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|Posted on March 30, 2015 at 10:50 AM||comments (46)|
There are three conditions where grandparents can petition the Children's Court for custody of their grandkids. The New Mexico Grandparents Visitation Privileges Act provides the following scenarios:
We discussed one of those scenarios in our November 28, 2014 installment. That article focused on the Kinship-Guardianship process whereby grandparents can petition for custody and guardianship for their grandchildren in cases where the biological parents have left the children with grandma and grandpa for an extended period of time and with no real end in sight.
The second scenario is pretty easy to understand and that's when the child's or children's parent dies leaving the grandparents as the children's only suitable family to parent them. Sometimes this situation is covered in the biological parent's will or estate plan. Oftentimes it's not and the parent's death is quite unexpected.
The third situation is during any legal separation, divorce, or paternity case involving the children. For example, the parents are divorcing, grandparents can basically intervene in the case and petition the district court for custody of the children.
These scenarios are just that and do not guarantee that the grandparents will prevail. The Court must consider what is in the best interests of the child, the very same standard that the Court applies in all cases dealing with child custody. Often grandparents will need to prove through expert testimony why the Court should grant them custody as opposed to one of the biological parents or perhaps another intervening grandparent(s).
Another situation is a pending child abuse/neglect case. If the children are taken into CYFD custody because of allegations of suspected abuse/neglect by the biological parent(s) the grandparents can contact CYFD and fight for custody. In these types of cases there's a presumption that the child should be staying with blood relatives such as grandparents. The basic caveats are that the grandparents can provide a safe environment etc.
If you have additional questions, please contact me. Thanks
|Posted on March 24, 2015 at 7:59 PM||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.
|Posted on November 28, 2014 at 8:43 PM||comments (109)|
Grandparents and Child Custody Part 1
The Holidays seem to bring out the questions in people and a couple of folks have asked about their rights as grandparents when it comes to physical custody of their grandchildren. Sometimes children are left with grandparents, aunts and uncles, or other family members by the child’s parent for one reason or another. And usually this is done in the best interests of the child or children. What do you do when a weekend becomes six months and mom or dad are nowhere in sight? What can a grandparent do to protect their grandkids when they know the parents are engaged in dangerous or immoral behavior?
The New Mexico Kinship Guardianship Act Kinship Guardianship (NMSA §40-10B-1 et seq.)
The statute is meant to address the issue of when parents leave their children with their parents, siblings, or friends. The law helps the new guardians protect and care for the children while the parents are “taking a time-out” for lack of better terms. If the parents fight the petition, they must appear in Court. A guardian ad litem is appointed to represent the child’s best interest or the teenaged child. The Court then must decide what is in the child’s best interest while considering the petition for kinship-guardianship.
But what if the above scenario is not the case? What if your daughter is an unfit mother and who knows where dad, what then? Find out in our next installment.
|Posted on November 28, 2014 at 2:45 PM||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.
|Posted on November 14, 2014 at 12:09 PM||comments (24)|
I represent many people including children in child abuse and neglect cases. These cases have increased dramatically in recent years and the television news and newspapers publicize many of these cases. Because these cases are very unique in terms of the law and rules governing them, most people simply are not familiar with the nuances of the law including most lawyers.
The custody hearing which is the first legal proceeding held at the initiation of the abuse and neglect case. This hearing must be held within ten days of CYFD filing an ex parte order and taking a child or children into custody. The hearing is designed to advise respondent parents and caregivers of their legal rights and further to determine whether CYFD had probable cause to take custody of the children.
This last point is very important because many people including attorneys misunderstand this and believe the hearing is to determine whether probable cause exists to continue with the adjudication of the respondents. The law covering this is Section 32A-4-18(A) through 18(C) NMSA 1978.
These hearings are closed to the public and typically respondent parents, their attorneys, respondent caregivers if any, the Children's Court Attorney and witnesses are the only people allowed to appear before the Court.
The Court must advise the respondents of their rights which include: notice of the allegation(s) contained in the Petition; the right to an adjudicatory hearing on the allegations contained in the Petition; the right to an attorney; lastly the possible consequences of the process including potential termination of parental rights.
The law requires that CYFD make reasonable efforts to reunify the family if possible. This includes facilitating visits between parents and children if the Court determines that probable cause exists and CYFD should continue to have custody of the kids.
The Rules of Evidence do not apply in these hearings! This can be challenging in practical terms and esoterically. Realistically this means that "hearsay" evidence and non expert testimony comes in as well as other evidence which often times would be inadmissible in an actual civil trial.
The guiding principal in these hearings and in just about all legal custody matters is what is in the best interests of the child. This standard is more elusive than quantified.
For more information, contact me.
|Posted on November 6, 2014 at 5:49 PM||comments (315)|
This week I had a young client ask me the details of emancipation which means basically becoming an "adult" in the eyes of the law. As everyone knows, the law of majority in New Mexico is 18. Yet there are some circumstances in which a teen can become a legal adult before reaching their 18th birthday. Here's what New Mexico law says:
A child can become emancipated once the child reaches the age of 16 and meets one of the following requirements: validly married, or on active military duty, or been declared "emancipated" by the district court. What does this mean in practical terms?
A child may be legally married at the age of 16 with parental consent. Technically a child can be allowed to be married even younger with a Children's Court order allowing the marriage.
The second condition is active military duty. Children may enlist into the US Armed Forces when they are 17 if there's parental consent. However, it's my understanding that service members who have not obtained the age of 18 cannot be deployed overseas.
Lastly a child may petition the Children's Court which is part of the District Court. The child must prove that they are willingly living apart from their parent(s) and/or guardian(s) and the child is managing his/her own financial affairs e.g. working at a job. Lastly the Court must find that granting the petition is in the child's best interest.
As you can see, emancipation of minors isn't something the law favors. Please be sure to consult a qualified custody and family law attorney if you have further questions.
|Posted on August 22, 2013 at 7:52 PM||comments (20)|
Tips for Non-Custodial Parents and Infant Visitation
Almost all parents want as much time with their children as possible. Many times, potential clients approach me wanting overnight visits with their very young children. I remind people that under the law, Courts seek to determine what's in the best interests of the child. Judge's look to psychologists and clinicians to help them determine the best custody arrangements. The age of the child is fundamentally important. Courts are very aware of children's attachment and nurturing needs.
A recent study from the University of Virginia confirms what many other studies and custody evaluators have concluded: small children for instance, infants require far more time with their primary caretaker than with the non-custodial parent. The University of Virginia study found that 43% of infants experienced attachment issues as a result of weekly overnight stays with the non-custodial parent compared with 16% of babies who had even less frequent overnight visits. Basically the bottom line is that babies need to spend the night with their primary caregivers.
Here are some tips for non-custodial parents of babies:
1. Understand that weekend visits and overnights may not be appropriate for your baby.
2. Consider negotiating for more consistent and frequent day-time visits instead of overnights.
3. Understand that your parenting plan should be updated as your child gets older and overnights can be incorporated when your child is more mature.
4. Consider that spending less time now with your child may result in much higher quality time with them later as they get older and circumstances change.
5. Just because your child spends more time with primary caregiver doesn't make you less of a parent.
Whether you are the custodial parent/primary caregiver or the non-custodial parent, an experienced Custody Attorney can help you craft a parenting plan that is both in your child's best interest and yours.
|Posted on August 1, 2013 at 1:15 PM||comments (35)|
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.
|Posted on July 18, 2013 at 7:59 PM||comments (25)|
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.
|Posted on June 5, 2013 at 4:24 PM||comments (99)|
Termination is involuntary—the Courts take awaysomeone’s parental rights despite that person’s objection. However the reasoning the Courts use is very similar. You can see how the distinction disintegrates in reality. This is because whether termination o r relinquishment, the Courts look for only two circumstances whereupon parental rights can be divested: abuse and neglect cases and private adoption.
The first instance is typically handled by the Department of Child Youth and Families. For instance, CYFD receives a complaint about a parent and investigates and further determines there’s adequate evidence of abuse and/or neglect to justify petitioning the Courts for termination of parental rights. In the second instance, termination procedures can be initiated when a child is in the process of being adopted. Below is a portion of the law outlining the procedure. You will note that it is geared for either the CYFD track or private adoption. In essence, the following provides what is required in a petition to terminate parental rights.
Section 32A-5-16 Termination procedures
A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following:
(1) the department;
(2) an agency; or
(3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem or attorney in another action,a foster parent, a relative of the child or the child.
B. A petition for termination of parental rights shall be signed and verified by the petitioner, be filed withthe court and set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the grounds for termination and the facts and circumstances supporting the grounds for termination;
(3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred;
(4) the basis for the court'sjurisdiction;
(5) that the petition is incontemplation of adoption;
(6) the relationship or legitimate interest of the applicant to the child; and
(7) whether the child is an Indian child and, if so:
(a) the tribal affiliations of the child's parents;
(b) the specific actions taken by the moving party to notify the parents' tribe and the results of the contacts,including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attachedas exhibits to the petition; and
(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian ChildWelfare Act of 1978 or the placement preferences of the appropriate Indiantribes.
C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, the individuals with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure[1-001 NMRA] for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served shall file a written response to the petition within twenty days if the person intends to contest the termination. In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978.
D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for anorder granting service by publication or an order stating that service by publication is not required. A motion for an order granting service by publication shall be supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent.Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004[NMRA], the court shall order service by publication or order that publicationis not required because the parent's consent is not required pursuant to theprovisions of Section 32A-5-19 NMSA 1978.
E. The court shall, upon request,appoint counsel for an indigent parent who is unable to obtain counsel or if,in the court's discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys.
F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [32A-4-1 NMSA 1978] shall represent the child in any proceedings for termination of parental rights under this section.
G. Within thirty days after thefiling of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.
H. The grounds for any attempted termination shall be proved by clear and convincing evidence. In any proceeding involving an Indian child, the grounds for any attempted termination shall beproved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978.
I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption. In any termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings that the requirements of the federal Indian ChildWelfare Act of 1978 were met.
J. A judgment of the court terminating parental rights divests the parent of all legal rights. Terminationof parental rights shall not affect the child's right of inheritance through the former parent.
What is important to note is that there must bea step-parent adoption.
Thus, the legal termination of parental rights must follow the procedures outlines in the law above. There are, however, ways of attempting to model an order that achieves a similar end without an adoption or abuse and neglect etc.