Albuquerque Divorce Lawyer Blog

During the past few decades, there have been numerous advances in medical research regarding fertility. These advances are often a blessing for people who have been unable to have children, but they can also create complications for the family law courts. For example, can sperm donors be required to pay child support for the children created by their donation? The New Mexico courts have examined this very issue and the answer they have arrived at is perhaps yes, perhaps no, but always maybe.

Generally, the biological parents of a child are responsible for supporting that child. This obligation extends to biological fathers regardless of whether or not the father was ever married to the child's mother and regardless of whether or not he intended to conceive a child with the mother. The New Mexico court of appeals has ruled that when a woman is artificially inseminated by a licensed physician with the sperm of an anonymous donor, that donor will not be obligated to pay child support even though he is the biological father of the woman's child because such a case does not result in a true parent-child relationship.

However, the issue of sperm donor responsibility becomes substantially more complicated when parties privately conduct artificial insemination without the assistance of a doctor, or through a sexual encounter, with the understanding that the father is acting only as a sperm donor. Even when the parties agree in writing that the father is acting as a sperm donor and will not be obligated to pay child support, the court may find that the father/sperm donor is required to pay support if he engages in conduct that creates a parent-child relationship. A sperm donor may become a father when he acts like a father. This conduct can include things like acknowledging that he is the child's father. It can also include regular contact with the child. A regular visitation schedule will almost certainly result in a finding of paternity with consequent child support obligations. Any form of child custody would clearly indicate paternity and child support. Other acts by the sperm donor that create a father-child relationship may also result in finding by the court. The court will often look to the expectations of the child. As with all matters involving children in family court, it is the best interests of the child that are conclusive.

Thus, very simple acts, when taken together over time, can create a parent-child relationship in the eyes of the court. This is the case even when this may not have been the intention of the mother or the father. As such, anyone considering sperm donation, whether anonymous or not, should consult an attorney in order to fully understand the rights and responsibilities that come with such a donation. Then all behavior toward the child in the future should be consistent with the sperm donor's intentions.

Sarah Armstrong
Albuquerque Attorney
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Sadly, there are often times when neither of a child's parents is able to care for the child. In such cases, a third-party, who may or may not be a family member, may petition the Court for child custody of the Child. In New Mexico, there are five different ways in which a third-party child custody may be awarded.

The first three ways by which a third-party may gain child custody over a child are pretty straightforward. First, the court may grant child custody to a third-party as part of a divorce proceeding if the court determines that neither parent is capable of caring for the child and the third-party properly intervenes in that divorce proceeding. Second, under the probate code, the court may grant custody to a third-party when the child's parent or guardian dies. Third, the court may grant custody to a third-party as the result of finding of abuse and neglect by the child's parents or current guardian. Abuse and neglect proceedings are generally initiated by the Department of Children Youth and Families, but they can be initiated by the third-party seeking custody.

Fourth, the third-party seeking custody can file a petition under the Kinship Guardianship Act, which typically applies when a child has lived with the third-party for more than ninety (90) days prior to the filing of a petition. However, custody can also be granted under the Kinship Guardianship Act even if the child hasn't lived with the third-party for ninety (90) days, if the child's parents are unwilling or unable to care for the child and there are extraordinary circumstances. In fact, a third-party can be granted custody of a child is when extraordinary circumstances exist, even without a Kinship Guardianship petition, and there is no other remedy available under the law, which is the fifth way for a third-party to obtain custody.

In all of the situations referenced above, the court will only grant custody to a third-party if that custody award is in the child's best interest. The person seeking custody will often have the burden of proving to the court that they are the best person to care for a child, which can be a very complicated process. Thus, it is very important for a person seeking custody to consult an attorney before undertaking such an action.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

When the parents cannot agree on a child custody time-sharing arrangement between themselves, there are court resources available to help assist them in establishing a parenting plan. For contested child custody cases in Albuquerque, the parties will generally be referred to Second Judicial District Court Family Court Clinic. The courts in Santa Fe, Rio Rancho, and many other judicial districts across New Mexico have similar court-sponsored family court programs that are the first step in determination of a parenting plan.

