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|Posted on May 18, 2015 at 8:08 PM||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.
|Posted on May 11, 2015 at 9:23 AM||comments (40)|
Twelve “Secrets” to Getting the Custody Arrangement You Want
As a child custody attorney in New Mexico, I’ve heard it all. “Dad is always at least 20 minutes late picking up the kids.” Or “My ex won’t let me have any say in what happens to our girls.” Or, “I want 50-50 custody because it’s not fair that she should have the kids all the time.”
If a lawyer tells you that they can solve these problems instantly, run. The truth is, if you want 50-50 custody, or if you have a difficult ex who refuses to cooperate, there are powerful steps you can take to break past the impasse. Here are twekve “secrets” the most lawyers won’t tell you:
1. The Parent-Child Relationship is Paramount! The biggest mistake parents make in child custody cases is that they focus their energy on changing the other parent. You cannot teach a pig to sing. It frustrates you and annoys the pig. Take the focus off the other parent and you. Focus clearly on creating a quality loving relationship with your child.
2. All Arguments to the Court Must Be Focused on What’s in Your Child’s Best Interest. Make sure you express all your arguments for custody as child-focused “concerns” rather than attacks on the other parent. Frame everything not in the negative or what’s wrong with other parent but focus the judge’s attention on why it’s best for your children to spend more time with you or why it’s in their best interests that you be awarded primary custody. This of course will not necessarily apply in cases involving serious abuse and/or neglect.
3. Document everything! Keep a calendar and extensive notes of not only the case but the daily happenings with your child.
4. Child Custody is a Marathon, not a Sprint. Expecting the Court to fix your ex or side with you on every issue is unrealistic. Likewise expecting a quick Court date or speedy return to Court is likewise unrealistic and sets yourself up for disappointment.
5. Use the Time You Have! Many parents despair because they got a bad result in family court. Their typical knee jerk reaction is to order their lawyer to file yet another Request for Hearing, hoping that this time the judge will rule in their favor. A better strategy is to use the time you have to improve the parent-child relationship. You can do this even with supervised visitation. Remember, your children love you and want your attention and approval.
6. Learn to Compromise. The reason why you or the other parent is asking the Court to impose itself into your personal family life is because one or both of you cannot learn to compromise. Most of the time it’s best to come to some compromises with the other parent especially out-of-court agreements. This can not only save you thousands of dollars but your sanity as well. Even more importantly when you focus on what’s in your child’s best interests often times you can see past your own ego needs.
7. Be Prepared to Spend Money. Filing fees are relatively high; so are the costs of a process server and copies. All this and you will likely discover that an attorney is indispensable. Retainers are typically in the thousands of dollars and are basically deposits you pay a lawyer to represent you. Often times you will be ordered to split the costs with your ex for the guardian ad litem or custody evaluator. Bear in mind that every time a judge orders your lawyer to draft a minute order or review with opposing counsel a proposed stipulated order, the meter is running. Every time you ask your attorney to request a hearing and file another motion, fees have to be charged.
8. Learn the Law. Custody law comes from a variety of sources. Realize that Courts look to state statutes, previous rulings, federal statutes, case law, and of course their own experience and biases. It’s not your job to know and understand all of the law. Nobody really can. However, knowing the basics of the law is very important. Understanding what Courts look at and what is actually the “rules of game” will make presenting your case easier.
9. Take Photographs, Use Graphics, Tell a Story. A judge’s life is a boring one. Make the judge’s life more exciting by using photographs to tell your story. A picture is worth a thousand words.
10. Be Good. Behave. The Eyes of the World are Upon You. It sounds like plain old common sense, but when you’re stressed things happen. Be mindful of what you say in front of your children. Word gets back to judges, custody evaluators, and even law enforcement and it will be exaggerated. Always be careful at home and in public. This is no time to get a D.W.I. or Assault charge. Be careful in terms of how your new boyfriend or girlfriend acts if you have one. You are “unofficially” vicariously liable for how your new girlfriend/boyfriend acts especially in the presence of the kids.
11. Maintain a cordial professional demeanor when in Court. Do not stare at the other parent (mad dog). Never ever act disrespectful to the judge, the Court officers like the bailiff, the court reporter, or even the other attorney.
