Albuquerque Divorce Lawyer Blog

There are many time arrangements to consider when developing a joint child custody schedule in New Mexico. If the parents can agree, the parenting plan, and custody and time-sharing arrangements therein, are left up to them.

One of the most predictable and straightforward is an alternating week schedule. This involves the child remaining with one parent for 7 days, then switching to the care of the other parent for 7 days. Each parent spends an entire week at a time with the child, creating more consistency and less frequency in transition. This arrangement is generally more appropriate for older children.

Such an arrangement may not be best when younger children are involved, as it leaves large gaps of time between visits. To fill these gaps, the noncustodial parent may request extra visitation. But this arrangement also lacks flexibility, as it is difficult to attend regularly scheduled activities during the week of the other parent. Lastly, this schedule may exclude a parent from spending certain holidays with their child.

A more flexible time arrangement could involve a 3-4-4-3 schedule, which would allow each parent opportunity for regularly scheduled events each week. In addition, the child would not go longer than 4 days between visits. The child is in the care of one parent 3 days one week, then 4 days the next. The other parent would have the child 4 days one week, then 3 days the next.

This schedule also has some downsides, as it includes more transitions than other arrangements. Children may have difficulty remembering where they will be staying from day to day. Frequent exchanges may also increase the possibility of conflict between parents, particularly if there are delays in picking up or dropping off the child.

Frequent transitions of the child from home to home can be very stressful on the child and the parents. There are many possible time-sharing arrangements. There is even the possibility of alternating school semesters and though this would be a rare arrangement.

Assuming the parents can agree, it is entirely up to the parents. If the parents cannot agree, then the courts will decide based upon the best interests of the child. Judges are very sensitive to constant disruption of the child's routines. Judges will be protective of the children so that exchanges of the child will be minimized when there is significant conflict between the parents.

There are many factors to consider when apportioning time between parents and their children in a joint child custody situation. The most successful schedules will take into account transition frequency, visitation gaps and flexibility as it relates to their situation. Parents would do well to decide these issues on their own. Leaving these decisions to the court rarely ends in an outcome to the liking of either parent.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, most parents faced with a child custody dispute, whether it is part of a divorce or a paternity action, will eventually have to deal with establishing a parenting plan that establishes how the parties will share custody and sets forth child support.

The New Mexico statutes create a presumption that the parents will share joint legal and physical custody of their children. Physical custody refers to how and when each parent spends time with their children and is often referred to as time-sharing or visitation.

Many families will wind up with a time-sharing agreement wherein the child goes back and forth between each parent's home. However, in some situations the parties may agree to, or the court may order, that the child's visitation with one or both parents be supervised. Such supervision can sometimes be provided by a family member or friend that is approved by the court or the parties. If no such person is available, a church or other community group may be able to provide supervision. Some New Mexico cities, especially Albuquerque, Rio Rancho and Santa Fe, also have companies that provide supervision for a nominal fee. In some cases, these companies provide a location where the actual visitation takes place and others provide a staff member that will accompany the parent and child on an outing. Most of these companies will also provide both parents with a report or notes of what occurred during the supervised visit.

A parent faced with a supervised visitation order will often object and feel hurt or offended that their time with their child is not fully their own. However, supervised visitation can be an asset to both parents. It can alleviate the fears of a parent who has concerns about the other parent's behavior. In turn, the supervised parent now has a witness to their interaction with their child, who can help support a future claim for unsupervised visitation. There are pros and cons to any parenting plan and consulting with a New Mexico family law attorney can help both parents ensure that a proposed visitation arrangement is the best option available to them under the law.

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

Parents involved in a child custody dispute or divorce in New Mexico will face a variety of tough decisions when determining how they will co-parent their children after they are separated. The final version of those decisions regarding custody and timesharing become a binding court order when the parties, or the court itself, enters a parenting plan.

A parenting plan will include all the day to day details of how the parents will care for and share time with their children. An integral part of that parenting plan is a schedule for holiday timesharing.

Sometimes in the flurry of negotiation or a heated hearing in front of the judge to determine child custody and/or child support, holiday timesharing can be overlooked. Failing to determine how the parents will share the holidays can lead to major disagreements later, which in turn can be very hard on the children and the parties.

Holiday timesharing plans vary widely. There are some fairly common arrangements. Often parents will alternate years. For example the father has the children for Christmas Day in even years and the mother has them for Christmas Day in odd years. Where possible, the parents will frequently also divide Christmas Eve. Essentially, the Christmas day schedule will be reversed.

With this common plan, one parent will have the children on Christmas Eve, the other parent will have them on Christmas Day. This insures that both parents see the kids during Christmas. Unfortunately, this arrangement is not always possible in cases where the parents live far apart.

Though it is typically the most emotionally charged, there is a lot more to the holiday schedule than Christmas. The same issues arise for all major holidays, spring break, summer break, and so on. The schedule should address all major holidays, especially those when the children will have time off from school. Like Christmas, a common arrangement is to alternate all holidays from year to year.

It is very important that the parenting plan include provisions for long weekends associated with many holidays such as Labor Day, Veteran's Day and July 4th. Some schedules may even include make-up time when a holiday with one parent falls during the other parent's regular period of responsibilities.

Again, holiday schedules will be different for every family, but the important thing is to make sure that they are as complete as possible to avoid the far too common fight over timesharing a week before Christmas when it is near impossible to get a court hearing.

The more detail in the parenting plan, the better. Detail will hopefully avoid conflict and thereby avoid court. And court during the holidays is really something to be avoided for everyone's sake.

Collins & Collins, P.C.
Albuquerque Attorneys

A frequent question for parents involved in a divorce or child custody dispute is which parent is going to claim the IRS tax exemption for the children. The issue is typically dictated by issues of child custody and child support.

The New Mexico courts will generally follow the IRS rules regarding the exemption, which can be somewhat complicated. Generally, the custodial parent is entitled to claim the tax exemption for a dependent child. The IRS defines the custodial parent as the parent with whom the child lived for the greater part of the tax year, which makes the other parent the non-custodial parent.

However, a noncustodial parent can be allowed to claim the exemption for a dependant child if all of the following circumstances exist: 1) the child must receive more than half of his support for the tax year from one or both of the parents (i.e. TANF does not count as support by the parents); 2) the child must be in the custody of one or both of the parents for more than half of the year; and 3) either the custodial parent agrees not to claim the child or the parties have a written divorce or separation document entered prior to 1985 granting the non-custodial parent the right to claim the child.

Thus, if the parties agree, they can enter into an agreement as to who claims the tax exemption. There are many variables that go into the decision to allow the non-custodial parent to take the exemption including the income of the parties, child support and perhaps most importantly, the parties ability to make rational financial decisions despite the stresses of a divorce.

Assuming the custodial parent agrees, the non-custodial parent may claim the exemption. In the case of a single child, parents often agree to alternate claiming the child every other year. If the parents have more than one child, they may agree that each claim a specific child in order to both benefit from the tax exemption.

However, it advisable to consult with an experienced family law attorney when drafting such a agreements so that the proper language required by the IRS is included in the divorce pleadings or parenting plan and so that the proper IRS forms are completed every year.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

One issue that can complicate any child custody arrangement is one parent's decision to leave New Mexico and their desire to take their child with them. While the court cannot prevent a parent from moving, it can prevent the parent from taking a child with them. If the parent wants to move prior to a divorce or paternity action being filed, they will most likely be prevented from doing so by the temporary domestic order entered by the court in nearly every family law case. If the parent wants to move after a parenting plan and custody order has been entered by the court, the plan itself should address whether or not one parent can move with the child.

If both parents agree that one parent can leave New Mexico with the children, then they should file a pleading with the district court that notifies the court of their parenting agreement. If the parties do not agree, then the party wishing to move can file a motion asking the court to allow him or her to relocate with the child. Once a parent decides to move, they should first discuss the proposed move with the other parent in order to see if an agreement can be reached. If not, then the parent who wishes to move needs to file their motion to relocate as soon possible because it can take weeks if not months to get a hearing before the judge.

In considering a motion to relocate, the court will look at many of the same issues it looks as in any custody evaluation. The basic question asked by the court will be whether or not the move is in the child's best interest. This includes things like: what support systems will be available to the child in his or her new home; how attached the child is to the family and community they will be leaving behind; the wishes of both parents; and, depending on the child's age, the wishes of the child. The court will also examine the distance between New Mexico and the proposed new home and the ability of the parties to travel for visitation, as well as the moving parent's reason for wanting to relocate.

Acting quickly and understanding the complicated nature of child custody decisions is key to success in getting the court's approval to relocate with a child or preventing that relocation. Thus, is it imperative that any parent in such a situation contact an experienced New Mexico child custody attorney as soon as possible.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens if parties to a divorce or paternity case have gone through all of the mediation and court hearings required to reach a parenting plan that establishes child custody, but one parent just won't comply with the Court's order? In New Mexico, the non-complaint party may be charged with the crimes of custodial interference or unlawful interference with custody.