Upon referral to Court Clinic or other family court services, the parties still have control over their case. The first step in the process is non-binding mediation. Child custody and time-sharing mediation brings the parties together with a professional mediator with the goal of reaching an agreement acceptable to both parties. It is a non-binding process meaning that the parties do not have to reach an agreement. They can choose to move forward with the Court Clinic process.

When mediation doesn't lead to an agreement, the Court may then order a full child custody evaluation through Court Clinic. A custody evaluation through Court Clinic involves trained mental health and custody professionals who meet with the parents, the child and any other important people in the child's life including teachers, doctors, counselors, coaches and others to assist with the custody evaluation.

The information gathered from interviews, psychological testing and any other available sources will be used to produce a list of Court Clinic recommendations for custody. The objective is to provide for the best interests of the child/children. The great majority of the time, the Court will adopt the recommendations of Court Clinic. However, either party may dispute the recommendations, which then requires that party to hire a private custody expert, referred to as a 706 Expert. This then raises a whole new set of issues.

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Relocation of one of the parents often has significant consequences for child custody and timesharing. In fact, it may result in a loss of time-sharing so it is not always an option. This is particularly so where there is an existing Parenting Plan that prohibits such a move as most parenting plans do.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion for a modification of their parenting plan and timesharing agreement as soon as they know they will be moving.

If the parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing no matter what the reason for the move.

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. As with all cases of contested custody and timesharing, if the change in the parenting plan is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult a New Mexico divorce and family law attorney if they are faced with such a potential change to custody and timesharing.

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What happens when one a parent wants to move out of state, or even to another city within New Mexico? Relocation of one of the parents often has significant consequences for child custody and timesharing.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion to modify the parenting plan and timesharing agreement as soon as they know they will be moving. A relocating parent should understand that New Mexico will maintain jurisdiction over child custody and timesharing despite the move.

If parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. Finally, if the change in the parenting plan, custody and timesharing is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult an attorney if they are faced with such a potential change to custody and timesharing.

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The essential component of a Domestic Violence Order of Protection under the New Mexico Family Violence Protection Act is the issuance of a restraining order prohibiting the restrained party from having any contact with the protected party/alleged victim. However, when the restrained party and the protected party have children together the domestic violence hearing officer can also issue short-term decisions regarding child custody, timesharing and child support. In Albuquerque, Rio Rancho and Santa Fe, the hearing officer will often refer the parties to the court clinic or family court services in order to evaluate custody and advise the court as to what is in the best interest of the children involved in the domestic violence case. The result is often a temporary parenting plan, the duration of which will depend upon the future behavior of the parties.

Albuquerque, Rio Rancho and Santa Fe each have a variety of court clinic and/or family court services for addressing child custody and time-sharing issues. These offices are staffed by trained psychologists, therapists and social workers who are often called court clinicians. The purpose of a court clinician is to help the judges and hearing officers make custody determinations by conducting an investigation into a child's living situation. This investigation, often referred to as a child custody evaluation, includes interviews of the parents, the child (if the child is old enough) and others involved in the child's daily life such as grandparents, teachers, doctors, counselors and even coaches.

Sometimes a hearing officer will ask a court clinician to appear at a hearing on an Order of Protection on very short notice for an on-call child custody evaluation. This is typically the case in custody matters related to domestic violence actions. In these situations, the hearing officer will call a recess from the hearing in order to allow the on-call clinician to speak to all of the parties present and make a child custody and timesharing recommendation that is in the child's best interest. If the on-call clinician determines that more investigation needs to be done they may ask the hearing officer to order a priority consultation which a more thorough but expedited custody evaluation. However, the on-call clinician will make interim recommendations based upon preliminary findings that will stand pending the priority consultation

A priority consultation is a more in-depth evaluation by the court clinician and will usually be held sometime after the domestic violence hearing. It may include interviewing others in the child's life not present in court at the domestic violence hearing and reviewing any relevant documentation about the parents' or the child's mental health. If the court clinician feels like still more investigation is needed, there may be a request that the hearing officer or the judge order that the parties participate in an advisory consultation, which often requires all the parties involved to undergo psychological testing and may span a period months, often many months due to the heavy caseload in the court clinic.

