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Top 10 Things Not to Do During Your Divorce

Posted on April 14, 2018 at 10:51 AM Comments comments (609)

Top 10 Things NOT to Do When You Divorce

Here are the top 10 tips on what to avoid when filing for divorce.

1. If you’re a woman, don't get pregnant. If you’re a man don’t get anybody pregnant.

Having a new baby during the pendency of your divorce is problematic. Not only is not healthy for you or the baby, but it can be off-putting to the Court should the judge find out. Likewise, if you’re a man, don’t get anybody pregnant. Although New Mexico is a no-fault state, the Court won’t be happy to hear that Dad has a new family in the making before he’s even divorced. Also, if you and your soon-to-be Ex are occasionally still on for an occasional “booty-call” beware! A pregnancy can only complicate an already complicated situation.

2. Don't forget to change your will and insurance.

Change your will! If you don’t update your estate plan, your Ex will have a legal claim to your estate in some circumstances. Be sure that you also change life insurance beneficiaries.

3. Now’s not the time to become promiscuous.

New Mexico is a no-fault state, so adultery is not legal grounds for divorce. However, in terms of determining custody, a parent’s behavior can be questioned and parents oftentimes find themselves under the microscope. Courts may frown on a parent’s home being open to new houseguests especially if the children are present.

4. Now’s not the time to discover substance abuse

Substance abuse is a leading cause of divorce and if your substance abuse was a cause of your divorce then perhaps you might want to work on that. Regardless, during the pendency of your divorce, alcohol and drug abuse are not things that will help. If you want a healthy relationship with your kids and hope to have visitation, then keep drugs and alcohol in check. Divorce lawyers love to argue to the judge that the other parent is dangerous to the children because of a recent DWI or rumors of hard drug use.

5. Don’t be a Bad Dad or Bad Mom. Be the best parent you can be.

Your kids are going to need you now more than ever. If you want to be the custodial parent then this is your moment to shine. You need to get or stay in your child’s life. Examples are getting to know the school, including the teachers and staff, visit your child’s extracurricular activities or encourage your kids to get involved in activities such as taekwondo, dance, scouting or gymnastics.

6. Don’t go it alone. Think about seeing a therapist.

There’s a couple of reasons to consider seeing a therapist. First, the divorce process can be emotionally grueling on a person. A good therapist can help you navigate through the mental and emotional challenges that everybody faces during these times. Secondly, many divorces are caused at least in part by such things as substance abuse, domestic violence, mental illness, and financial complications. A therapist might be a good resource to help you with some of these concerns. And lastly, a therapist can document your progress and fitness as a parent.

7. Don't Wait Until After the Holidays

You already know the holidays are going to be difficult. So why wait? Divorce lawyers often see a bump in business before, during, and after Christmas. It's also easier to get used to an empty home before the holidays.

8. Don't Forget About Taxes

Be sure to visit with a tax professional to determine the best tax strategies for you. This includes tax deductions for children, whether you should file “married separately” etc. These are not questions for your lawyer exclusively as most lawyers are not tax specialists.

9. Don't "Settle" Early

Of course, you want out of your marriage immediately but that doesn't mean you should forfeit your family’s financial security. Make copies of all of your important financial documents: pension statements, tax forms, credit card statements, and other records. It will help you become aware of what you own and even what you owe. This is all very necessary when it comes to the legal work that must happen during a divorce. This will make your divorce easier in that your attorney can already begin working on the financial disclosures. 

10. Don't Increase Your Debt

Divorce is expensive. On top of attorney's fees, you will need money to set up a new household. Although the law permits temporary division and allocation of assets to ensure that each party isn’t destitute, this process can take awhile and it can take even longer before you receive your first check from your soon-to-be- Ex if the Court even awards an equalization in your favor. Also, you will be responsible for half of the expenses during the divorce such as real estate professionals, tax professionals, custody evaluators, etc.

I'm sure you may have additional questions. Please contact me and I'd be more than happy to discuss your case.

 

What Do Judges Look at When Making Child Custody Decisions?

Posted on November 4, 2017 at 12:39 AM Comments comments (222)

In my fifteen years of experience, I have found that courts (not always to be sure) try to make child custody decisions based on what is in the child’s best interest; simple as that.

