Albuquerque Divorce Lawyer Blog

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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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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Non-compliance with court ordered child support is all too common in New Mexico family law cases. Many times, the non-custodial parent simply refuses to pay child support. Just as frequently, particularly in the current economy, the non-custodial parent is unable to pay court ordered child support.

When a non-custodial parent is unwilling or unable to pay child support, it can create a very difficult financial situation for the custodial parent. Not surprisingly, as the economy worsens, the number of custodial parents who are not receiving support increases as shown by the ever-growing caseload of the New Mexico Child Support Enforcement Division ("CSED").

Given that child support is mandatory under the New Mexico Child Support Guidelines set forth in the child support statute, NMSA 40-4-11.1, it would seem that the enforcement of child support would be relatively straightforward. In theory, the delinquent parent will be made to pay arrearages on unpaid child support and ordered to pay ongoing support. The Court even has the power to charge the delinquent with contempt and have that parent arrested, although such arrests are rare.

However, the practical problem with enforcement of a child support order is that the amount of court ordered child support is often relatively low in comparison to the cost of paying an attorney to enforce the child support order. Thus, a custodial parent who is not receiving support should carefully weigh the possible attorney fees associated with enforcement of a child support order versus their potential recovery. It may be that it is best to pursue the matter without the assistance of an attorney.

All parents looking to enforce a child support order should consult with the New Mexico Child Support Enforcement Division prior to filing a motion to enforce support. While CSED may be slow to get started on a case because of its very large caseload, once CSED gets moving on an enforcement case they are extremely effective.

To get started, the custodial parent should open a file with CSED. Once the file is open, the party can file a Motion to Enforce Child Support requesting the Court make CSED a party to the action. Once the court makes CSED a party, CSED will be present at all subsequent child support hearings. The presence and assistance of CSED at the hearing will go a long way toward have the matter fairly and promptly resolved by the court.

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