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

Posted on November 28, 2014 at 2:45 PM Comments comments (36)

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.

How to Find the Right Lawyer

Posted on November 19, 2014 at 3:20 PM Comments comments (167)
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.

What is a Abuse and Neglect Custody Hearing?

Posted on November 14, 2014 at 12:09 PM Comments comments (118)
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.

Sperm Donors and Child Support

Posted on November 7, 2014 at 3:14 PM Comments comments (126)
A couple of weeks ago, a client told me that he had been approached by a lesbian couple who were dear friends of his and asked whether he would be interested in helping them have a baby. This fellow would only have to provide the sperm and using the traditional method so no medical professionals would be used.
 
The client asked whether he would be liable for paying child support under New Mexico law. Here's the answer...
 
Maybe.
 
In New Mexico, biological parents are required to provide for their children. Even if the parents never marry or if there was no planning of conception, parents are still required to provide support for their kids. However, the New Mexico Court of Appeals has ruled that in cases where the mother was artificially inseminated by medical professionals and the sperm donating father was merely that, a simple donor, the father will not be required to pay child support.
 
The situation becomes murkier in cases where the parents did not use professional medical care such as in private agreements between parties such as the one my client was about to enter. In cases like this, the courts look to see whether there has been any development of a parent-child bond, whether the father holds the child out as his own, and various other conditions. Problems can emerge even when everything is written down on paper.
 
So yes it's possible for sperm donors to pay child; maybe. If you have further questions, please contact an attorney.

Minors and Emancipation

Posted on November 6, 2014 at 5:49 PM Comments comments (518)
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.

Divorce vs. Legal Separation

Posted on October 29, 2013 at 12:20 PM Comments comments (84)
Recently a new client approached me about the differences between a divorce and legal separation. Often times legal separation can be an effective mechanism for people who are experiencing some very unique circumstances.
 
Despite what one might glean from the internet or television, in New Mexico legal separation and divorce are very similar. The basic underlying difference is that in cases of legal separation, the parties are unable to remarry. In other words, legal separation divides property, assets, debts, etc. and it also carries with it custody and child support ramifications. However it does not end the romantic relationship legally as a divorce does.
 
Courts see legal separation as basically a quasi-divorce without the name change. Legal separation is a divorce without the termination of the actual marital relationship.
 
Sometimes people choose to separate legally for religious purposes, insurance, tax, and other purposes. If you are considering a legal separation in lieu of a divorce, please consult an attorney before filing anything.

Tips for Non-Custodial Parents and Infant Visitation

Posted on August 22, 2013 at 7:52 PM Comments comments (27)
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.

Five Tips to Help Your Divorce Lawyer Effectively Represent You

Posted on August 22, 2013 at 6:29 PM Comments comments (264)
This is a great article and I thought I would share it here.
 
Five Tips To Help Your Divorce Lawyer Effectively Represent You
Posted on April 10th, 2013, by Scott Morgan in Divorce, Family Law. 1 Comment
Featured Image THE POST LOOP ============================================ THE POST CONTENT
This is a guest post by board certified family law attorney Scott Morgan. He is the founder of the Morgan Law Firm which has offices in Houston, Austin, and Sugar Land.
 
Anyone who is going through or has gone through a divorce can tell you how important it is that you have a very good attorney. But what not many people will tell you is that regardless of how good an attorney you have your results will suffer if you and your attorney cannot work together effectively. Having practiced family law for nearly 20 years I have a few ideas of what it takes to effectively work with your divorce lawyer. Here are my five favorite tips to help your divorce lawyer do a good job on your case.
 
Tip #1 – Don’t Hide Things from Your LawyerLying and hiding things from your attorney is absolutely not in your best interest. Not only will it damage the relationship with your lawyer, it is likely to cause great damage to your case. Whatever the facts are a good lawyer can help you to do damage control and deal with the situation in the best way possible. What no lawyer can effectively deal with is being blindsided at the courthouse by damaging evidence that you had hoped would stay hidden.
 
Tip #2 – Have Realistic GoalsWhile no attorney can promise you a specific result in your case, a good attorney can usually give a reasonable range of likely outcomes. If your goals are well outside this range then it will make it nearly impossible for your lawyer to settle your case. Pay careful attention if your lawyer tells you that your objectives are unrealistic and that you are very unlikely to achieve them via settlement or at the courthouse. Sometimes it is necessary to adapt one’s goals to a more reasonable level in order to get the best possible result.
 