Typically, the judge weighs a number of various interrelated factors. While the factors vary from state-to-state, they may generally include:
  • The strength of each parent-child relationship. This is called "bonding". Sometimes a judge will hear evidence about the parent-child bond through a therapist's testimony;
  • The emotional and developmental needs of the child. This too often comes from a therapist or other expert testimony;
  • The age and health of the child and parents;
  • The stability of each parent’s home environment. This is called "safe and stable appropriate housing";
  • The child’s connection to his or her community and current school. This includes extracurricular activities;
  • Each parent’s ability and willingness to care for the child’s physical and emotional needs as well as display protective capacity and appropriate decision making;
  • Whether the parents are willing to cooperate and co-parent, and
  • Any evidence of child abuse/neglect or domestic violence, especially in the presence of the children;
  • Substance Abuse;

Depending on the circumstances of your case, the court may award sole legal custody or joint legal custody. The court will also award a primary custodial parent if 50-50 is not ordered. The non-custodial parent will also be ordered to pay child support unless a deviation can be shown.

While some states favor joint or shared custody, others prefer that one parent has primary custody of the child (while the other parent has visitation rights). New Mexico prefers JOINT LEGAL CUSTODY. New Mexico law prefers co-parenting. If you need help understanding how your state handles child custody issues, contact  me.

The Judge Just Ordered Us to Hire an Advisory Consultant. What the Heck is That?

Posted on November 4, 2017 at 12:21 AM Comments comments (163)
If your custody case is OUTSIDE of Bernalillo County, chances are, at some point someone will mention an Advisory Consultant. In Bernalillo County, oftentimes families/parties are referred to the Court Clinic. The Court Clinic plays an integral part in custody decisions in many cases. However what happens when you don't live in Albuquerque?

If your case is in Valencia County, Sandoval County, or Cibola County you don't have access to a court clinic to help determine custody arrangements. Instead when parties reach an impasse they may be ordered to meet with an "Advisory Consultant". This is a third party who interviews the parties, the children, sometimes teachers, grandparents, and other "collateral" witnesses.

The Advisory Consultant will then issue a written report and recommendations. The court will usually adopt these recommendations without a hearing. If a parent wants to contest the recommendations, the parent must file objections within ten days.

In the 13th Judicial District which encompasses the above named counties, the court will pay a portion of the Advisory Consultant's fees. An Advisory Consultant or similar mechanism is used in many of the district courts outside of Albuquerque.

An Advisory Consultant is not the same as a Guardian Ad Litem. A GAL is an attorney with experience in child abuse/neglect and contentious custody cases. The GAL represents the child. 

An Advisory Consultant is usually not a lawyer but a trained mediator. This person is tasked with crafting a parenting plan which both parents will hopefully accept and is ultimately in the child or children's best interests.

The point of an advisory consultant or other similar option to provide parents with something akin to a custody evaluation without the huge expense and hopefully contention.

If you further questions, please contact me.

Do You Need a Lawyer for Your Child Custody Case?

Posted on November 3, 2017 at 7:08 PM Comments comments (160)
One question people ask me is whether they need an attorney to represent them in their child custody and/or family law matter. Short answer...Nope! You do not need a lawyer to represent you.

In the United States and New Mexico specifically, you do not need a lawyer to represent you. You have a right to represent yourself in court. You can go to court, file pleadings, and argue your case. Many people do. I know this because they hire me to fix the mess.

Truth be told, many people have represented themselves in court and some folks have done pretty well for themselves. But the sad fact is most people don't fare so well. Despite the fact that various NM Supreme Court approved forms are available online, knowing how to fill out those forms can be very confusing. The district courts oftentimes host various family law clinics. However an hour seminar is not the same as years of experience in the court room.

Under New Mexico law judges are to treat people representing themselves called being a pro se litigant, the same as if these people were lawyers. That means the judges will hold a pro se litigant to the same standards as a professional attorney. In short, a pro se litigant will be expected to know the various court rules of evidence and procedure as well as proper decorum. The parent who represent themselves will be expected to understand the applicable law and must be able to draft legal paperwork.

But one of the biggest services you get when you hire a lawyer is a professional advocate who filters much of the emotional stress for you. Many people sabotage their case by being overly "emotional" in court. Typically the other parent or their lawyer strategically pushes your buttons helping to elevate an already explosive situation. Often judges view this against you! They think you are possibly unfit as a parent simply because you displayed feelings; feelings after being pushed to the edge in court. That's where a good family law or custody lawyer comes in. They shield you from much of this and tell your side of the story.

When you retain an attorney not only are you paying for someone to prepare and file paperwork, but an experienced professional who is not only familiar with the law, but just as importantly your lawyer must have rapport with the court and an ability to craft solutions creatively. Creative solutions without all the emotional baggage and hostility.

If you have questions please feel free to call.


Where do Child Custody and Child Support Law Come From?

Posted on June 16, 2015 at 8:37 AM Comments comments (127)

Where do Child Custody and Child Support Laws Come From?

People ask all the time, where do child custody and child support laws come from? Are the laws in each state completely different? Are these laws even constitutional? Let’s find out.

Family law in the United States comes from several sources. Primarily, family law is a state affair and much of the laws governing child custody and child support are state statutory law. These laws are found in each states’ codified statutes and/or codes. In New Mexico, we have Chapter 40 of the New Mexico Statutes Annotated 1978. This is the “Domestic Affairs” section of the state statutes.

These various statutes are interpreted first by the district courts or trial courts of original jurisdiction and then these laws are further applied and interpreted by the appellate and supreme courts of the several states, commonwealth(s), possessions, and territories. Not only are these laws created by state lawmakers, applied and interpreted by state courts, but these laws are applied in conjunction with state court procedural rules such as the rules of evidence and the rules of civil procedure.

 We also have children’s court rules, decisions, and of course the court orders issued in everybody’s individual cases such as the divorce decree, and the plethora of minute orders and temporary orders which typically are issued in an average case.

So the first thing we must understand is that in the United States, family law especially as it relates to child custody and child support is for the most part under the purview of state law. The United States Supreme Court in Rose v. Rose, 481 U.S. 619, 625 (1987) (quoting In re Burrus, 136 U.S. 586, 593-594) repeatedly insists that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” This line of thinking comes from the Amendment 10 of the federal constitution which provides, “the powers not delegated to the United States by this constitution nor prohibited by it to the States, are reserved to the States or the people.” This of course is an overstatement and an oversimplification, yet is still generally true.

Yet over the last hundred years or so, the federal government viz. various social welfare and educational policies, federal courts, and believe it or not, international treaties have changed the landscape of modern family law by means of slowly unifying the hodge-podge state laws. In recent times the United States Supreme Court began to recognize “a private realm of family life which the state cannot enter.” SeeMeyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Prince v. Massachusetts, 321 U.S. 158, 166 (1944).  

The Supreme Court has attributed this constitutional protection to the Due Process Clause or the Equal Protection Clause of Amendment 14 of the federal constitution. They have also cited to implied rights of privacy emerging from the “penumbras” of other textual guarantees. SeeGriswold v. Connecticut, 381 U.S. 479 (1965).

One of the key cases where the United States Supreme Court has helped to change the dynamics of family law was Loving v. Virginia, 388 U.S. 1 (1967). This case outlawed the ban on interracial marriage and reversed the laws of 17 states which prohibited interracial marriage. This case is frequently cited in same-sex marriage litigation.

Very recent judicial lawmaking with respect to same-sex marriage has been based upon equal protection and in the case of New Mexico, our equal rights provisions within our state constitution. This is how the federal courts have intervened in a seemingly state issue.

 There are federal laws which affect family law as well. Most of those which will directly play in your case are likely federal tax laws, federal child welfare laws, and in many cases Medicaid, Social Security, and TANF  rules and regulations. However you should be aware of federal child support enforcement laws, federal deadbeat parent laws, and kidnapping laws. Lastly, depending upon your circumstances, federal and tribal laws may play a role in your child custody or child support case.

Despite these federal developments, much of family law including custody law is local. We discussed earlier that most family law is state statutory law. This law is derived from state constitutional provisions. However we often forget that even local city and county zoning ordinances have an impact upon family because they define “single-family” uses and other residential definitions.

The laws affecting family law especially child custody and child support are ever changing and complex. The best thing to do if you have further questions is to contact me.

 

What to Do If the Other Parent Isn't Paying Their Child Support Obligation

Posted on June 9, 2015 at 7:01 PM Comments comments (72)

What to Do If the Other Parent Isn’t Paying Their Child Support Obligation

First, Get It in Writing!

In all fifty states, child support obligations are created by court orders. You probably got your child support order as part of a divorce or previous child custody/child support case. Even if you didn’t go to court in person—which can happen in cases where the parties reached an out of court stipulated agreement, there should still be something in writing. That’s your starting point. Even if you’d rather resolve the issue out of court, a court order gives you something to legally enforce. That’s leverage.

