as physical abuse, emotional abuse, parental unemployment and parental addiction could also influence the occurrence of suicidal thoughts.

Many of these issues are commonly present in New Mexico divorces. Parents should be aware of these risk factors. When they are present, they should be even more vigilant in protecting the children from the effects of divorce. Some of the risk factors may be difficult to avoid such as unemployment. The others are either within the control of the parents or a phone call away from help in dealing with these issues.

Obviously, this study shouldn't cause all parents contemplating divorce, or who are already divorced, to panic. However, it should remind all parents that their focus during a divorce or custody dispute should be on their children and protecting their children's best interests.

The New Mexico courts will often order the parties in domestic relations cases to participate in counseling or co-parenting classes, but that may not be enough. A counselor cannot monitor parents 24 hours a day. Neither can the Courts. It is up to the parents to minimize the negative effects divorce will have on the children.

Keep in mind that even the most amicable divorce leaves lasting scars on a child. Just imagine what a high conflict divorce and child custody action will do to a child. Both actions and words have lasting consequences. This is never more true than in a divorce action.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys