Albuquerque Divorce Lawyer Blog

Parenting Plans set out all the essential terms of custody, time-sharing and child support following a divorce. There are many big issues such as custody and support.

There are also smaller, though equally important, issues such as schools, religious preferences, vacations, recreational activities, school activities, and all the other issues surrounding raising a child.

This article refers to changes to these other issues. Changes to child custody and support are each deserving of their own discussions.

In any event, any one of the many terms of a Parenting Plan may need to be modified. Many parties are able to reach agreement on these changes to the Parenting Plans with little to no conflict. Other times, the Parenting Plan can be the most difficult part of the divorce.

Whether the Parenting Plan was agreed upon amicably or whether it was court ordered after heated dispute, there may come a time that the Parenting Plan needs to be modified. The way this is done will depend upon the parties and the nature of the divorce.

In those divorces where the parties can work together, modifying the Parenting Plan is as easy as drafting up the changes and submitting the new Parenting Plan to the Court for approval. Whether or not the parties should get legal assistance in this process will depend on the circumstances. If possible, it is often beneficial to have an attorney draft the document to insure that the wishes of the parties are indeed reflected in the language.

Once the new Parenting Plan is worked out, it will be submitted to the court for approval and signature. Typically, you or your lawyer will have to arrange to get the signed order from the judge's office and take it to the clerk for filing. Some, though not all judges, will require a hearing depending on the nature of the changes.

That is the best case. Unfortunately, many parties do not have a working relationship. Many more are actively hostile toward one another. Changing the Parenting Plan in these cases will require the filing of a Motion to Modify the Parenting Plan. The Motion will set forth specifically what the party wishes to change. Equally important, the Motion must set forth the reasons for this change.

In reviewing the Motion and the Response, the Court will be looking at the best interests of the child(ren). This is the most important and often the only consideration. However, other issues related to the parties themselves may be considered. Two common examples, though there are many, include financial hardship and interference with employment associated with private schools, extracurricular activities, hobbies and the like.

In short, if you are seeking to modify the Parenting Plan, seek agreement from the other party first. If that does not work, think long and hard about why you are seeking the change. The Parenting Plan may be changed, but it will not be changed without good reason in the absence of an agreement between the parties.

Filing is the easy part. Modification of the Parenting Plan is often fiercely resisted by the other party. It is far less expensive and stressful if the parties can come to some agreement, in which case a stipulated order modifying the Parenting Plan can simply be entered with the court.

Related Reading:

Important But Often Overlooked Issues to Address in a New Mexico Parenting Plan
Common Issues with New Mexico Parenting Plans
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Attorneys at Law

On September 26, 2012, the Court of Appeals of New Mexico issued its ruling in the case of State of New Mexico vs. Laura J. The Court of Appeals upheld the district court's termination of Laura J.'s parental rights, but determined that the New Mexico Department of Children Youth and Families ("CYFD") had not met its burden to attempt to place Laura J.'s child with a relative. The Court of Appeals remanded the case back to the district court and required CYFD to conduct a thorough inquiry into placement of the child with a family member who had sought custody of the child.

The case began in December, 2008, when CYFD received information that Laura J. was abusing drugs and physically neglecting her child. During CYFD's investigation, it found that the child's hands and face were dirty; he had scratches and abrasions on his hands and shins, and a rash on his buttocks. CYFD officials took the child to the hospital because he could not sit up, could not hold his head up and was not responsive. The child tested positive for opiates, had impetigo and was clearly hungry. The child was then placed in foster care.

The district court ordered CYFD to retain custody of the child and he was placed with a foster family while permanent placement was explored, which included giving Laura J. time to work on her issues so that she could potentially be reunited with the child. When Laura J. was admitted to a rehabilitation facility, the child was placed with her until she was unsuccessfully discharged at which time the child was again placed with foster parents.

Laura J. began therapy, but was erratic with attendance and her therapist did not believe she was remaining sober. By October, 2009, Laura J. was not making it to all her visits with the child, failing to take urinalyses, missing therapy appointments and missing parenting appointments. On April 21, 2011, the district court issued a final judgment terminating Laura J.'s parental rights because the causes and conditions of Laura J.'s neglect were not likely to change in the foreseeable future, even with CYFD's efforts to assist her.