These crimes are similar and both are fourth degree felonies which means that a person found to be guilty of either crime, may be imprisoned for up to 18 months and fined up to $5000. In addition, the offending parent may suffer additional consequences in the family law court with awards of attorneys fees and costs. The crime of custodial interference is committed when one parent maliciously takes, detains, conceals or fails to return a child to the other parent by the terms of the parenting plan or custody orders without good cause and with the intent to deprive the other party of custody for a protracted period of time or permanently.

In contrast, the crime of unlawful interference with custody is committed when a party who does NOT have a right to custody of a child maliciously takes, detains, conceals or fails to return the child to the party who rightfully has custody. Any law enforcement officer that is called upon to investigate a charge of custodial interference or unlawful interference with custody may take a child into protective custody, if that officer believe that a person may flee with the child. The child may then be returned to the custodial parent or may be held in a community-based shelter until a civil court can hold a hearing to determine or enforce custody.

While law enforcement has the authority to investigate and take action in both types of custodial interference cases, it can be very difficult to track a child down once a parent or other party has taken them. Thus, any person faced with such a situation should call law enforcement immediately and should also consult an experienced child custody attorney to make sure that their custodial rights are protected once the child is recovered.

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

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

The essential component of a Domestic Violence Order of Protection under the New Mexico Family Violence Protection Act is the issuance of a restraining order prohibiting the restrained party from having any contact with the protected party/alleged victim. However, when the restrained party and the protected party have children together the domestic violence hearing officer can also issue short-term decisions regarding child custody, timesharing and child support. In Albuquerque, Rio Rancho and Santa Fe, the hearing officer will often refer the parties to the court clinic or family court services in order to evaluate custody and advise the court as to what is in the best interest of the children involved in the domestic violence case. The result is often a temporary parenting plan, the duration of which will depend upon the future behavior of the parties.

Albuquerque, Rio Rancho and Santa Fe each have a variety of court clinic and/or family court services for addressing child custody and time-sharing issues. These offices are staffed by trained psychologists, therapists and social workers who are often called court clinicians. The purpose of a court clinician is to help the judges and hearing officers make custody determinations by conducting an investigation into a child's living situation. This investigation, often referred to as a child custody evaluation, includes interviews of the parents, the child (if the child is old enough) and others involved in the child's daily life such as grandparents, teachers, doctors, counselors and even coaches.

Sometimes a hearing officer will ask a court clinician to appear at a hearing on an Order of Protection on very short notice for an on-call child custody evaluation. This is typically the case in custody matters related to domestic violence actions. In these situations, the hearing officer will call a recess from the hearing in order to allow the on-call clinician to speak to all of the parties present and make a child custody and timesharing recommendation that is in the child's best interest. If the on-call clinician determines that more investigation needs to be done they may ask the hearing officer to order a priority consultation which a more thorough but expedited custody evaluation. However, the on-call clinician will make interim recommendations based upon preliminary findings that will stand pending the priority consultation

A priority consultation is a more in-depth evaluation by the court clinician and will usually be held sometime after the domestic violence hearing. It may include interviewing others in the child's life not present in court at the domestic violence hearing and reviewing any relevant documentation about the parents' or the child's mental health. If the court clinician feels like still more investigation is needed, there may be a request that the hearing officer or the judge order that the parties participate in an advisory consultation, which often requires all the parties involved to undergo psychological testing and may span a period months, often many months due to the heavy caseload in the court clinic.

At the end of an on-call, priority or advisory consultation, the court clinician will make recommendations to the hearing officer or judge as to what the parties' timesharing arrangement should be. Each party has ten (10) days to object to the recommendations issued by the court clinician. If no objections are filed within the 10 day time period, the recommendations are adopted as an order of the Court.

A hearing on an Order of Protection can have lasting effects on a restrained party's liberty and their right to see their children, which make is extremely important that you consult an attorney if a Petition for Order of Protection is filed against you. Every case is unique and requires individual analysis to protect both your interests and the interests of your children. No matter which side you are on, it is typically inadvisable to attend these hearings without a New Mexico divorce and family law attorney.

www.CollinsAttorneys.com

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 parenting plan that creates 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.

www.CollinsAtttorneys.com