Albuquerque Divorce Lawyer Blog

Establishing paternity has several important legal consequences. However, before paternity can be legally established, a party alleging paternity must have reliable evidence to present to the court.

In the past, paternity could be difficult to determine and courts were often forced to rely on testimony or other anecdotal evidence in order to do so. However, recent advances in technology have made DNA paternity testing readily available and relatively inexpensive. DNA testing provides incredibly accurate results to private parties and the courts.

There are several types of DNA paternity tests that can be performed both before and after the child is born. There are three main tests that can be performed prenatally: Amniocentesis, Chronic Villus Sampling (CVS), and SNP Microarray. An amniocentesis can be performed in the second trimester of a woman's pregnancy. An SNP can be performed as early as the 9th week of pregnancy and CVS can be performed as early as the 10th week. After the child is born, there are several postnatal DNA paternity tests that can be performed. These include blood samples, buccal (cheek) swabs, and umbilical cord tests.

Today, paternity testing can be necessary to address a variety of legal issues, such as: child support, adoption, inheritance, social security/insurance/military benefits, immigration issues among others. However, to be legally admissible, the paternity test must follow a strict chain of custody rules in order to ensure the reliability of the results as evidence.

In New Mexico, the Uniform Parentage Act (UPA) establishes chain of custody and other rules regarding genetic testing to establish paternity. To establish chain of custody under the UPA, the specimens must be taken by a neutral, accredited facility. The facility must comply with accreditation requirements of the UPA. A representative of the laboratory must sign the genetic testing report under penalty of perjury. The report must include: (1) names and photographs of the person(s) the specimens were taken from, (2) name of the person collecting the specimen, (3) location and date of collection, (4) names of persons receiving specimens in the testing lab, (5) date specimen was received, and (6) laboratory accreditation documents.

Under the UPA, a man is identified as the father of a child if the results of the DNA test show that the probability of paternity is at least 99% or shows a combined paternity index of at least 100 to 1. The only way to rebut the genetic testing results is by providing other genetic tests that either (1) exclude the man identified as the father of the child or (2) identify another man as the child's possible father. If tests identify more than one man as the child's possible father, the court will order further genetic testing.

Results of DNA paternity tests are strictly confidential. According to the UPA, paternity test results should only be shared with the person tested, their attorney, the court, and the support enforcement agency involved. Under New Mexico law, releasing paternity results to anyone other than the persons listed above is a fourth degree penalty.

There are many home DNA testing kits available on the Internet today. Although these tests may be helpful in clearing up doubts regarding a child's paternity, it is important to understand that the results of a home DNA kit are not admissible as evidence in court. As discussed earlier, to be admissible as evidence, paternity testing procedures must adhere to strict chain of custody rules that are simply impossible to achieve with a home test.

Paternity has many consequences, some welcome and some not so much. A finding of paternity means that the father is now responsible for child support until the child is 18 or graduates high school. This can obviously be a great financial burden. The emotional burden may be equal in weight. If faced with a situation disputed paternity, it is important to know your rights. It is equally important to assert those rights which may require the assistance of an experienced New Mexico family law attorney.

Related Reading:
Unmarried Fathers: Paternity, Child Custody and Time-Sharing
Retroactive Child Support in New Mexico Paternity Actions

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, parents are held financially responsible for providing for the care of their children's needs. As such, the issue of child support is governed by mandatory state guidelines under the New Mexico Child Support Guidelines These guidelines include a formula based on a number of factors that help ensure children involved in either paternity or divorce proceedings receive the proper financial support.

Each parent is required to report their gross monthly income using a child support worksheet that can be found in the family law section of New Mexico Courts website. This worksheet is generally non-negotiable and most judges will not issue an Order Adjudicating Parentage/Order Establishing Paternity or Final Decree of Divorce without it.

After reporting gross income, credits are given to each parent for certain allowable expenses. Allowable expenses are restricted in nature, typically only covering childcare expenses and healthcare premiums, including medical, dental and vision care. In order for childcare to be considered allowable, the expense must be incurred during time that a parent is either working or is out looking for a job.

