Albuquerque Divorce Lawyer Blog

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

Child custody disputes in New Mexico can involve many special circumstances that may not commonly arise in other states. For instance, given the large Native American population in New Mexico, a number of the children caught in custody disputes may be Native American. New Mexico is home to 19 Pueblos, two Apache tribes, and a large portion of the Navajo Nation. In addition, many Native Americans live off reservation throughout the state, concentrating in Albuquerque, Farmington, and Gallup. According to the US Census Bureau, in 2010 an estimated 9.4% of New Mexico's population was American Indian. Custody disputes involving Native American children have several important implications of which all parents need to be aware.

Under New Mexico law, child custody proceedings involving Indian children are governed by the federal Indian Children Welfare Act (ICWA). Congress enacted ICWA in 1978 as a response to the overwhelming placement of Indian children in white foster homes and the perceived destruction of Indian culture. ICWA gives tribal courts exclusive jurisdiction over some cases and places procedural safeguards to ensure that if custody matters are litigated in state courts, the tribe has notice and an opportunity to participate in the determination.

Under ICWA, tribes have exclusive jurisdiction to decide custody matters concerning Indian children that reside on the reservation. If children do not reside on the reservation, the matter should be transferred to tribal court unless the tribal court declines jurisdiction or the parent objects to the transfer. When custody proceedings are held in state courts, both ICWA and New Mexico law mandate that the child's custodian and tribe be given notice of the proceedings. In state courts, ICWA places higher and different standards of evidence on proceedings involving Indian children. Furthermore, the child's custodian and the tribe may intervene at any point in the proceedings.

ICWA also gives tribal court decisions full faith and credit, meaning that any decision by a tribal court will carry the same weight as a decision from any other state court. Other requirements include preferential placement with extended family, other tribe members, and other Indian families when deciding adoption cases. ICWA also mandates safeguards for when an Indian parent wishes to relinquish parental rights, including giving the custodian and tribe notice and a mandatory court appearance where a judge explains the consequences of relinquishing rights as a parent.

In order for ICWA to apply the following circumstances must exist: (1) the proceedings must be "child custody proceedings," which include adoption, termination of parental rights (TPR), and foster care; (2) the child must be a member of a federally recognized tribe or (3) the child must be eligible to be a member of the tribe and have a biological parent who is a tribe member.

If a child custody case is transferred to a tribal court, there are several important facts that parents must be aware of. Even though it is difficult to generalize, there are a number of significant differences between state and tribal courts. For one thing, to argue a case in many tribal courts, including Navajo courts, attorneys must be specifically admitted to practice before the tribal court. Additionally, tribal court judges may or may not be attorneys themselves. Tribal court judges are often members of the tribe who are sometimes elected and at other times appointed by tribal councils. Most tribal courts follow tribal codes, which may or may not be written. Moreover, tribal courts are not bound by the decisions of US state or federal courts and follow their own precedent.

Child custody issues are complex, emotional and often highly contentious. New Mexico child custody laws are even more complex if there is a chance that the proceedings involve a Native American child. When involved in any type of child custody matter in New Mexico, it is important to consult an experienced family law attorney to help guide you through the process.

Collins & Collins, P.C.
Albuquerque Attorneys

A person cannot be made a proper party to a divorce or family law case in New Mexico unless the New Mexico courts have jurisdiction over that party.

The issue of jurisdiction can be complicated and can vary depending on whether this case involves a divorce, custody or paternity. However, once jurisdiction is properly established, an out of state party can be faced with participating in family law litigation in New Mexico, which can be a very daunting task. Situations like these commonly arise when a divorce or custody action is started in New Mexico and then one party relocates, but the other party remains in New Mexico.

No matter the circumstances, if jurisdiction is properly established in New Mexico over an out-of-state party, he or she will not be excused from a court case merely because they do not reside in New Mexico. Any out-of-state party faced with this situation should seriously consider hiring an experienced family law attorney.

If the out-of-state party believes that New Mexico does not have jurisdiction, then their attorney can properly object to jurisdiction and have the court decide that issue prior to moving on to the substance of the case. Failure to properly limit a response disputing jurisdiction could itself lead to jurisdiction. The response should solely address jurisdiction o there is a risk that the judge will rule that the out-of-state party has submitted themselves to jurisdiction even though this was not the intention.