At the end of an on-call, priority or advisory consultation, the court clinician will make recommendations to the hearing officer or judge as to what the parties' timesharing arrangement should be. Each party has ten (10) days to object to the recommendations issued by the court clinician. If no objections are filed within the 10 day time period, the recommendations are adopted as an order of the Court.

A hearing on an Order of Protection can have lasting effects on a restrained party's liberty and their right to see their children, which make is extremely important that you consult an attorney if a Petition for Order of Protection is filed against you. Every case is unique and requires individual analysis to protect both your interests and the interests of your children. No matter which side you are on, it is typically inadvisable to attend these hearings without a New Mexico divorce and family law attorney.

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The law in New Mexico is very protective of parental rights. On occasions, the mother or father of a child who has been absent from the child's life for an extended period of time, many times for years, will show up wanting time-sharing with the child. On some occasions, the long lost parent will even demand custody.

In New Mexico, both parents have an ongoing right to visitation and time-sharing until the child is eighteen, even if one parent has chosen not to exercise that visitation for years. However, just because a parent has the right to time-sharing does not mean that a parent who has not had any meaningful contact with their child for months, or years, has the right to show up at your door and demand to take the child for the weekend. It certainly does not allow for a change in custody to accommodate the absent parent's whims.

The first step in such a situation is always for the parents to try to reach a parenting plan that creates a time-sharing agreement that they are both comfortable with. If the parents can't come to an agreement, then either party can petition the court for an order establishing custody and time-sharing through a parenting plan. In cases of extended absences of a parent, an agreement is frequently impossible for numerous reasons not the least of which is the resistance of the child who may not even know the newly arrived parent.

The parenting plan established by the Court will provide the details of time-sharing if any. If the parents cannot reach an agreement, the Court will enter a parenting plan, often temporary in nature, with the assistance of Family Court Clinic or a private expert custody evaluator.

In the Second Judicial District in Albuquerque, cases involving contested child custody will often be sent to Court Clinic where a number of counselors and/or psychologists will conduct a full custodial evaluation. The Court Clinic's primary role, as is the role of the Court, is to determine the best interests of the child. The court through Court Clinic recommendations may also order that the parents work with an outside therapist or appoint a guardian ad litem to help the parties devise an appropriate time-sharing schedule.

In evaluating a time-sharing schedule and parenting plan, the court will always look to the best interests of the child. In determining what is in a child's best interest, the court looks at a variety of factors, including the child's age, their relationship with both parents and the child's current living situation, which is also called the status quo. As children grow older, particularly when they reach age 12, they have more and more input into the process. Once children reach 14 years of age, the Court will except in exceptional situations defer to the child's wishes.

There are many considerations that go into the determination of time-sharing in a case like this. It may be that the newly arrived parent will get only limited time-sharing. In rare cases, the parent will get no time-sharing such as when the child has reached age 14 and simply refuses time-sharing with the long lost parent. Each case is unique requiring a great deal of time and work to achieve a result.

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In the recent case of Vescio v. Wolf, the New Mexico Court of Appeals discussed the issue of third-party child custody, which refers to a situation in which a person other than a child's mother or father seeks custody of that child. In Vescio, a child's aunt filed a petition for custody and timesharing against the child's mother and grandmother, who had been appointed the kinship guardian of the child (the child's father was not involved with the child's life or this case).

The aunt initially based her petition on alleged abuse of the child by the mother and grandmother, however, the New Mexico Children Youth and Families Department (CYFD) found the allegations of abuse to be unsubstantiated. The district court dismissed the aunt's petition because she lacked standing to seek custody under the regular child custody statutes.

In the Vescio opinion, the Court of Appeals listed five primary situations in which a third-party may be awarded child custody in New Mexico: 1) when extraordinary circumstances exist and there is no other adequate remedy available; 2) during an action for dissolution of marriage; 3) when a parent or guardian for the child dies, the court can award custody to a third-party under the Probate Code; 4) when there has been a finding of abuse and neglect by CYFD; and 5) when a third-party files a petition for custody under the Kinship Guardianship Act.

The Court of Appeals upheld the dismissal of the aunt's petition because it did not properly fall within any of the situations listed above. However, the Court ruled that the aunt would have standing to file a motion to revoke the grandmother's guardianship under the Kinship Guardianship Act.

If you are a third-party thinking about seeking custody of a child, this case illustrates that importance of consulting with an attorney in order to ensure that you use the proper body of law as a basis for your claim.

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What should you do if a family member or friend has left their child with you for an extended period of time? In New Mexico, if a child has resided with you for an extended period of time and you want to continue to care for the child, you may be able acquire guardianship over the child through New Mexico's Kinship Guardianship Act.

Though there are numerous requirements under the Act, you do not have to be a blood relative in order to file a Kinship Guardianship petition. However, if you are not a relative, or a member of the child's tribe, you will have to demonstrate that you have a significant bond with the child. The grounds for guardianship, the bonds with the child, the bests interests of the child and other considerations must be set forth clearly in the Petition for Guardianship.

The Kinship Guardianship Act is meant to address situations in which a parent has left a child with another person for more than ninety (90) days without "appropriate care, guidance or supervision." If you are appointed the legal guardian of a child, the parent's rights are temporarily suspended and transferred to you. This also means that you are responsible for caring for the child as if he or she were your own, which not only means feeding and clothing the child, but making decisions about things like medical care and education for the child too.

The New Mexico Courts will only appoint a Kinship Guardian if that appointment is in the best interest of the child. If both of the child's parents agree to appointment of a legal guardian, then they can sign a Consent of Appointment of Guardian and they can also waive the requirement that a child live with you for at least ninety days before you can file a petition for kinship guardianship. However, if one or both of the child's parents dispute the guardianship, the Court must appoint a Guardian Ad Litem to represent the child's interest.

Once guardianship has been appointed, the legal guardian has full physical custody and financial responsibility for the care of the child. The financial burdens associated with custody of a child can be significant for a guardian. As such, the guardian can petition and the court will generally award child support from one or both parents for the care of their children while the guardianship is in effect.

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A Guardian Ad Litem, often referred to as GAL, is a person appointed by the Court to represent the interests of a minor or a person who is unable to represent themselves by virtue of age or incompetence. In the case of child custody actions, the GAL is appointed to insure that the interests of the children are protected.

As in all child custody cases, the standard in New Mexico is the "best interests of the child." This is often hotly contested between the parties. In fact, if a GAL has been appointed, then the case probably has a very high level of conflict between the parties as to what is best for the children. Otherwise, there is no need for the GAL.

A GAL's job is to advocate zealously for their clients, which in this case is the children. The duty to represent the children is just as high as with any client. In high conflict child custody cases involving a GAL, the GAL can at times be overzealous often causing additional strain between the parties, and therefore on the child.

The GAL also acts as an investigative tool for the Court and, depending on the Court's order, may be charged with investigating the health care providers, teachers, coaches, counselors and others familiar with the child. As an arm of the court, what the GAL says goes. Therefore, if the parents cannot agree, the GAL decides and 9 times out of 10, the court will follow the advice of the GAL. This basically takes all the parenting decisions away from the parents where the parents cannot agree.

In New Mexico, a Judge may appoint a GAL in a wide variety of cases, including cases wherein a child has been a victim of abuse or neglect. Most often the GAL is appointed because the judge is fed up with the parties and the use of the GAL is the only option remaining for sorting out what is best for the children.

It is in your best interests and the best interests of your children to try to work with the other parent to work out a parenting plan without the intervention of a GAL. If a GAL is appointed, which we usually resist unless absolutely unavoidable, then you are in for a long, contentious, invasive and emotionally stressful ride. If that is not enough, the costs of the GAL will likely far exceed the costs of your attorney.

Do yourself, your children and your wallet a favor, work things out with the other parent. The GAL path is one you want to avoid at all costs. Once you have gone down that path, there is often very little left to salvage for you, your ex, or the children.

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New Mexico law does not give a grandparent any automatic rights to custody over their grandchild. Instead, grandparents have the privilege of visitation with their grandchildren and that visitation may only be granted under certain specific instances, which are defined by statute in NMSA § 40-9-2.

