Albuquerque Divorce Lawyer Blog

It is often said that divorce is hardest on the children, who are faced with wondering why their parents split up, possibly feeling guilty for their perceived role in that separation and often having to get used to a new place to live. In New Mexico, the term child custody is a complicated concept; it refers not only to which parent has physical possession of the child, but also which parent has the power to make to make decisions about the children's lives. Physical custody is generally described in terms of time-sharing and periods of responsibility, or visitation, all of which are most often delineated in a document called a Parenting Plan.

The law in New Mexico presumes that joint physical and legal custody is in a child's best interest because a child is better off having two parents activity involved in his or her life. However, the preference for joint custody does not mean that the baseline presumption for a Parenting Plan is that each parent has the child with them exactly fifty percent of the time.

As a preliminary matter, Parenting Plans need to be age-appropriate. For example, a fifteen-year-old may be able to handle being away from one parent for weeks at a time, whereas an infant may not. Thus, the periods of responsibility, or timesharing, will depend on the age and emotional stability of each child.

In evaluating a time-sharing schedule the Court may consider, among other things: the wishes of each parent; and the wishes of the child. In making its decision, the Court will also consider the child's relationship with each parent and any siblings; the child's ties to their school and their community; and, the mental and physical health of everyone involved in the child's life.

If the child is over the age of 14, the Court and the parents must consider his or her wishes. Although the Court does not have to agree with the child, the Court will usually defer to the child's wishes unless those wishes are manifestly harmful to the child. The plain fact is that few parents can enforce their will over a teenager, the Court most certainly cannot. The Court understands this and will not even try due to the many possible harms such forced decisions may raise.

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Mediation is a relatively informal process in which a neutral third party facilitates communication between the parties to a divorce action or custody dispute, the goal being that the parties will resolve their issues themselves rather than having a judge decide those issues for them. A mediation is also often called a settlement facilitation and in several judicial districts around New Mexico, including the Second Judicial District in Albuquerque, there are services associated with the courts that can provide a mediation/settlement facilitation for little or no cost to the parties.

Often in a very contentious or complicated cases, the judge will order the parties to mediation/settlement facilitation in order to see if they can make some headway toward resolving their issues outside the Court. The mediation process is confidential and the rules of civil procedure prevent offers made during mediation from being used as evidence before the Court. Therefore, meditation/settlement facilitation can allow parties to freely discuss possible resolutions of their issues.

Child Custody Mediation is provided year-round at low to no cost depending on the income of the parties through the Court Clinic in Albuquerque's Second Judicial District Court. Settlement facilitation is broader in scope that child custody mediation. Settlement facilitation addresses all aspects of the divorce including the division of property and debt, the division of retirement accounts, the division of the community residence, and alimony, child support, and child custody. Divorce, custody and family law settlement facilitation is provided for free to the parties once per year during Settlement Week at the Second Judicial District Courthouse.

Parties can also arrange for their own mediation; most judicial districts around the state can provide a list of mediators in the area. The people, who act as mediators do not have to be attorneys, but they should be trained in the mediation process and, for maximum effectiveness, should also be familiar with family law issues.

The product of a successful mediation is usually a written agreement. This agreement that is often hand-written will be drafted into a Martial Settlement Agreement, which will then be submitted to the Court and incorporated in the final divorce decree. Thus, while parties do not have to be represented by counsel during the mediation process, a party should strongly consider having an attorney present because the decisions made at a mediation/settlement facilitation can have a serious impact on the property and custody rights at issue in a divorce proceeding.

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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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When a child is born in New Mexico during a marriage, or within 300 days of the dissolution of a marriage, the law in New Mexico will presume that the child is the child of the parties to the marriage. When a child is born outside of a marriage, the law only presumes that the mother is the parent of the child. A father can establish his paternity by: signing an acknowledgment of paternity form, which is available from the New Mexico Department of Health and Vital Statistics; by genetic testing; or by a pattern of behavior in which the alleged father holds himself out to be the child's father by doing things like paying child support and exercising visitation.

Both the mother and father of a child have a right to bring an action asking the Court to determine paternity for a child and determine child support, which is called a parentage suit. Either party may dispute paternity by filing a Motion for a DNA test for proof of paternity.

Establishment of paternity can be a serious issue because the state of New Mexico provides that the parents of a child are equally responsible for supporting and caring for that child. Similarly, each parent has a right to raise their child as they see fit, with certain parameters set by the state in order to protect the welfare of the child.

Thus, a parentage action does more than create a child support obligation it can lead to the entry of a parenting plan establishing custody and visitation. Further, the state itself can bring a parentage suit to establish paternity of a child and seek reimbursement of state assistance provided to that child. This is not uncommon where the mother has been receiving assistance from the State. Child Support Enforcement Division (CSED) will initiate an action in these cases to provide support for the child and more importantly for the State to reduce the financial burden of raising the child on the State on New Mexico. IN this case. CSED will go after both future support as well as back child support arrearages.

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In New Mexico, the divorce process begins with the filing of a Petition for Dissolution of Marriage with the District Court of the County where one or both spouses have lived for at least six months prior to that filing. In order for the Courts of New Mexico to have jurisdiction over the case, one of parties must have lived in the State for at least six months.