If you never made a formal written agreement with the other parent, it’s time to go to court. Without anything in writing, there’s literally nothing to enforce. A government child support enforcement agency, in New Mexico we have the New Mexico Child Support Enforcement Division can often help you get an order, or you can hire an attorney.

Are you able to talk to the other parent? You don’t have to start by talking with the other parent—but based upon years of experience, I certainly recommend that you try. Negotiating is quicker than any collection effort, less likely to create bad feelings and far cheaper than a court case. For those reasons, it’s usually in the best interest of the children. But don’t do this if you can prove your ex is lying about his or her finances, when there’s a pattern of domestic violence or other abuse, or a history of deceit. 

Even if you do agree on changes to your written agreement, you should spell them out and get your agreement approved by a judge. Remember, if there’s no court order, your rights under the new agreement aren’t enforceable. Attorney fees for an uncontested change in a support order should be relatively modest.

If the other parent can’t pay the full monthly amount, agree to accept at least partial payment. Not that you want to let them off the hook completely, but something is better than nothing. And if they are genuinely cash-strapped, it may be better for everyone if he or she gets the child support reduced. You can always modify the obligation in the future when circumstances warrant.

All states have anti-retroactive modification laws. That means that a modification of child support can't be made retroactive beyond the date of the filing of a motion in court. There are of course exceptions. In New Mexico retroactive child support can be ordered in cases where a Petition to Establish Parentage has been filed pursuant to the New Mexico Uniform Parentage Act. 

So let’s say you have a court order establishing a child support obligation compelling the other parent to pay you and you know want the Court to enforce it. How do you do that? You must file a motion to enforce child support order. There may be other procedural motions that must be filed as well. Nevertheless, the main motion is the motion to enforce.

Once you are in front of the judge and if you are successful your motion will be granted and you will have an order enforcing payment of child support. At this point you can ask the judge to help you garnish the other parent’s wages. The judge signs off on a wage withholding or garnishment order which you will then need to present to the other parent’s employer(s). Your state child support enforcement office can also help you. Of course in serious cases, you might ask the judge to incarcerate the other parent for contempt of the court order.

In some states there are mechanisms for levying a lien against the other parent for outstanding child support. Other states provide for criminal sanctions. The federal Deadbeat Parent Punishment Act can also be used in all fifty states. You might also be successful in intercepting their tax refunds.

You can contact the Office of Child Support Enforcement which is part of the Administration for Children and Families within the United States Department of Health and Human Services. This program is a federal mechanism which can assist you. There is also the United States Inspector General’s office.

The U.S. Office of the Inspector General (OIG) can intervene in child-support cases where the non-custodial (paying) parent lives in a state other than where the child lives, and:

  • refuses to pay child support for over 1 year
  • where the amount owing is more than $5000, or
  • where the non-custodial parent travels to another state or country to avoid paying child support.

The punishment include fines and up to 6 months in prison (or both) for a first offense. For a second offense, or where child support hasn’t been paid for more than 2 years, or the amount owing is more than $10,000, the punishment is a fine of up to $250,000 or 2 years in prison, or both. 

One caveat to all of this and that is consider the following…If you have the non-custodial parent’s driver’s license, or professional licenses suspended it will be extremely difficult for them to get to work or even keep their present jobs or professions. If you have them arrested they certainly cannot work. If they cannot work, they cannot pay you child support.

One last point to consider, if you help maintain the other parent in your kids’ lives, if you allow for co-parenting, the non-custodial parent is more likely to want to pay their child support obligation. Right or wrongly, they will feel they are getting something for their money. Co-parenting is a good thing and it’s most cases in your child’s best interests

How to Modify Child Support

Posted on June 8, 2015 at 4:14 PM Comments comments (63)

Most people would agree that parents should be financially responsible for their children at least to the best of their abilities. Child support amounts can be modified if situations warrant. In most jurisdictions and New Mexico is no exception, child support can be modified whenever there is a change in circumstances. The parent alleging the change in circumstances has the burden of proving that there has been a "significant change in circumstances."

In New Mexico, anytime there is a significant change in custody, you should have an attached child support worksheet. § 40-4-11.4(A) NMSA 1978 provides: "A court may modify a child support obligation upon a showing of material and substantial changes in circumstances subsequent to the adjudication of the pre-existing order. There shall be a presumption of material and substantial changes in circumstances if application of the child support guidelines in §40-4-11.1 NMSA 1978 would result in a deviation upward or downward of more than twenty percent of the existing child support obligation and the petition for modification is filed more than one year after the filing of the pre-existing order."