Grandparents cannot interfere with the rights of legal parents, or force visitation with grandchildren upon unwilling parents, when a family is intact. However, a grandparent may petition the court for visitation as a part of any divorce proceeding, legal separation or paternity case involving their grandchild. A grandparent may also petition for visitation in the unfortunate event that their child (who is the parent of the grandchild) dies.

Finally, a grandparent may petition for visitation when the grandchild has lived primarily with the grandparent. If the grandchild is under the age of six, the grandparent can petition for visitation if the grandchild has resided with the grandparent for a period of three or more months. If this grandchild is over the age of six, then the grandchild must reside with the grandparent for a period of six or more months in order to support a grandparent's petition for visitation.

The Court will only grant a petition for grandparent visitation if it determines that such visitation is in the best interests of the grandchild. In determining the best interest of the grandchild, the Court will apply many of the same standards it uses to decide custody between two parents and may refer the parties for mediation or evaluation, especially in the Second Judicial District in Albuquerque and other jurisdictions that have a family court clinic specifically created to evaluate custody.

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Many of the courts throughout the State of New Mexico, including the Second Judicial District Court in Albuquerque and the Thirteenth Judicial District Court in Sandoval County, have Court Clinic Services.

Court Clinic's purpose is to help parties resolve issues of child custody, time-sharing and visitation. Court clinic does not get involved in other issues related to the divorce. In fact, Court Clinic does not even have authority to address child support.

Most cases involving child custody and time-sharing disputes will be referred to Court Clinic for a custody evaluation. The parties may choose to hire a private child custody expert (706 Expert) for purposes of a private child custody evaluation. However, these private child custody evaluation experts are extremely expensive. As a result, most cases end up in Court Clinic which provides its services on a sliding fee scale based upon the income of the parties.

Once the case is referred to Court Clinic, the case will be assigned to one of the many counselors and psychologists working in the Court Clinic. In a particularly complex case, there may be more than one Court Clinician. The Court clinician will conduct a thorough investigation of the parties, the children, third parties involved in the raising of the children including grandparents, fiancés, boyfriend/girlfriends, and even roommates living in the home.

The investigation can be quite invasive. The parties and the children, if they are old enough to participate, will undergo psychological evaluations. This process may include extensive psychological testing and interviews. In cases where third parties are involved in the upbringing of the children, those parties will be tested as well.

The investigation can take months, sometimes over a year. The time required to conduct the investigation is related to the complexity of the case as well as the huge caseload of the Court Clinicians. Once the Court Clinic has concluded its investigation, it will issue Child Custody Recommendations to the Judge. These recommendations are not binding on the judge but it is very rare that the judge does not follow the recommendations of Court Clinic.

The implications are clear. You should if at all possible work out custody and visitation with the other parent. If you cannot, then you are turning your life and the lives of your children over to a complete stranger. Though the Court Clinic process is long and relatively thorough, it remains replete with errors and mistakes due to incomplete information. Indeed, how could a complete stranger ever really know everything there is to know about you, the other parent, and your children necessary to make a perfect recommendation that is in the best interests of your children?


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Child custody and time-sharing can be the most difficult and contentious part of any divorce. For most parents, the most difficult part of a divorce is not dividing the property and debt, or even issues of alimony, but rather deciding how to co-parent their children while no longer living together.

In New Mexico, the term custody is complex; it refers not only to which parent has physical possession of the children, but also which parent has the power to make the important decisions about the children's lives. This decision-making responsibility is often referred to as legal custody, which can be held solely by one parent or held jointly. This concept of legal responsibility is distinct from physical custody or time-sharing.

The preference of the New Mexico Courts is for parents to share joint legal custody, which does not mean that the parents have to agree on every aspect of their children's lives, but does require them to agree on the following issues: where the children go to school; the children's religious practice; the children's extracurricular or recreational activities; where the children live; and, medical treatment for the children.

In contrast, a parent with sole legal custody will not have to consult with the other parent about the major decisions in the children's lives. With respect to those decisions, the law in New Mexico favors maintenance of the status quo, which means that a divorce should not change the state of the children's lives with respect to these major issues, unless both parents agree to that change. Further, all custody decisions must be made in the best interest of the children. The factors used by the Court to determine what is in a child's best interest can be found in the New Mexico Statutes on Joint Custody, NMSA Section 40-4-9.

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