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My Blog

Blog

What Do Judges Look at When Making Child Custody Decisions?

Posted on November 4, 2017 at 12:39 AM Comments comments (221)

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 (158)
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.

Grandparents and Child Custody Part Two

Posted on March 30, 2015 at 10:50 AM Comments comments (45)
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

Grandparents and Child Custody Part One

Posted on November 28, 2014 at 8:43 PM Comments 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.)

    • Kinship guardianship establishes a legal relationship between a child and a kinship caregiver and provides the child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally and emotionally...when the parents are not willing to do so.
    • Proceedings shall be in the court of the county of the child's legal residence or the county where the child resides, if different from the county of legal residence.
    • A kinship guardianship petition may be filed by a kinship caregiver; or by a caregiver who has reached his twenty-first birthday, with whom no kinship with the child exists, who has been nominated to be guardian of the child by the child, and the child has reached his fourteenth birthday, or a caregiver designated by a parent in writing.
    • After the petition is filed, the court may appoint a temporary guardian to serve for 180 days or less or until the case is decided on the merits, whichever comes first.
    • At the court hearing on the petition, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of the statute have been proven, and the best interests of the child will be served by the requested appointment, it shall make the appointment of guardianship.
    • A kinship guardian may be appointed only if:
      • A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn
      • A parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order
      • The child has resided with the petitioner without the parent for a period of ninety (90) days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extreme circumstances; and no guardian of the child is currently appointed.
    • A guardian has the legal rights and duties of a parent, except the right to consent to adoption of the child and rights and duties that the court orders retained by a parent.

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.

 

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

Posted on November 28, 2014 at 2:45 PM Comments comments (31)

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.

What is a Abuse and Neglect Custody Hearing?

Posted on November 14, 2014 at 12:09 PM Comments 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.