Once it has been determined that New Mexico has jurisdiction over an out-of-state party, that party soon find that litigating from out-of-state can be a very expensive and burdensome process when they consider the cost of travel and missed work for court appearance. To avoid these hardships, the parties may be able arrange for the out of state party to appear at some court hearings via telephone. However, most judges require that the party wishing to appear via telephone files a motion asking permission to do so.

A Motion for Telephonic Appearance must be filed well in advance of the subject hearing and may not always be granted. For instance, at a trial or other evidentiary hearing where extensive testimony or exhibits will be presented, the court may require that the out-of-state party travel to New Mexico to appear in person.

Although parties representing themselves can certainly figure out how to arrange for telephonic appearance, it is often much more efficient to work an attorney to make sure those appearances are approved. The cost of hiring an attorney is often well worth the costs when weighed against travel costs and lost income in the case where the party fails to follow court procedures and is forced to travel to New Mexico.

In addition to the telephonic appearance, one way to avoid hearing costs is to avoid unnecessary hearings. The attorney can play a very important role by working out many issues without a hearing, and by minimizing the number of hearings. This can include negotiating directly with the other party or their attorney, or finding a mediator that will allow the out-of-state party to participate in a mediation or settlement facilitation by phone. Hiring a family law attorney experienced in representing clients who reside outside of New Mexico can substantially improve an out-of-state party's chances of successful and cost effective family law litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

One decision to be made during any divorce involving children, particularly in cases of disputed child custody, is which parent is entitled to claim the tax exemption for the children.

Many New Mexico courts will follow the basic Internal Revenue Service ("IRS") rule that, absent an agreement between the parties, the custodial parent, or the parent with whom the child lives most of the time, will be allowed to claim the exemption for that child.

However, in the 1998 case of Macias v. Macias, the New Mexico Court of Appeals ruled that Federal tax laws do not preempt the authority of the New Mexico district courts, which have jurisdiction over family law matters in the State, to allocate the tax exemption for a dependent child. In others words, the New Mexico district courts are not required to follow the IRS rule regarding the tax exemption for the child.

Instead, New Mexico courts may allocate those exemptions however they see fit so long as it is in the best interests of the child. The court in Macias noted that a dependent child tax exemption can be seen as another source of financial support for a child. As such, the court is free to allocate tax savings as a means of providing for a New Mexico child's support.

Given that claiming the dependent child tax exemption can result in substantial tax savings to the party claiming the exemption, it is important to make sure that any parenting plan or other order of child support properly addresses the tax exemption. Failure to do so could prove costly.

Collins & Collins, P.C.
Albuquerque Attorneys

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Jurisdiction is the term used to refer to a court's authority to decide certain cases. In order to hear a case, the court must have jurisdiction of the subject matter of the case and over the parties involved in a case. In a divorce or family law case, issues of jurisdiction can get somewhat complicated when the parties are living in different states.

In New Mexico, the district courts (as opposed to the magistrate or metropolitan courts) have subject-matter jurisdiction over family law cases. The baseline rule is that any person can file a petition for dissolution of marriage with the district court of the New Mexico County in which they have resided for at least six months. The New Mexico resident can file the petition whether or not their spouse currently lives in New Mexico.

However, in cases where the spouse lives outside of the state, the New Mexico courts may not have personal jurisdiction over that spouse and may not be able to issue a complete divorce ruling. The New Mexico courts can exercise personal jurisdiction over the out-of-state spouse under the following circumstances: 1) the out-of-state spouse agrees to submit to the jurisdiction of the New Mexico courts; 2) the out-of-state spouse actually participates in the divorce litigation by filing pleadings and appearing at hearings; or 3) the out-of state spouse lived in a marital relationship within New Mexico at any point in the past.

If none of the preceding conditions exist, the New Mexico district court may have jurisdiction to dissolve the marriage, but may not be authorize to distribute any of the parties' property or debts. The general rule is that the courts here have no jurisdiction over property located in another state without the consent of both parties. The issue of jurisdiction can be further complicated if there are child custody or child support issues between states.