12. Retain an experienced child custody attorney. These types of cases are emotionally charged and tricky. In most cases you will benefit a hundred-fold from an attorney experienced in Family Law. Just as important find an attorney who has argued cases in the same Court as your case.
|Posted on March 30, 2015 at 11:35 AM||comments (53)|
New Mexico recognizes marriage between same-sex people. Our New Mexico Supreme Court "legalized" same-sex marriage in December of 2013. SeeGriego v. Oliver.
The Court said in an unanimous decision that it is unconstitutional to deny marriage licenses to gay and lesbian couples.
"We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law," Justice Edward L. Chavez wrote in the decision.
Several counties in New Mexico had already been issuing marriage licenses to gay couples, setting up the state Supreme Court to decide whether it was legal or not. New Mexico becomes the 17th state to legalize gay marriage.
The United States Supreme Court is expected to decide upon the legality of same-sex marriage in April 2015.
All that being said, in New Mexico the same set of laws providing for divorce and child custody apply to same-sex marriages and the same laws which govern custody will govern custody for same-sex couples. The 2012 case, Chatterjee v. King, provides among many things that parties in same sex relationships have the same rights to petition the Court for parentage, custody, and child support, as any other parent. This case is huge because when coupled with the Griego case, LGBT people enjoy the exact same legal schema for marriage, divorce, and child rearing as anyone else.
Additionally, nothing within the New Mexico adoption law prohibits same-sex couples from adopting. I have personally witnessed within the last sixty calendar days from today, a same-sex couple adopt two young children. These boys were part of the foster system for years and these two men took great care of them as fosters.
Here's some statistics. I realize it's not the freshest numbers but it's what I could find on point.
In April 2008, the Williams Institute of the UCLA School of Law, using data from the United States Census Bureau issued a "Census Snapshot" that concluded, "While in many respects New Mexico's same-sex couples look like married couples, same-sex couples with children have fewer economic resources to provide for their families than married parents and lower rates of home ownership."
Analyzing census data on same-sex unmarried-partner households, the report determined that:
Based upon my experience, I can personally attest to the fact that without same-sex couples and gay people volunteering themselves as foster parents, New Mexico child welfare would be in a far worse place. If you have any questions, please contact me.
|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 March 24, 2015 at 6:26 PM||comments (39)|
People frequently ask me who gets to keep the house in a divorce case. Theoretically the marital home is community property and is legally shared by both parties. However in real life it really boils down to who can realistically afford to pay for the home. In my experience, most of the time neither party can afford to keep the house.
One of the major causes of divorce in the United States is financial stress. And New Mexico is not immune. No big revelations but stop and think if money is what is underlying much of your marital discord, how realistic is it for you to keep the home? How much equity is in the home? Are you able to refinance without your spouse? Can you maintain paying the current monthly mortgage? What if the monthly payment is increased?
If it turns out that neither you nor your soon-to-be ex can afford the home, then what? If you are both able to agree to the value of the home and work together to sell it, all the better! You will reduce your expenses and likely the overall costs of the divorce. If not, then things aren't going to go so well.
When couples cannot agree about the value of the home the Court must decide. Things get even more complicated when parties dispute whether the residence is community property or whether a percentage of its overall value is separate property. This happens when your down payment is perhaps a gift from Mom or from an inheritance. Other factors which come into play are improvements and how they were paid for and of course the market.
The best thing is to try and work much of these details out with your spouse prior to actual litigation. If you have additional questions, please contact me.
|Posted on December 5, 2014 at 8:05 PM||comments (171)|
Here's a great article I just read from Princeton Law School...Hope you enjoy.
“On Thinking Like A Lawyer” Anne-Marie Slaughter (Used by permission of Harvard Law School; first printed in Harvard Law Today May, 2002)
You are now all well on your way to that magical state that is the end-product of your first year in law school: thinking like a lawyer. So what have we taught you?
Thinking like a lawyer means, in the first instance, thinking with care and precision, reading and speaking with attention to nuance and detail. It means paying attention to language, but also understanding that words can have myriad meanings and can often be manipulated. It thus also means paying attention to context and contingency. That is all part of the lawyer’s craft, or art, which is important both in itself and as a means to larger ends.
