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My Blog

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Sperm Donors and Child Support

Posted on November 7, 2014 at 3:14 PM Comments comments (195)
A couple of weeks ago, a client told me that he had been approached by a lesbian couple who were dear friends of his and asked whether he would be interested in helping them have a baby. This fellow would only have to provide the sperm and using the traditional method so no medical professionals would be used.
 
The client asked whether he would be liable for paying child support under New Mexico law. Here's the answer...
 
Maybe.
 
In New Mexico, biological parents are required to provide for their children. Even if the parents never marry or if there was no planning of conception, parents are still required to provide support for their kids. However, the New Mexico Court of Appeals has ruled that in cases where the mother was artificially inseminated by medical professionals and the sperm donating father was merely that, a simple donor, the father will not be required to pay child support.
 
The situation becomes murkier in cases where the parents did not use professional medical care such as in private agreements between parties such as the one my client was about to enter. In cases like this, the courts look to see whether there has been any development of a parent-child bond, whether the father holds the child out as his own, and various other conditions. Problems can emerge even when everything is written down on paper.
 
So yes it's possible for sperm donors to pay child; maybe. If you have further questions, please contact an attorney.

Father Doesn't Have to Pay Child Support after Terminating His Parental Rights

Posted on August 1, 2013 at 1:15 PM Comments comments (209)
 
This Newsflash comes directly from the Albuquerque Journal. The link is below. This is an important news story as it changes a major understanding of the law.
 
Court: Father doesn’t have to pay child support
 
Scott Sandlin / Journal Staff Writer
 
His parental rights were terminated in 1990 Doña Ana caseA man whose parental rights were terminated after allegations of mental and physical abuse does not have to pay more than $117,000 in court-ordered child support for his two children, the state Court of Appeals has ruled.Judge Michael Bustamante, writing for a unanimous three-judge panel, concluded termination of parental rights severs the parent-child relationship completely – including the support obligation.The ruling came in the case of a Doña Ana County couple who married in 1984 and divorced in 1990. The father was ordered to pay $600 a month in child support payments for the couple’s two children.Three years later, the mother sought to terminate her ex-husband’s parental rights based on allegations of mental and physical abuse. The father didn’t show up for the hearing, and the district judge noted that the children had “witnessed horrific violence and mayhem to those they love.”The judge also noted the father had kidnapped the children and taken them to Texas for 10 months in 1990 without letting them have any contact with the mother during that period.The District Court said the children would not be damaged if they never had contact with the father again and granted the termination request. The November 1993 termination order made no mention of child support.The mother applied for aid from the state Human Services Department. HSD collected some $7,620 from the father and the mother continued to press for unpaid child support.In 2010, District Judge Michael Murphy of Las Cruces ordered the father to pay $117,502 in past due child support plus interest, for a 14-year period from 1994 through September 2010.The father appealed and the Appeals Court reversed Murphy’s order, noting that the state statute dealing with termination of parental rights was far from clear.The mother argued the law dealt with the rights of the parent, not a parent’s duties toward a child, so a child’s “inherent right to support from the parent persists” even after parental rights are ended.The father argued that if the Legislature had intended a continuing duty of child support, it would have explicitly said so.The Appeals Court said that revisions to adoption law, made part of the Children’s Code in significant 1985 revisions, removed reference to a parent’s “duties and obligations” post-termination.“The question is whether the changes in language … reveal a legislative intent to continue support obligations after termination of parental rights. We conclude that they do not,” the Appeals Court said.“Such a significant change,” it said, “would seemingly require definitive action by the Legislature.”Bustamante’s opinion says termination of rights is meant to end the connection forever.“The Legislature had no intent to change the fundamental nature and effect of an order terminating rights when it amended the Children’s Code in 1985,” the ruling said. “The fundamental and terrible act of severing the parent-child relationship cuts off all connection between them except as specifically excepted by the Legislature.”The court said its analysis looked at historical changes in laws “that reflect an evolution of attitudes toward the parent-child relationship and the problems posed by abused, neglected and delinquent children.”Judges Cynthia Fry and Michael E. Vigil joined in the opinion, which reverses the lower court.