The New Mexico Abuse and Neglect Act ("the Act"), 1978 NMSA § 32A- 4-1 et. seq., governs the termination of a parent's rights and subsequent placement of their child or children. A parent's rights can be terminated if the court finds clear and convincing evidence that the parent is unable to properly care for their child and that the conditions and causes of the neglect are unlikely to change in the foreseeable future. Under the Act, CYFD is charged with investigating allegations of abuse of neglect and finding placement for children when their parents are unable or unwilling to care for them. CYFD is required, whenever possible, to preserve the unity of a child's family by placing children with family members for foster care or adoption.

In Laura J., the Court of Appeals found that CYFD had made reasonable efforts to accommodate Laura J.'s emotional and addiction problems by providing referrals to services intended to help her fight her addiction and become a better parent. However, Laura J. failed to take advantage of CYFD's efforts to help her and the district court was convinced that Laura J's behavior would not change for the foreseeable future. Therefore, the Court of Appeals upheld the decision to terminate Laura J.'s parental rights.

However, the Court of Appeals found that CYFD was required to make every effort to identify any relatives of Laura J.'s child who were appropriate candidates to accept custody of the child and investigate whether any of those relatives were willing to accept custody. Laura J.'s cousin Colin had repeatedly approached CYFD asking to be considered as a custodian for the child, but CYFD did not consider placing the child with Colin. The Court of Appeals found that CYFD had not made a reasonable effort to place the child with a family member because it failed to consider Colin as a custodian for the child. The Court of Appeals went on to say that the district court has a duty to make a serious inquiry into whether CYFD has met its burden with respect to placing children with family members.

Related Reading:
Acquiring Third Party Child Custody in New Mexico
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.

Albuquerque Attorneys

Any court order addressing custody should include some sort of parenting plan. This is especially important in states like New Mexico where joint custody is preferred because a parenting plan provides an outline of how parents will make decisions about and share time with their child. A detailed and comprehensive parenting plan can also help alleviate conflict between parents and relieve the stress on a child by providing predictability. While most people remember to include the basics of raising the child in their parenting plan, like days and times for exchanges and payment of child support, there are some issues that tend to be forgotten, but that are also important.

Visitors
Parents may wish to include rules about visitors in their parenting plan. The parenting plan may simply state that the custodial parent should use proper judgment before bringing visitors into the home while the child is there. This situation puts trust in the custodial parent, without requiring them to jump through hoops to have visitors. The parenting plan may also include provisions about overnight guests and address issues concerning a parent's significant other. It is important to remember that the parenting plan should be focuses on what is in the best interest of the child and should not be used as a method to antagonize the other parent.

Extracurricular Activities
Many children are involved in extracurricular activities, which can be a great source of enrichment for the child. But they can also pose a number of questions to be answered by a parenting plan. First, some parents may not wish their child participate in certain activities; the parenting plan should name what activities are currently agreed upon and provide instructions for how parents will deal with choosing future activities. Second, the parenting plan can address how the costs of these activities are divided between parents. While some activities are fairly inexpensive, others such as playing a musical instrument or competitive sports can be very costly. Finally, depending on the relationship between parents, attendance at sporting events, concerts and other public events may need to be addressed. If the parents are unable to attend the events at the same time in a civil manner, they may need to split the events so that each can attend.

Cell Phones and Internet
One newer issue becoming more and more important is that of cell phones and internet usage. A parenting plan can address the age at which a child may have a cell phone, in what manner they may use it (for example, only in emergencies or only to call family), and how will the monthly cell phone bill will be paid. Similarly, a parenting plan can address a child's internet usage. Many parents are concerned about their child's usage of social media websites, and the parenting plan can discuss at what age the child is able to use such sites and what manner of monitoring the parents will do.

Religion
The parenting plan should address what religion, if any, the child will practice and what that practice entails. Some religious practices are very involved and can include attending services or classes multiple times per week, which can infringe on a parent's timesharing with the child. Further, when parents follow different religious practices, it can be confusing for a child and parenting plan should address how to ease that tension.