Improper jurisdiction can result in an entire divorce decree being set aside, including the orders from the court addressing the division of property and debt, alimony, child custody and child support. Anyone faced with a divorce action in which one spouse lives outside of the state of New Mexico should consult with an experienced divorce and family law attorney prior to initiating court action in order to ensure that jurisdiction is proper.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Often in a divorce or parentage cases, parents split up when a child is very young. In New Mexico, the courts keep jurisdiction over child support until a child reaches the age of 18, or past the age of 18 if the child is still in high school. However, New Mexico lawmakers understood that the circumstances on which an initial child support award is based can change substantially between the time child support is first calculated and the date the child turns 18.

In order to ensure that child support awards are fair and in keeping with the child support guidelines, the child support statue allows either parent to motion the court to modify child support. In order to ask for such a change, the parent seeking a change must file a motion informing that court that there has been a substantial change in circumstances that will cause child support to increase or decrease by at least 20%. A substantial change in circumstances can include things like one parent losing their job or getting a new job that pays more. A motion to modify child support can also be based on changes to the parents' time-sharing and visitation schedule that result in the child spending an increased amount of time with a particular parent or, in the case of child support awards for multiple children, one child turning 18 or graduating from high school.

If a parent believes that a change in child support is warranted, then it is very important to file the motion to modify as soon as possible because the court will only retroactively award support back to the date of the motion to modify. Unless jurisdiction has been changed, the motion to modify should be filed with the district court that issued the original child support award. If the parties cannot agree to a modification, the court will hold a hearing on the issue and will most likely order the parties to exchange updated income information. In some counties, including Bernalillo, Sandoval and Valencia, the court may refer child support modifications to a hearing officer who will have the same power as a judge to enforce a new child support award. No matter where you are, any parent thinking about filing a motion to modify child support should speak to a New Mexico divorce and family law attorney to make sure that they are in compliance with the child support statute.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

A parent's decision to relocate can obviously have a significant and lasting impact on parents' custody and time-sharing agreement. Even if the parents initially agree on a parenting plan that accommodates the parent's decision to relocate, problems may arise if the parties disagree later.

The first question that arises is what Court will handle the case? This can be a complicated question of jurisdiction and venue. If the parent relocates within New Mexico, this becomes a question of venue, or which court of general jurisdiction within New Mexico is the proper location for the filing of a subsequent motion and response regarding child custody. The answer can be found in the case of Dugie v. Cameron.

In Dugie, the parties were initially divorced in the Second Judicial District Court in Albuquerque. Later, one parent and the children moved to Grant County, which is governed by the Sixth Judicial District Court. Several years later, the parties had a disagreement about custody and time-sharing. The parent living in Grant County then filed a motion to modify time-sharing in Grant County. The other parent objected and argued that jurisdiction and venue over child custody issues remained with the Second Judicial District Court in Albuquerque. The New Mexico Supreme Court ruled that the Court that issues the initial child custody decision maintains jurisdiction over child custody matters and remains the proper venue for hearing all subsequent custody modifications.

On the other hand, parents can agree to a change of venue. In addition, if one parent does not object to the other parent filing in a different count, that parent might inadvertently waive his or her objection to the change of venue. Failure to oppose the change of venue in a written Response to a Motion filed in the new county can result in a waiver of the objection and a resultant change of venue to the new county.

Thus it is very important for both parents to consult an New Mexico divorce attorney before they relocate. It is equally important to consult with an attorney before filing any response to a motion or petition filed in a county other than the county of original jurisdiction to avoid possible waiver of the objections.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

One of the final steps in completing a divorce is the entry of the Marital Settlement Agreement. The Marital Settlement Agreement provides the formal division of the parties' property, assets and debt. It also addresses alimony, spousal support, taxes, and other financial issues affecting the parties.

In New Mexico, the Marital Settlement Agreement must be signed by both parties. The Marital Settlement Agreement is typically adopted as an Order of the Court through the Final Decree of Divorce. Problems often arise as a result of one or both parties' refusal to abide by the terms of the Marital Settlement Agreement.