Top Ten Divorce, Custody, Child Support Myths

Posted on July 18, 2013 at 7:59 PM Comments comments (162)
 
Ten Divorce, Custody, and Child Support Myths
 
1.It is OK to deny visitation if the other parent does not pay child support.
 
False. This situation comes up when the noncustodial parent falls behind in paying child support, and the custodial parent decides that the delinquency justifies shutting the other parent out of the children's lives. In the eyes oft he Court, child support and child visitation are separate issues. Child support is not payment for the privilege of visitation.
 
 
 
2.Adultery is a ground for divorce.
 
False. New Mexico is a no-fault state. Any married person can ask for a divorce “just because”.
 
 
 
3.A spouse can deny the other spouse a divorce.
 
False. In the days before no-fault divorce, one spouse could make it all but impossible for the other to end the marriage. This is not the case anymore. Anyone can get a divorce!
 
This does not mean that divorce is easy. In the vast majority of cases, one spouse wants to end the marriage and the other does not—at least in the beginning. And sometimes the reluctant spouse stalls the process of a divorce out of spite.
 
4.The mother automatically gets the kids.
 
False. Mother does not automatically get the kids. However, in many cases, the divorcing spouses agree the children's best interest is with the mother. In contested cases, where both parents seek custody, the court decides the question by also deciding what’s in the best interests of thechild.
 
 
5.A parent with a mental illness or a drug using parent will never get custody oftheir kids.
 
False. In NewMexico, parents even in state custody have rights. Just because one parent may suffer from a mental illness or drug or alcohol addiction, the Courts in many cases will not keep a parent from their children. There might be certain restrictions however. Also due to the changing nature of Medical Cannabis, the lawful use of marijuana may not face the Court at all!
 
 
6.You can take a smaller property settlement to avoid paying child support.
 
False. Property settlements and child support are separate issues.  In New Mexico child support is decided based upon certain guidelines and judges are prohibited from deviating much from those guidelines except in the most exigent of circumstances.
 
 
7.Most contested divorces are settled at trial.
 
False. In many contested cases, lawyers prepare for trial even as they continue to search for a settlement. This is part of their strategy. Reputable divorce lawyers always try to work for a settlement rather than a trial because going to trial escalates the cost of a divorce astronomically. Few people havethe money or the stomach for it.
 
 
8.A divorcing woman can always count on alimony.
 
False. In most cases, most women do not get alimony at all. New Mexico provides for different types of spousal support however there are no hard and fast rules. Secondly and most importantly alimony is not even considered unless the couple have been married for several years.
 
 
9.If a parent terminates their parental rights they can avoid paying child support.
 
False. Even in cases where on parent terminates their legal rights to parent their children, they cannot avoid paying child support.
 
 
10.  My kids can talk to the judge or testify in court.
 
 
False.The Court is not really interested in the wishes of the children. And the Court will not in most cases have the children address the Court.  However, the Courts will often times appoint attorneys to represent the children. These attorneys are called guardian ad litems. They get to know the children and act as a voice for them.
 
 
 
 
 
 
 
 
 

What Happens if I Don't Pay my Child Support Obligation?

Posted on June 5, 2013 at 6:01 PM Comments comments (177)
I just got off the phone with someone who asked the classic question "What can they do to me if I don't pay my child support obligation?". Well, here's the answer:
 
Courts get mad when you don't pay your child support. They can order payment of all back child support that you owe plus interest. That's called arrearages.
 
The New Mexico Child Support Enforcement Division is empowered to go after folks who don't pay their child support obligations. They can petition the Court for a hearing to get you. They aren't the only one's who can ask the Court for a hearing, so can the custodial parent or even your child (if over 18).
 
If you don't pay your child support obligation, the Court can garnish your wages, take your tax refunds, also licenses such as driving licenses, professional and occupational licenses can also be suspended.
 
You can even go to jail.
 
Plus a whole lot more. So please pay your child support, it's for your kids. If you believe you are paying too much, contact me.

Happy Thanksgiving

Posted on November 23, 2012 at 11:07 AM Comments comments (272)
Even in tough times, we all are called to take a few moments and inventory our lives. Despite whatever challenges we are facing, all of us have at least something to be thankful for. 

Have a Happy and drama-free Thanksgiving Weekend!

What Financial Information Am I Required to Disclose in Child Support and Divorce Cases?