As any parent knows, there are a myriad of decisions to make in order to raise a child. Even the most thorough parenting plan cannot answer all of those questions. However, taking the time to really think about potential parenting issues and what is in a child's best interest can make a parenting plan an extremely effective tool for co-parenting. Working with an experienced family law attorney can help ensure that the parenting plan addresses as many potential issues as possible while still complying with the law.

Related Reading:
Common Issues with New Mexico Parenting Plans
The Basics of New Mexico Child Custody Jurisdiction
Custodial Interference in New Mexico Divorce & Family Law Cases

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

In a recent landmark case known as Chatterjee v. King, the New Mexico Supreme Court ruled on some very important issues involving same sex couples and their rights to establish parentage under New Mexico's Uniform Parentage Act ("the UPA") and child custody under New Mexico's Dissolution of Marriage Act.

The facts as stated in the opinion are as follows. Chatterjee and King were involved in a long-term, committed, domestic relationship during which they agreed that they wanted to have a child. With Chatterjee's full support and participation, King adopted a child from Russia. Chatterjee presented evidence to the court that she supported King and her child financially, that they all lived together as a family, and that she actively co-parented the child. After several years Chatterjee and King, chose to end their relationship, at which point Chatterjee had not adopted the child. King moved to Colorado and tried to prevent Chatterjee from having any contact at all with the child. Chatterjee then filed a petition with the district court to establish parentage and determine custody and time sharing.

In reaching its decision, the Court had to examine the question of whether or not there were sufficient facts to establish that Chatterjee was an interested party under the UPA, which would give her standing to establish parentage. In this regard the Court applied Section 40-11-5(A)(4) of the UPA, which sets the forth criteria required to establish a presumption that a man is a natural parent. The Court reasoned that like a man, it is practical for a woman to hold a child out as her own by providing emotional and financial support for the child.

The court discussed at least two important reasons for reaching this decision. First, to reach a different result could raise constitutional concerns in that the UPA would apply differently to similarly situated men and women. For example, if the court ruled that Section 40-11-5(A)(4) of the UPA applied only to men, then a man in a same sex relationship who claimed to be a natural parent based on the fact that he held the child out as his own would have standing because of his gender, while a woman in the same position would not. In other words, if the Chaterjee case had involved a same sex relationship between two men , then a man in the same position as Chatterjee would have had standing to establish parentage under the UPA, while Chatterjee would not.

Equally important is the Court's recognition of parents' obligation to support their children. The Court cited some statistics that show that in 2000 the idea of a "traditional" American family--mom, dad and two children--only applied to 23.5% of the population. For this reason, the Court concluded that it is in New Mexico's best interest that parents are identifiable in order to ensure that parents' obligation to support their children is met.

Having determined that Chatterjee had the right to establish parentage under the New Mexico UPA, the Court also concluded that she had standing to seek joint custody under the New Mexico Dissolution of Marriage Act and remanded the case back to the lower court to address the details of custody, visitation and child support.

Collins & Collins, P.C.
Albuquerque Attorneys

An unfortunate result of many divorces or child custody disputes is that children develop negative feelings toward one, or in extreme cases, both parents. These negative feelings can arise for a variety of reasons, which may or may not be the result of any intentional action by the estranged parent, but nonetheless can damage the relationship between a parent and their child. Often these negative feelings can be dealt with by simply making an effort to sit down with the child and discussing their feelings or making sure that they get a little extra TLC. However, in more serious cases, the parent-child relationship is completely broken and the child may not want to have anything to do with the estranged parent.

The New Mexico courts have long held that, generally, is in a child's best interest to have a relationship with both parents. Accordingly, in situations where a child's relationship with a parent has broken down, the courts will often look for opportunities for the parent to repair that relationship. Reunification therapy is one such opportunity and the courts may order one or both parents to participate in such therapy with their children. The goal of reunification therapy is to mend the relationship between a child and parent by identifying the stressors that caused the relationship to break down in the first place. Reunification therapy identifies the factors that led to the estrangement, and helps the child and parent work on communication, trust, and resentment issues.

