Albuquerque Divorce Lawyer Blog

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 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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Unfortunately, there comes a time in the lives of many adults when they are impaired to the point where they can no longer make decisions for themselves. This impairment can be the result of mental illness, physical disability or drug and alcohol abuse. In such situations, the New Mexico Probate Code Adult Guardianship provisions allows for the appointment of a guardian and/or a conservator to make important decisions for the impaired person. A guardian makes personal and health care decisions for the impaired person, which a conservator makes decisions related to the financial affairs and property of the impaired person.

Any person over the age of eighteen, or properly registered corporation, may serve as a guardian or conservator and the same person or entity does not have to serve as both guardian and conservator. For instance, often the spouse of an incapacitated person will be appointed as their guardian, but a bank will be appointed as conservator. Every guardian and conservator must be appointed to serve by the District Court.

While any party interested in the estate, affairs or welfare of an incapacitated person may file a petition to be appointed as guardian or conservator, the process is very complicated. The courts take these appointments very seriously because by appointing a guardian or conservator, the court is essentially taking away the fundamental right of the impaired person to make decisions for themselves. The incapacitated person and certain family members must be given notice of the appointment proceeding and the court will appoint a guardian ad litem to represent and protect he incapacitated person.

The court will also appoint a court visitor, which is usually a health care professional or social worker, and a qualified health care professional to evaluate whether or not the person is actually incapacitated to the extent that a guardian or conservator is necessary.

To further complicate things, a guardian or conservator can also be given limited guardianship authority, if the court believes that the person is only partially incapacitated and is still capable of making some decisions for his or herself. Given the wide variety of issues involved in the appointment of a guardian or conservator, it is a good idea to consult an attorney about the process if you believe that family member or loved one is in need of such supervision.

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