A 20% change in support and a year wait are fairly significant changes for a Court to entertain a child support modification. Generally, if any moderately significant provision of child custody changes, then the court will also draft a new child support worksheet. Many courts will also review child support simply if it has been a significant period of time since the child support obligation was put in place.

In order to get the Court to reconsider and possibly modify child support, you have to first file a motion with the Court outlining the grounds for granting a modification to the current child support. Grounds must be within the criteria outlined in the statute cited above. This is generally the rule in whatever jurisdiction your case is in.

By the way, the statute also provides in § 40-4-11.4(B) that parents are obligated to exchange financial information each year if one of them requests it. The information includes Federal and State Tax Returns, 1099s, W-2s, information about daycare, and medical expenses. You can also ask the other parent to provide more information. This is done by means of sending the other parent interrogatories and requests for production.

The information you request must be rationally related to the questions of child support, income, and budget unless the scope of your evidentiary hearing is beyond the issue(s) of child support. This gathering of information is called the “Discovery Process” and it is provided for in the Rules of Civil Procedure and elsewhere.

One caveat, if you are trying to keep the costs of litigation and attorney fees in check, you may wish to consider limiting discovery to only those items, questions, and pieces of information and other evidence which are essential to the upcoming hearing. Fishing expeditions, attempts to bog the other parent down in paperwork, and being overly a pain in the neck will be costly to you in the end.

 

Who Gets to Claim the Kids for Taxes?

Posted on May 18, 2015 at 8:08 PM Comments comments (39)

Who Gets to Claim the Kids for Taxes?

The issue comes up often. Who gets to claim the kids for tax purposes? It’s an important question because the answer equals big money. There are many tax benefits with respect to claiming a qualified child as a dependent. For the calendar year of 2015, claiming one’s child as a dependent reduces one’s taxable income by approximately $4,000. Another possible tax benefit is the Child Tax Credit, which is worth up to $1,000 for each child under the age of 17; bear in mind there aree certain eligibility requirements that are based on the parent’s adjusted gross income. The final tax benefit includes the ability to claim a credit up to approximately $2,100 for qualified child care costs. When you file separately you face a potential problem because only one parent can ultimately claim the child. Because of this, single parents, and married parents that are going through a divorce and choose to file separately, often fight over who can claim the kids as a tax deduction.

According to the Feds, the parent with the most custodial time gets the tax relief. IRS Publication 501 covers exemptions, standard deductions and filing information explains that an individual may claim a child as a dependent on his or her tax return if the child resides with that individual “for more than half of the year. . . .”

Despite this, in New Mexico our courts allow single parents to alternate the years that each parent can claim the child as a dependent; provided that the parents have joint legal custody and child support is up-to-date. This reading of the IRS regulations was highlighted in a New Mexico Court of Appeals case, Macias v. Macias, 126 N.M. 303. In Macias, the trial court awarded Mother primary custody of the parties’ three children, and ordered the Father to pay child support. The court also allowed Father to claim two of the three children for tax deduction purposes, despite the fact that Mother had primary physical custody of the children. Mother appealed the trial court’s ruling, arguing that “. . . federal law controls and that the court had no choice but to allow Wife, as the custodial parent of all three children, to receive the exemptions for each child regardless of support payments."

The New Mexico Court of Appeals ultimately upheld the trial court’s ruling, reasoning that the federal law does not prevent a state court from alternating or distributing the right for parents to claim children as dependents for tax purposes. In practical terms that means that New Mexico courts are not bound by the IRS and have the legal ability to reach a decision based on what it believes is fair, equitable and of course what’s in the best interests of the children. This is important to know before you walk into Court. This is general legal information. If you have further questions regarding taxes, please consult a tax professional.

 

Custody and the Single Dad

Posted on March 24, 2015 at 7:59 PM Comments comments (88)
What do you do when the "baby's momma" doesn't want to let you have visitation? I get this question a lot from guys who are dads but aren't married to the mother of their child(ren). In fact, I was just in Court dealing with this common situation just yesterday.

Oftentimes couples believe they can work things out without formalizing anything. I will ask a client if they have an actual parenting plan drawn up with the other parent. Most times they do not. People simply assume they have inherit parenting rights. When they don't get their usual visits with their kids like they are used to, they call law enforcement who's hands are tied. Nothing can be done because there's no Court sanctioned parenting plan.

