Albuquerque Divorce Lawyer Blog

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

The court rules governing divorce and family law in New Mexico provide that, whenever a petition for dissolution of marriage is filed, the district court shall enter a temporary domestic order, or TDO. In Albuquerque, Rio Rancho and Santa Fe, the TDO is automatically issued by the court along with the summons when the petition for dissolution of marriage is filed. The TDO applies to both parties to the divorce action and should be personally served upon the respondent, along with the petition for dissolution.

The language of the TDO order may vary from county to county. However, the underlying purpose of the TDO is to ensure that the parties maintain the status quo while the divorce action is pending. This means that neither party can make the other leave the marital residence and neither party can run up debt or sell off assets. The TDO also forbids both parties from removing their children from the state or to otherwise interfere with the children's relationship with the other party.

Parties often disregard the TDO as unimportant, generic paperwork issued by the court. In fact, they may not even read the TDO, which is a big mistake. Violation of the TDO is treated the same way as any other violation a court order and can result in a holding of contempt against the offending party. A contempt finding may result in fines and even jail time.

Due to the potentially severe consequences of violation, any deviation from the terms of the TDO must be approved by the Court prior the action being taken. Given that the TDO applies from the moment a petition for dissolution of marriage is entered, the parties to a divorce action should contact an experience divorce and family law attorney immediately in order to ensure that they understand their rights and responsibilities under the TDO.

Sarah Armstrong
Albuquerque Attorney
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