Either parent can petition the court to order reunification therapy or the court may do so on its own. The court order mandating reunification therapy should discuss: the court's goals in ordering treatment; expectations of cooperation by both parents; the discretion given to the therapist to set treatment; and, who will pay the therapist's fee and expenses. The court order should also ensure that any pertinent records, medical or other, be released to the reunification therapist.

Before reunification therapy begins, it is important that all parties understand the process and implications of the treatment. For one thing, parents and children need to understand that their treatment is not confidential. The reunification therapist is often expected to report any findings, progress, or obstacles to the court.

A reunification therapist will typically meet with the parent and child individually before meeting with them together. In some cases, the estranged parent may be ordered to undergo individual therapy for any drug, anger or other issues that may be hindering their relationship with the child.

Once the parent has completed treatment and safe contact with the child is a possibility, the joint sessions may begin. Or, if it is deemed safe for the child, the estranged parent may be engaged in individual therapy while also having joint sessions with the child and the reunification therapist.

Child-parent relationships are difficult, especially when there has been an estrangement due to a divorce or abandonment. While reunification therapy may be helpful to some, it may not help others. And in some cases, such as extreme abuse or a long history of a parent refusing to comply with court orders, the court may not find that reunification is in a child's best interests.

Parents who want to repair their relationship with their child may face a long and arduous journey where they will be expected to work hard towards reconciliation; all while being supervised by the court. Working with an experienced family law attorney can help parents understand and navigate the legal system and how it intersects with world of mental health professionals and their numerous therapeutic techniques, including reunification therapy.

Related Reading:

Domestic Abusers May Seek Control through Child Custody
Custodial Interference in New Mexico Divorce & Family Law Cases
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

Imagine spending your life savings on legal expenses to regain possession of a pet after a breakup. Well, that is exactly what some are prepared to do to maintain possession or custody over the family pet. Though this may seem extreme to some. It is not for dedicated pet owners who view the pet as a family member.

Pet custody battles may become more common as the underlying circumstances are becoming much more common as pet ownership increases. According to the 2011-2012 National Pet Owners Survey, 62% of the households in the United States own a pet. Because these companion animals are often considered members of the family, deciding who their ultimate owner should be after a breakup or divorce can be quite contentious just as high conflict child custody battles often become.

While the public's view of pets has evolved beyond mere property interests, the law continues to treat animals as exactly that--no different than furniture, vehicles, or other innate objects. In the event of a breakup, the legal owner of the pet can rightfully retain possession and the other party is left with little recourse. Similarly, during a divorce, the court does not hold custody proceedings or discuss visitation for the couple's pets. Instead, pets are addressed in the property settlement.

As a community property state, New Mexico distributes a couple's marital assets equally between the two parties. While the distribution of physical property is generally straightforward, allocation of a pet can be very difficult because its value to the parties is much more than monetary, yet the "best interest" standard applied to child custody does not necessarily apply to pets.

Unless, it is clear that one party owned the pet prior to the marriage, the question over who keeps the pet can become very contentious. Unfortunately, divorces are inherently antagonistic, and a dispute over a beloved pet can act as a conduit by which all disagreement between the parties is funneled.

Recognizing the need for a more holistic approach to these difficult questions, some courts are beginning to decide pet-related issues based on principles utilized in child custody proceedings. Although still uncommon, these courts ignore the long-standing distinction and delve into largely subjective issues--asking who the primary caregiver is, who can best meet the animal's needs, who has a stronger emotional bond, etc. However, such an approach is certainly not the standard and parties to a divorce or separation should not expect all courts to devote the same time and attention to deciding which party keeps a pet as they do devote to determining child custody issues.

Once entangled in a divorce or even a breakup, deciding who gets possession of your pets will become much more complicated and emotionally charged. In order to avoid added stress, these issues should be discussed and addressed well in advance. Whether you are considering buying a pet with your significant other or want to include pet ownership terms in your prenuptial agreement, consulting an experienced family law attorney can help you explore your options. In the event that a dispute arises, a legal professional can explain the best strategies to ensure your interest in your pet are protected to the degree possible throughout the break-up.

Related Reading:
Breaking Up In New Mexico May Be Harder Than Getting a Divorce
The Hight Cost of Conflict in Divorce

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