Thinking like a lawyer also means that you can make arguments on any side of any question. Many of you resist that teaching, thinking that we are stripping you of your personal principles and convictions, transforming you into a hired gun. On the contrary, learning how to make arguments on different sides of a question is learning that there are arguments on both sides, and learning how to hear them. That is the core of the liberal value of tolerance, but also the precondition for order in a society that chooses to engage in conflict with words rather than guns. It is our best hope for rational deliberation, for solving problems together not based on eradicating conflict, but for channeling it productively and cooperating where possible.
Thinking like a lawyer also means exercising judgment, distinguishing among those arguments, sifting good from bad. Just as you will come to understand that there are arguments made in good faith on opposing sides, you must also learn to reject some arguments, or at least to choose among them. Arguments may be bad because they are illogical, because they do not fit the facts or the law, because they are silly or inconsequential. They may also be bad because they promote bad policies, or because they reflect values that we condemn: racism, degradation of human dignity, greed -- you fill in the blanks. Learning to think like a lawyer means learning to reject some arguments and to embrace others, and to know and be able to articulate why.
Thinking like a lawyer means combining realism with idealism. It means believing in the possibility and the desirability of both order and justice, and in the capacity of the law to help us achieve them. But it also means knowing the full range of human conduct, and understanding that grand principles will remain paper principles unless they are implemented with an eye to human incentives. Nevertheless, in the end the idea of law, and the ideals that it stands for, is what lawyers represent. It is much harder to be an idealist when you have all the reasons to be a cynic.
One of my colleagues at Chicago ends her first year civil procedure class by saying: “Sometimes in the first year of law school, people learn to think like lawyers, but to be a little less like people. You’ve learned the first of those things. You shouldn’t let us teach you the second.” I disagree. There is no dichotomy here. Thinking like a lawyer is thinking like a human being, a human being who is tolerant, sophisticated, pragmatic, critical, and engaged. It means combining passion and principle, reason and judgment.
You are all well on your way to thinking like lawyers. It’s been both a pleasure and a privilege to help get you there.
|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 19, 2014 at 3:20 PM||comments (67)|
For many people, finding an attorney is a mysterious thing. That's because the average person doesn't hire an attorney everyday. But sometimes in life challenges surprise us and we find ourselves in need of a legal professional. Some examples are drafting a will or contesting a probate, starting a business, estate planning, an arrest by the police, automobile accident, civil law suit, and divorce and child support issues. So when these events pop up and we know we need a lawyer, how do we find one?
If you have a friend, family member, or other trusted person such as a minister, priest, or therapist, perhaps they have had some similar experiences and can refer you to someone they trust. Often that is not the case and people then are forced to search through phone books, internet searches, and television commercials to find an attorney. So here are some tips to help.
Attorneys specialize and it’s important to find someone who handles
your type of case; criminal defense attorneys represent people accused of crimes such as a DWI. Estate planners draft wills, create trusts, and help you decide what happens to your stuff when you die. And when you are facing divorce, child custody matters and child support, you should look for an attorney that focuses his/her practice on these types of cases.
Keyword searches on Internet are a good way to find some candidates; avoid
referral sites and directories, you don’t need a middleman who gets a portion of the fees.
Check out their websites and choose three or four attorneys who handle
your type of case. But don't get too caught up on their website; don't be overly impressed with the flash, beeps, and whistles. You should get a feel for the attorney, their qualifications and background, as well as learn something about the law as it relates to your issue by their website. You should be able to get basic questions answered such as contact info, office location, potential fees and costs, as well as testimonials.
Call all of them and ask to speak to the attorney and not just an appointment setter or staff member. Once you get the lawyer on the line, ask questions such as how long practicing, what percentage of their practice is this type of matter etc.
Lastly go and meet with them, ask more about the case, about how they will work with you, accessibility, fees, etc.
Bottom line, you need to choose the person that best resonates with you. This person is going to speak on your behalf and represent you and your interests. If the attorney guarantees results, only talks about money, or seems too good to be true, you should probably find someone else.
That should get you started. If you have any questions, please contact me.