In cases where the divorce was granted and the Final Decree of Divorce was filed in the New Mexico Courts, either party may file a Motion to Enforce the Marital Settlement Agreement in the court where the divorce was granted. The District Courts in Albuquerque, Rio Rancho, Santa Fe and several of the other courts throughout New Mexico have a self-help divisions that will provide forms for this process in case the parties cannot afford legal counsel. The forms are also available online.

Problems often arise out of property and debt divisions from other States. Many New Mexico residents are faced with the breach of an out-of-state Marital Settlement Agreement. Unfortunately, enforcement of another state's orders can be complicated. An out-of-state Order addressing the division of property, assets and debt must typically be addressed in the court with original jurisdiction over those issues. Unlike many cases where a civil judgment may be domesticated in New Mexico for enforcement purposes, domestication of a family law Order is often not an option in family law.

The general rule is that the state court that grants your divorce maintains jurisdiction over the enforcement of any orders and decrees associated with the divorce. There are as always some exceptions. There is an exception for child support where the state in which the child resides may enforce child support obligations. Likewise, child custody jurisdiction may vest in another jurisdiction after the child has resided in the new state for 6 months. With those exceptions, the original court maintains jurisdiction over most matters related to the divorce such as the division of property and debt, spousal support and alimony.

In case of problems with enforcement, it will typically be required that a proceeding in the state of original jurisdiction be initiated. In that instance, it would be important that the obligations under the Marital Settlement Agreement be found by the Court to be a judgment. Once this is done, and the amount is fixed, the judgment may then typically be domesticated in New Mexico for future enforcement.

These issues can become very complicated very quickly. It is important to determine the proper way to proceed prior to seeking court relief. False steps could become extremely costly if the Court refuses to hear the claims due to lack of jurisdiction. It would be wise to seek the advice of a New Mexico divorce attorney when faced with this situation.

www.CollinsAttorneys.com

What happens if you file a Petition for Dissolution of Marriage in New Mexico asking the court for a divorce and your spouse never responds? Generally, if a party to a civil case does not respond within the prescribed period of time the Court will award what's called a default judgment granting the petitioning the party the relief it has requested. However, the New Mexico courts do not favor default judgments because it denies the opposing party its day in court. This is especially true of the Second Judicial District family law courts in Albuquerque and Rio Rancho. Often, even if a default order is entered, the court will overturn that order when and opposing spouse finally shows up to protest.

So what should you do in this situation? Even though the New Mexico courts don't like default judgments, filing for a default may be your only option if the opposing party simply refuses to respond. Filing a request for default can also have the added bonus of showing the opposing party that you are serious about pursuing your divorce case and prodding that party into action. Finally, the civil rules of procedure are binding on family law courts just as any other court and those rules do not favor setting aside a default more than a year after the default has been entered. Thus, if the opposing party fails to respond within a year of default, even the family courts will be extremely reluctant to set the default aside absent fraud or other wrongful behavior.

Before the court will grant a default, you must show that the opposing party has been property notified of the pending divorce action. Without proper service, the Court lacks jurisdiction. This can be done by filing an affidavit (a sworn statement) from the sheriff, or process server, that personally served the opposing party, which gives the court proof that the party was served. If you have been unable to personally serve the opposing party because you don't know where he or she is or because they are purposely avoiding service, you can ask the court to allow you to publish notice of the divorce lawsuit in the local paper, which must be done for multiple, consecutive weeks.

After providing proof to the court that notice was either served or published, there are several documents that must be filed to obtain the actual default, including an affidavit that the opposing party is not currently serving in the military, a petition explaining the details of the relief you are requesting and a certificate from the court clerk assuring the judge in your case that the opposing party has not responded. Given the many documents that must be filed to properly obtain a default order, it is important to consult a New Mexico divorce and family law attorney before beginning that process.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

Related Reading:
Taking Your Child Out Of State in a New Mexico Child Custody Case
Child Custody Jurisdiction & Venue: Parental Relocation Within New Mexico
Basic New Mexico Child Custody Rules

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Related Reading:
Child Custody Jurisdiction & Venue: Parental Relocation Within New Mexico
The Basics of New Mexico Child Custody Jurisdiction
New Mexico Divorce and Family Law Jurisdiction

Collins & Collins, P.C.
Albuquerque Attorneys