Extraordinary expenses related to mental or physical health care that are over $100 and uninsured are also allowed. This would involve things like counseling sessions or orthodontics. These types of expenses would be converted to monthly figures or handled outside the worksheet in the Parenting Plan or other Court Order.

The New Mexico Child Support Guidelines also provide credits for extraordinary educational expenses, as well as communication and transportation costs related to long distance time sharing or visitation. However, these items are typically addressed in a parenting plan, not the child support worksheet.

Likewise, additional expenses, which are not the same as allowable expenses, are not directly considered on the worksheet, nor are they defined by statute. However, these too may be addressed in a Parenting Plan or other Order outside the child support worksheet.

Keep in mind, the child custody and/or time-sharing arrangement will determine which New Mexico Child Support Worksheet to use. Worksheet A is used when one party has primary custody. Worksheet B is used when there is shared custody.

Once the parties determine the appropriate worksheet to use, all allowable expenses are entered into the worksheet along with gross income figures for both parties, and when appropriate time-sharing ratios. From these statutory entries of income, expense and time-sharing, the monthly child support figure will be determined. Unless there is a very good reason to deviate which there seldom is, this is the child support!

Collins & Collins, P.C.
Albuquerque Attorneys

It is the preference of New Mexico courts that both parents participate in the lives of their children. This participation can become complicated when unmarried parents are involved, particularly when disagreements arise or an unmarried father is being denied access to his child.

Under New Mexico law, a child born to married parents is presumed to belong to both parents. On the other hand, a child of unmarried parents is deemed to be only the child of the mother. Unless certain measures have been taken by an unmarried father, such as being named on the child's birth certificate or confirmation of paternity through blood testing, there is no automatic presumption of paternity. This means that the unmarried father of a child may have to legally establish paternity to exercise his rights to physical and legal child custody.

In order to establish his paternal rights, an unmarried father must file a Petition to Establish Paternity. More specifically, since child support kicks in once paternity is established, a Petition to Establish Paternity, Child Support and Child Custody is filed.

Once filed, there a number of options for establishing paternity. The parties can agree and enter a Stipulated Order Establishing Paternity, Child Support and Child Custody. More common, the parties will agree to Paternity and child support reserving the issue of custody. Perhaps just as common and for obvious reasons, if the parties cannot agree on child support, then the father must establish paternity by other means.

The most direct route to establishing paternity, other than by agreement of the parties, is through DNA testing. If paternity is disputed, then the father can request DNA testing. DNA testing is generally at the costs of the father, subject to reallocation in some circumstances.

Once paternity is established, child custody and time-sharing can be difficult to address. This is particularly the case where no relationship exists between the child and the father and the mother was resistant to a finding of paternity. Child custody and time-sharing will always be based upon the best interests of the child. As result, the transition toward a normal time-sharing plan can be very slow. In some cases, where the child is older, there may never be significant time-sharing. However, in most cases, the Court will transition toward normal time-sharing as quickly as possible in order to encourage the father child relationship.

Once paternity is established, the father will have some paternal rights. The extent of those rights will be dependent upon the circumstances of each case. As with many family law issues, the progress may be slow and bumpy. The progress and outcome is fact specific and entirely dependent upon the situation of the parents and the child.

Collins & Collins, P.C.
Albuquerque Attorneys

Co-parenting is never easy, whether you are involved in a child custody dispute as part of a divorce in New Mexico or a paternity action somewhere across the country; the issues are often the same. Unfortunately, when custody disputes get really heated parental alienation can occur.

Although parental alienation is a broad and controversial topic, the main premise is that parental alienation occurs when one parent tries to turn a child, or children, against the other parent by doing things like making negative comments against the other parenting, interfering with visitation and encouraging the child to point out the other parent's faults. Some cases can be quite extreme with false allegations of child abuse used to sever the relationship between the child and parent.

The parent trying to alienate the child is often called the aligning parent because that parent is trying to align the child with him or her against the other parent. In turn, the alienated parent is often called the rejected parent. Rejected parents can be quick to believe they are the victims of parental alienation, however, they often do not realize that their behavior may be contributing to the alienation taking place between the parties.

