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

The New Mexico Child Support Guidelines provide a specific set of rules governing the imposition of child support. The guidelines provide two different worksheets for purposes of calculating child support. Worksheet A is used when the child (or children) for whom support is being paid resides with one parent more than 70% of the time. Worksheet B is used when the child's time with the parents is more evenly divided.

Both worksheets incorporate the following factors: the gross income of both parents, the number of children to the parties, payments made for work related day care, and payments for health insurance costs for the child. In special circumstances, other amounts can be included in the child support worksheet, like regular recurring school expense or medical expenses for the child. However, no deductions are for any items other than those explicitly allowed for in the Child Support Guidelines.

While the guidelines are pretty straightforward, complications can arise when a parent has child support obligations for children with different partners. For example, a father may have children with three different women. The father is most definitely responsible for child support for each child. The child support worksheets will be applied to each child. However, if each child support calculation were determined separately under the guidelines, the total support owed by this father would often exceed 50% of his total monthly income, which is prohibited by the guidelines. To avoid this, the law dictates that each successive worksheet for later born children must reflect a reduction in the father's income for prior child support obligations.

Essentially, the New Mexico Court of Appeals has ruled that the father's income should be reduced by the amount of child support he pays for his children with different mothers. This reduction is applied to the each child's support based on birth order, which will often result in the third child getting less support than the first and second child. This result may seem unfair for later born children, but the position of the New Mexico courts is that the resulting unfairness will be corrected as the older children turn 18 and the father quits paying support for each of them. As that happens, the mother can petition the court to reevaluate child support to reflect the father's increased income as his prior support obligations go down.

The issue of calculation of child support for multiple children with different parents can get pretty complicated. More importantly, it can also get pretty contentious particularly for the mothers of later born children. Often times, they simply will not accept that the law dictates a reduction of the father's income for prior child support obligations. These cases, as with many divorce and family law matters, can be driven more by emotion that law. Parties faced with this situation would be well advised to seek the attention of an experienced New Mexico divorce and family law attorney. The law is straightforward and both parties should proceed with this in mind. Moving forward on emotional grounds can be extremely stressful and costly to all involved.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

For the most part, family law matters, including divorce, child custody and time-sharing and child support are governed by the States, which means that most of the case law relevant to New Mexico family law issues comes from the New Mexico courts. However, the United States Supreme Court recently issued a family law decision regarding parents' rights and duties when taking children to foreign countries.

In the recent United States Supreme Court case of Abbot v. Abbot, No. 08-645, the Supreme Court was charged with interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and International Child Abduction Remedies Act (ICARA), which govern, among other things, parents' rights and remedies when their children are taken to another country without their permission. In Abbot, the married parties moved to Chile with their son and then separated. The Chilean court granted the mother primary custody and granted the father regular visitation. Subsequently, the mother took the child to Texas without the father's permission. The father then filed a suit in the federal court in Texas asking the court to order his child's return.

His request was initially denied by the federal court, but the Supreme Court reversed that decision and found that Chilean law gave the father custody rights, which in turn, gave the father the right to refuse consent to the mother's taking of the child out of the country under the Hague Convention. Based on the Court's ruling in Abbot, it is very clear that the United States takes the custody decisions of countries that adhere to the Hague Convention very seriously and, in turn, expects those participating countries to give the same respect to American child custody and time-sharing orders.

Child custody cases involving international travel and/or international relocation of one of the parents with the child are complex and rife with hazards. The Hague Convention, and the federal laws that enforce it, are very complicated and can involve not only the Courts of the respective jurisdictions but also the United States Department of State's Office of Children's Issues. Any person facing a custody dispute that involves international travel or international relocation to or from New Mexico should contact a New Mexico divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
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

It is often said that divorce is hardest on the children, who are faced with wondering why their parents split up, possibly feeling guilty for their perceived role in that separation and often having to get used to a new place to live. In New Mexico, the term child custody is a complicated concept; it refers not only to which parent has physical possession of the child, but also which parent has the power to make to make decisions about the children's lives. Physical custody is generally described in terms of time-sharing and periods of responsibility, or visitation, all of which are most often delineated in a document called a Parenting Plan.

The law in New Mexico presumes that joint physical and legal custody is in a child's best interest because a child is better off having two parents activity involved in his or her life. However, the preference for joint custody does not mean that the baseline presumption for a Parenting Plan is that each parent has the child with them exactly fifty percent of the time.

As a preliminary matter, Parenting Plans need to be age-appropriate. For example, a fifteen-year-old may be able to handle being away from one parent for weeks at a time, whereas an infant may not. Thus, the periods of responsibility, or timesharing, will depend on the age and emotional stability of each child.

In evaluating a time-sharing schedule the Court may consider, among other things: the wishes of each parent; and the wishes of the child. In making its decision, the Court will also consider the child's relationship with each parent and any siblings; the child's ties to their school and their community; and, the mental and physical health of everyone involved in the child's life.

If the child is over the age of 14, the Court and the parents must consider his or her wishes. Although the Court does not have to agree with the child, the Court will usually defer to the child's wishes unless those wishes are manifestly harmful to the child. The plain fact is that few parents can enforce their will over a teenager, the Court most certainly cannot. The Court understands this and will not even try due to the many possible harms such forced decisions may raise.

www.CollinsAttorneys.com

Child custody and time-sharing can be the most difficult and contentious part of any divorce. For most parents, the most difficult part of a divorce is not dividing the property and debt, or even issues of alimony, but rather deciding how to co-parent their children while no longer living together.

In New Mexico, the term custody is complex; it refers not only to which parent has physical possession of the children, but also which parent has the power to make the important decisions about the children's lives. This decision-making responsibility is often referred to as legal custody, which can be held solely by one parent or held jointly. This concept of legal responsibility is distinct from physical custody or time-sharing.

The preference of the New Mexico Courts is for parents to share joint legal custody, which does not mean that the parents have to agree on every aspect of their children's lives, but does require them to agree on the following issues: where the children go to school; the children's religious practice; the children's extracurricular or recreational activities; where the children live; and, medical treatment for the children.

In contrast, a parent with sole legal custody will not have to consult with the other parent about the major decisions in the children's lives. With respect to those decisions, the law in New Mexico favors maintenance of the status quo, which means that a divorce should not change the state of the children's lives with respect to these major issues, unless both parents agree to that change. Further, all custody decisions must be made in the best interest of the children. The factors used by the Court to determine what is in a child's best interest can be found in the New Mexico Statutes on Joint Custody, NMSA Section 40-4-9.

www.CollinsAttorneys.com