Posted on September 21, 2012 at 12:28 PM Comments comments (477)
What Financial Information Am I Required to Disclose in Child Support Cases and Divorce Cases?

New Mexico law provides that in Family Law cases such as Divorce and Child Support matters, certain highly detailed financial information must be disclosed. Before beginning the legal process, there are a number of documents that you should try to obtain. These documents are used for the purposes of determining interim division of income and expenses, spousal support, and child support.   
 1.     All state and federal tax returns for the last two years; 
 2.     Mortgage and property tax statements for any real property; 
 3.     Paystubs for the previous six months; 
 4.     401(K) and/or IRA and/or Pension statements for the previous one year; 
 5.     Credit card monthly statements for the last twelve months; 
 6.     Monthly statements for all bank accounts and investments; 
 7.     Loans documents; 
 8.     Monthly bills to include rent, PNM, water, cable etc. 
 9.     Transportation expenses; 
 10.   Insurance documents

How is Child Support Determined in New Mexico?

Posted on August 25, 2012 at 12:56 PM Comments comments (258)
How is Child Support Determined in New Mexico?   

In New Mexico, child support is determined according to the New Mexico Child Support Guidelines and mandatory Child Support Worksheets.  Under the New Mexico Guidelines, parents are responsible for expenses like work-related child and healthcare, other expenses like private schools and extracurricular activities are not always factored into child support figures and are paid in addition to the Guideline support.  

Child Support Worksheets are mandatory and are generally required for a judge to sign a Final Decree in a divorce or a Parenting Plan.  The amount of support due is calculated based on the parents’ custody arrangement, combined gross income, and certain monthly expenses for the children.  The guidelines and support calculator are available at http://www.hsd.state.nm.us/csed/guidelines.html

The custodial arrangement, or amount of time a child spends with each parent, is what determines which Child Support Worksheet the parents must use to calculate a child support figure.  Worksheet A should be used when one parent has custody of the child for less than 35% of the time.  Worksheet B should be used when parents have custody of children for closer to 50% of the time.  

The guidelines define “gross monthly income,” as income from any source.  This can be in the form of salaries, wages, tips, bonuses, commissions, annuities, pensions, disability benefits, severance pay, interest, dividends, etc.  Gross income does not include child support received by a parent to support other children.  Alimony and child support for prior children that is actually paid in compliance with a court order may also be subtracted from gross income depending on when the other child support orders were entered.  Similarly, TANF, food stamps, and means tested social security income are not included in gross income.  

Basic Child Worksheets include only a few of the expenses associated with raising children, mainly basic expenses related to dental and healthcare insurance premiums and work-related childcare.  The Child Support Worksheets can include extraordinary medical, dental, or counseling expenses not covered by insurance, as well as travel and communication expenses if the parents live at a distance from each other and extraordinary educational expenses.   

Using the statutory formula and income schedule provided in the Worksheets, a child support figure is computed.  As stated above, the payment is mandatory.  Deviation from the figure established by the Child Support Worksheets is rare and must be support by good cause, as defined in the statute.  The Guidelines state that a deviation from the child support figure is only justified in cases of extreme hardship, typically when one parent is forced to pay the other parent over 40% of their gross income, or some other compelling reason.  

The system is flawed and ignores many other expenses. These other expenses may include birthdays, holidays, or entertainment.  None are included in the Worksheets and must be addressed in a separate parenting plan.  However, any support requested beyond the figure established by the Guidelines and Worksheets is not mandatory and will be left to the discretion of the judge.   

New Mexico State Police Announce Crackdown

Posted on August 24, 2012 at 12:51 PM Comments comments (283)
The New Mexico State Police as well as other law enforcement agencies will begin a crackdown or "state-wide sweep" to round-up delinquent parents who are behind on child support. The crackdown is scheduled to begin Tuesday August 28, 2012.

New Mexico Offers Child-Support Amnesty

Posted on August 24, 2012 at 12:46 PM Comments comments (180)
New Mexico Offers Child-Support Amnesty

The State of New Mexico is once again offering a week of Amnesty for parents who are behind in paying child support. The Governor says that anyone with an outstanding bench warrant can go to any Child Support Enforcement Division field office to pay their bond amount without fear of arrest. Payment plans are available. The program runs from August 20-August 24.

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