Tip #3 – Keep Relevant Documents and Information OrganizedThis tip is important throughout the case but particularly important during the discovery phase of your case. A common frustration of divorce lawyers occurs when they ask clients to compile information and records for them and the client either delays or outright refuses to do the work necessary to get them. Again, while it may seem unreasonable that you are required to do so much work on your divorce case, if you want an outstanding result you need to give your lawyer what they need.
 
Tip #4 – Don’t Get Derailed by Your EmotionsIt very frequently happens in divorce cases that a client becomes their own worst enemy. I have had clients call their spouses and leave horribly profane voicemails, send similarly nasty emails, give away personal property that belonged to their spouse, and perform a variety of other childish gestures that were intended to anger their spouse. Of course, the result of these actions was to provide the other side with very helpful evidence to show the judge just how unreasonable my client was. Don’t fall into this trap. Keep your emotions in check and avoid taking any action that would make you look bad to an objective outside observer.
 
Tip #5 – Be Open to Your Lawyer’s AdviceThis tip buttresses Tip #2’s advice to “have realistic goals.” Clients often have a belief that if they just got the case in front of a judge then the injustice of the situation would be obvious and the judge would spare no effort in an extremely harsh punishment of the other spouse. The reality is often quite different. While the facts of every case are unique it is imperative that you have a good lawyer and listen to that lawyer’s input about your case.Hopefully these five tips can help you more successfully navigate the divorce landscape and avoid making some of the all too common errors made by parties in divorce cases.

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

Posted on August 1, 2013 at 1:15 PM Comments comments (135)
 
This Newsflash comes directly from the Albuquerque Journal. The link is below. This is an important news story as it changes a major understanding of the law.
 
Court: Father doesn’t have to pay child support
 
Scott Sandlin / Journal Staff Writer
 
His parental rights were terminated in 1990 Doña Ana caseA man whose parental rights were terminated after allegations of mental and physical abuse does not have to pay more than $117,000 in court-ordered child support for his two children, the state Court of Appeals has ruled.Judge Michael Bustamante, writing for a unanimous three-judge panel, concluded termination of parental rights severs the parent-child relationship completely – including the support obligation.The ruling came in the case of a Doña Ana County couple who married in 1984 and divorced in 1990. The father was ordered to pay $600 a month in child support payments for the couple’s two children.Three years later, the mother sought to terminate her ex-husband’s parental rights based on allegations of mental and physical abuse. The father didn’t show up for the hearing, and the district judge noted that the children had “witnessed horrific violence and mayhem to those they love.”The judge also noted the father had kidnapped the children and taken them to Texas for 10 months in 1990 without letting them have any contact with the mother during that period.The District Court said the children would not be damaged if they never had contact with the father again and granted the termination request. The November 1993 termination order made no mention of child support.The mother applied for aid from the state Human Services Department. HSD collected some $7,620 from the father and the mother continued to press for unpaid child support.In 2010, District Judge Michael Murphy of Las Cruces ordered the father to pay $117,502 in past due child support plus interest, for a 14-year period from 1994 through September 2010.The father appealed and the Appeals Court reversed Murphy’s order, noting that the state statute dealing with termination of parental rights was far from clear.The mother argued the law dealt with the rights of the parent, not a parent’s duties toward a child, so a child’s “inherent right to support from the parent persists” even after parental rights are ended.The father argued that if the Legislature had intended a continuing duty of child support, it would have explicitly said so.The Appeals Court said that revisions to adoption law, made part of the Children’s Code in significant 1985 revisions, removed reference to a parent’s “duties and obligations” post-termination.“The question is whether the changes in language … reveal a legislative intent to continue support obligations after termination of parental rights. We conclude that they do not,” the Appeals Court said.“Such a significant change,” it said, “would seemingly require definitive action by the Legislature.”Bustamante’s opinion says termination of rights is meant to end the connection forever.“The Legislature had no intent to change the fundamental nature and effect of an order terminating rights when it amended the Children’s Code in 1985,” the ruling said. “The fundamental and terrible act of severing the parent-child relationship cuts off all connection between them except as specifically excepted by the Legislature.”The court said its analysis looked at historical changes in laws “that reflect an evolution of attitudes toward the parent-child relationship and the problems posed by abused, neglected and delinquent children.”Judges Cynthia Fry and Michael E. Vigil joined in the opinion, which reverses the lower court.

Top Ten Divorce, Custody, Child Support Myths

Posted on July 18, 2013 at 7:59 PM Comments comments (125)
 
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.
 
 
 
 
 
 
 
 
 

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