The first legal course of action is to file what's called a Petition to Determine Paternity,Timesharing, and Child Support. A filing fee of $137 is usually required along with the necessary request and notice of hearing. The Court will schedule a hearing and begin the legal process.

The first issue is paternity---legally deciding who the biological father is. This is done either by agreement, the birth certificate, or DNA. Once the Court determines that Dad is Dad, the next issue is deciding a parenting plan/timesharing.

In New Mexico, the law favors joint legal custody which means that both parents have a say in the upbringing of their children even if the parent doesn't have physical custody. Both parents are to be involved in deciding medical care, education, religion, social and extracurricular activities, etc. The parenting plan outlines these details and contains timesharing.

The timesharing schedule contains the nut and bolts of the actual custody arrangement. Timesharing can be manipulated without substantively changing custody. Although they sound alike, custody and timesharing aren't quite the same thing. Custody is a legal status while timesharing is the visitation schedule.

Alongside the custody portion of the case is also child support. The law presumes that parents will support their children financially. Child support is determined using a worksheet. An online worksheet is available on the New Mexico Department of Human Services website. Worksheet A is utilized when one parent is the primary physical custodian. Worksheet B is used in cases of 50/50 custody.

Child support is roughly 17% of the noncustodial parent's gross income for one child and up to 19% or so for more children. There's a lot more that goes into it but that's a rough rule of thumb. The Court can deviate from the statutory requirements in some unique circumstances. Folks on certain social security disability can exclude this income from child support calculations. And finally the Court can impute your income if you're underemployed. That means they can assume you are earning min. wage even if you're out of work. A child support worksheet must be attached to the custody order so custody, timesharing, and child support are addressed in these cases.

Sometimes the custodial parent refuses to allow the other parent visits because of unpaid child support. This is unacceptable and it's unlawful. When this happens it's time to go back to Court. The law is ever changing and the stakes are high---they're your kids. It's important to begin this process if you haven't done so. Without a formalized parenting plan and custody arrangement you have no vested rights!

If you have further questions, please contact me.

What is "The Best Interests of the Child" Standard?

Posted on November 28, 2014 at 2:45 PM Comments comments (32)

The Best Interests of the Child Standard

The underlying goal for any children’s court judge or family court judge is to determine what’s in the best interest of the child or children. They do this in every child custody decision, every child support determination, and in CYFD abuse and neglect cases. Parents believe their ideas, goals, and plans are in their child’s best interests. Lawyers draft motions and advocate for what they believe is in the best interests of child-client or in the best interests of their clients’ children. And of course, psychologists, teachers, therapists, guardians ad litem, and a host of other professionals submit reports, observations, recommendations and proffer testimony all trying to figure out what’s in the child’s best interests.

What does the “Best Interests of the Child” standard mean?

Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. “Best interests” determinations are generally made by considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern.

In New Mexico, our state statutes in the form of two passages from the Children’s Code provide this as guidance:

N.M. Stat. Ann. § 32A-4-28(A)  In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.

N.M. Stat. Ann. § 32A-1-3 The Children’s Code shall be interpreted and construed to effectuate the following legislative purposes:

• First, to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code, and then to preserve the unity of the family, whenever possible

• To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced

 • To provide a continuum of services for children and their families from prevention to treatment, considering, whenever possible, prevention, diversion, and early intervention, particularly in the schools

• To provide children with services that are sensitive to their cultural needs

• To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention, and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim

• To provide continuity for children and families appearing before the family court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family The child’s health and safety shall be the paramount concerns. Permanent separation of the child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit.

This is quite the laundry list of factors for the Courts to consider when deciding these types of complicated cases. We can see that Courts are to consider not only the basic needs of the child or children such as housing, food, medical care, and education, but also cultural and community concerns as well. Clearly this is a very broad list of factors for the Court to examine when it considers such things as parenting plans, physical custody, child support, and even more mundane questions such as which school will the child attend? Which church shall they attend? Which extracurricular activities are best for the child?

Decisions to these questions are seldom made very quickly. That means that Courts seldom make these types of decisions in one or two hearings. This is why this type of litigation is both costly and time consuming. Because these types of cases are very emotionally loaded and legally complex, oftentimes it’s best to seek legal representation. Please contact me and I can explain how to keep costs low and judicial involvement in your family’s lives to a minimum.


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