While there are multiple grounds on which the Court can grant a divorce, New Mexico has what is often referred to as a "no fault" divorce policy, which means that the Court will grant a divorce based solely on the incompatibility of spouses. The vast majority of divorces in New Mexico are granted on the basis of incompatibility.

The Petition is a basic document, in which one spouse requests the Court enter an order dissolving the marriage. The Petition must include the following information: the date of the marriage; the names and ages of any children born to the marriage; and the date of the separation of the spouses. Primarily, the Petition also asks the Court to: divide and distribute the spouses' community property and community debt; identify and award any separate property and separate debt; determine child custody of any children born the marriage; determine child support for those children; and, award spousal support, also called alimony, if appropriate.

In most cases, after the filing of the Petition begins the process, the other major documents left to be filed with the Court are called: the Marital Settlement Agreement, often referred to as an MSA; the Parenting Plan; and, the Final Decree. The MSA is a detailed agreement that identifies and divides the community property and debt of the parties. The Parenting Plan, which is often incorporated into the MSA, specifically outlines custody and visitation arrangements for any children born to the marriage and will include a Child Support Worksheet explaining how child support will be paid between the spouses. The Final Decree is the final order of the Court adopting the contents of the MSA and Parenting Plan and granting the spouses a divorce.

Of course, in a complicated and/or contentious divorce there can be countless other documents filed with the Court as the spouses try to settle the issues division of property and debt, alimony, child custody and child support. There may be many other issues along the way such as domestic violence and orders of protection.

However, every divorce action will begin with a Petition for Dissolution of Marriage and end with some final order of dissolution of the marriage. There are many possible roads from one point to the other. The shortest and least contentious route is generally the best for the parties, the children and if that is not enough, the parties' money.

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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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Unfortunately, prior to or during a divorce or custody action, one of the parents will sometimes relocate with the children to another state, often leaving without obtaining the permission of the other parent. Whether a parent leaves New Mexico for another state or the parent relocates to New Mexico with one of the children, the innocent parent needs to understand their rights, which largely are dependent upon which state's courts have jurisdiction over the children to the marriage or relationship.

Jurisdiction generally describes a court's power to decide a case or issue. A court cannot decide a case when it does not have jurisdiction over the people involved in that case and the subject matter of the case. State courts generally have the power to decide family law issues such as divorce, property division, child custody, and child support. It is important to remember that custody refers to more than just the physical location of the children and their visitation with the other parent, it includes decision-making power over issues such as where the children go to school, the children's religious practices, important medical decisions concerning the children, and even what extracurricular activities the children will participate in.

In New Mexico and most other states, the courts do not gain jurisdiction over the issue of child custody until the child has legally resided in the state for a period of six months or more. The phrase "legally resided" means that the child has not been brought to New Mexico or removed from New Mexico in violation of an existing Court Order or in violation of the other parent's rights. Thus, the second state to which the children have been relocated, whether it is New Mexico or another state will not have jurisdiction over the issue of child custody until the child has lived in the new state for six months. The state from which the children were removed will retain jurisdiction during this six month interim period.

In the absence of jurisdiction, any court actions filed in the new state should be dismissed for lack of jurisdiction. The only pleading you should file in the new State is a Motion to Dismiss for Lack of Jurisdiction. You should file no other pleadings and avoid asking the court for any other relief. Filing of other motions or enlisting the assistance of the Court in enforcing other matters may be construed as consent to the Court's jurisdiction. Unless this is your intention, then you need to be very careful in responding to any actions filed in the new state.

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So what should you do if your spouse leaves the state with your children? If the children have been removed from New Mexico, you should immediately file an action in District Court of the New Mexico County in which the children most recently lived. If the children have been relocated to New Mexico from another state, then you should file an action in your home state as soon as possible in order to avoid allowing the New Mexico Court to gain jurisdiction over the custody of the children.

Filing an action immediately will ensure that jurisdiction remains in the children's home state, and not the state to which they have been wrongfully relocated. In most cases absent emergency circumstances, the Court will order that the children be returned home. This will depend on the circumstances surrounding the relocation of the children, but in any event acting quickly is essential to preventing jurisdiction attaching in the other state.

Jurisdiction can be very important to child custody matters. Having child custody litigated in a state other than your home state and the home state of the children can have serious and negative consequences. The costs of litigation will go up tremendously due to travel. In addition, many witnesses including teachers, counselors, coaches, grandparents, and others close to the children will be prohibited from involvement in the case due to distance.

Unfortunately, many opportunistic parents understand this and seek to move jurisdiction far from your home and the home of those closest to the children. What often happens in these cases is that the parent, whose children have been wrongfully relocated, will file an action in the second state in an effort to get the children returned. However, filing an action in the second state can be construed by the courts of the second state as your consent to their jurisdiction.

Unless you want to litigate your child custody issues in the in the second state, then you should avoid filing anything in the second state and immediately seek relief in the Court of your home state. Just like many of the issues that can come up in a divorce, a potential transfer of jurisdiction can have very negative consequences for you and your children. If you are facing this situation, you should contact an attorney immediately.

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