For instance, aligning parents may create alienation because they, rightly or wrongly, have a deep distrust of the rejected parent and they have convinced themselves that the rejected parent does not really care for the child. This distrust may lead the aligning parent to say terrible things to the child about the rejected parent and to try to prevent any contact between them. In such a case, the rejected parent may respond by withdrawing from the conflict entirely or by rejecting the child as reprisal for the aligning parent's actions. Rejected parents may also contribute to alienation by having a very harsh or rigid parenting style or being overly critical of the child. When a rejected parent's behavior contributes to the alienation, those actions sometimes lead to estrangement.

Obviously the issues involved in a parental alienation case can get complicated quickly. Anyone involved in a custody dispute where one or both parties may be contributing to parental alienation should contact an attorney immediately before the damage done to the parent child relationship is irreversible. This is particularly important in cases involving false allegations of abuse.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

During the past few decades, there have been numerous advances in medical research regarding fertility. These advances are often a blessing for people who have been unable to have children, but they can also create complications for the family law courts. For example, can sperm donors be required to pay child support for the children created by their donation? The New Mexico courts have examined this very issue and the answer they have arrived at is perhaps yes, perhaps no, but always maybe.

Generally, the biological parents of a child are responsible for supporting that child. This obligation extends to biological fathers regardless of whether or not the father was ever married to the child's mother and regardless of whether or not he intended to conceive a child with the mother. The New Mexico court of appeals has ruled that when a woman is artificially inseminated by a licensed physician with the sperm of an anonymous donor, that donor will not be obligated to pay child support even though he is the biological father of the woman's child because such a case does not result in a true parent-child relationship.

However, the issue of sperm donor responsibility becomes substantially more complicated when parties privately conduct artificial insemination without the assistance of a doctor, or through a sexual encounter, with the understanding that the father is acting only as a sperm donor. Even when the parties agree in writing that the father is acting as a sperm donor and will not be obligated to pay child support, the court may find that the father/sperm donor is required to pay support if he engages in conduct that creates a parent-child relationship. A sperm donor may become a father when he acts like a father. This conduct can include things like acknowledging that he is the child's father. It can also include regular contact with the child. A regular visitation schedule will almost certainly result in a finding of paternity with consequent child support obligations. Any form of child custody would clearly indicate paternity and child support. Other acts by the sperm donor that create a father-child relationship may also result in finding by the court. The court will often look to the expectations of the child. As with all matters involving children in family court, it is the best interests of the child that are conclusive.

Thus, very simple acts, when taken together over time, can create a parent-child relationship in the eyes of the court. This is the case even when this may not have been the intention of the mother or the father. As such, anyone considering sperm donation, whether anonymous or not, should consult an attorney in order to fully understand the rights and responsibilities that come with such a donation. Then all behavior toward the child in the future should be consistent with the sperm donor's intentions.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the district court retains jurisdiction over child support until the child is 18 and can continue past the age of 18 if the child is still in high school. The child support statute also allows either party to petition the court for a modification of child support when a change of circumstances has occurred that will result in an increase or decrease in child support of at least 20%. A motion modify child support may be filed with the district court that issued your original child support order.

The change in circumstances required to support a child support modification can be a variety of things, like one party losing their job, or getting a raise or the parties substantially changing their visitation schedule. If you are faced with a situation that you think will change your child support award, it is very important that file the motion to modify as soon as possible because the new child support award will only go back to the date the motion to modify was filed. For example, if a party loses their job in September but then waits to file a motion to modify until November, then the reduced child support amount will only apply from November on and the party will be responsible for paying the higher amount for September and October.

The only exception to this rule about retroactive child support applies when a party files a petition to establish paternity under the New Mexico Uniform Parentage Act. In that case, the Court can order child support back to the date of the child's birth, but not more than 12 years unless the court makes a finding that a paternity action could not have been filed before the child turned 12. When deciding the amount of retroactive child support and child support arrearages the Court will consider factors like the mother's ability to locate the father and any equitable defenses raised by the father. Whether a child support action is brought as a modification of an existing order or as a new award, parties to a child support action should seek legal counsel immediately.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com