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|Posted on June 8, 2015 at 4:14 PM||comments (70)|
Most people would agree that parents should be financially responsible for their children at least to the best of their abilities. Child support amounts can be modified if situations warrant. In most jurisdictions and New Mexico is no exception, child support can be modified whenever there is a change in circumstances. The parent alleging the change in circumstances has the burden of proving that there has been a "significant change in circumstances."
In New Mexico, anytime there is a significant change in custody, you should have an attached child support worksheet. § 40-4-11.4(A) NMSA 1978 provides: "A court may modify a child support obligation upon a showing of material and substantial changes in circumstances subsequent to the adjudication of the pre-existing order. There shall be a presumption of material and substantial changes in circumstances if application of the child support guidelines in §40-4-11.1 NMSA 1978 would result in a deviation upward or downward of more than twenty percent of the existing child support obligation and the petition for modification is filed more than one year after the filing of the pre-existing order."
A 20% change in support and a year wait are fairly significant changes for a Court to entertain a child support modification. Generally, if any moderately significant provision of child custody changes, then the court will also draft a new child support worksheet. Many courts will also review child support simply if it has been a significant period of time since the child support obligation was put in place.
In order to get the Court to reconsider and possibly modify child support, you have to first file a motion with the Court outlining the grounds for granting a modification to the current child support. Grounds must be within the criteria outlined in the statute cited above. This is generally the rule in whatever jurisdiction your case is in.
By the way, the statute also provides in § 40-4-11.4(B) that parents are obligated to exchange financial information each year if one of them requests it. The information includes Federal and State Tax Returns, 1099s, W-2s, information about daycare, and medical expenses. You can also ask the other parent to provide more information. This is done by means of sending the other parent interrogatories and requests for production.
The information you request must be rationally related to the questions of child support, income, and budget unless the scope of your evidentiary hearing is beyond the issue(s) of child support. This gathering of information is called the “Discovery Process” and it is provided for in the Rules of Civil Procedure and elsewhere.
One caveat, if you are trying to keep the costs of litigation and attorney fees in check, you may wish to consider limiting discovery to only those items, questions, and pieces of information and other evidence which are essential to the upcoming hearing. Fishing expeditions, attempts to bog the other parent down in paperwork, and being overly a pain in the neck will be costly to you in the end.
|Posted on June 1, 2015 at 1:04 PM||comments (506)|
How to Guarantee that You Won’t be the Custodial Parent
Before you read any further, I realize what I’m about to present is plain common sense. I’m not trying to insult your intelligence but you would be utterly surprised at the number of times intelligent people do rather dumb things when it comes to their personal lives and especially when a court hearing is on the calendar. So I am going to take a different approach because some folks benefit more from hearing what they shouldn’t do rather than what they should do.
I tell almost all my clients that custody cases are won or lost largely due to a parent’s behavior and because the parent has lost sight of what’s in the best interests of their child. These are basic common sense points but if you ignore them, you can put yourself at a severe disadvantage of becoming the primary custodial parent or even having joint custody.
Try To Maintain Custody of Your Children from the Get-Go
This is huge. If you move out of the marital/joint residence and leave your children with the other parent, you are essentially giving away custody. This sounds so simple but many people make this mistake. You can’t move out without your kids–period. No matter how bad the situation with your partner, you need to maintain your living arrangement with your kids. Find a way to make it work. If you’ve decided that moving out is the best thing for you and the children then make sure you get the other’s parent’s consent in writing to do so. An email or a text willdo.
What happens if the other parent doesn’t agree or what if the other parent tries to take the children first? If it is clear that you are getting divorced or separating from your spouse/co-parent, then make it very clear to them that s/he cannot leave and take the kids without your permission. Make this clear in several emails, texts, etc. that you do not consent to the children’s removal. Your partner/spouse, can move out, but the kids need to stay until the case is resolved.
You should also file a Petition for Dissolution of your marriage or Petition to Determine Parentage (for unmarried couples) in the District Court immediately. If your spouse moves out with the children behind your back, then you will have a good case for a court to bring them back on an emergency basis. You will have documentary evidence proving you didn’t agree for the other parent to take the kids.
Stay Active in Your Children’s Lives.
Have you met with the children’s teachers? Do you schedule doctor’s appointments? Do you take the kids to their extracurricular activities? Do you spend time with your children? Do you take them to buy clothes? Do you take them to buy school supplies? Do you attend their school events/extra-curricular activities? The more “yes” answers the better!
If you haven’t taken an interest in your child’s life until you file a Petition to Determine Parentage or file your divorce petition, then you are unlikely to be able to turn it around in time to become the primary custodial parent. In my experience custody needs to be earned from day one of the child’s life. If you were absent from the child’s life or took a back seat to the other parent, then your case becomes rather challenging.
Don’t Alienate the Other Parent
Discuss the children’s issues with the other parent. Do it via email if you have to. You two may not agree, but at least you have a record that you tried. Unless there’s outright physical, sexual, emotional, or other types of abuse, you must allow the other parent to co-parent. This does not mean that you shouldn’t be taking control, but you should also remember that there are always two parents and both have a legal right to input into the children’s lives.
Don’t be a bad parent
Don’t put yourself into a position where the other parent could get an order of protection against you or worse, file a criminal charge.Separating couples often have at least one big blowout. They also are prone to argue a lot. However, don’t ever put yourself in a position where the other parent could make allegations to support an order of protection against you. Don’t stalk them. Don’t contact their job. Don’t contact their new boyfriend or girlfriend. No Facebook or other social media stalking or bad-mouthing. Avoid verbal altercations at all cost. Don’t ever send threatening emails or text messages.
This is plain common sense but here goes: if you drink, smoke marijuana, or use other drugs don’t do it around your children; especially hard drugs. If the other parent knows you enjoy recreational drug use or alcohol use, you might want to consider quitting while the case is pending. Of course, if you have a legal permit for medicinal marijuana this will likely not apply. Similarly if you enjoy other adult activities keep those out of your children’s lives.
Obviously putting yourself in a position where you get arrested especially for Domestic Violence or DWI, testing positive for illegal drugs or becoming promiscuous to the point that the other parent can substantiate it with evidence severely hampers your chances for a favorable day in court. This is not the time for anyone to discover you have a porn addiction or that you frequently drive after drinking.
Nothing guarantees that a court will award you primary custody but there are certainly several factors that the other parent can argue against you getting any custody. Please bear the four points we’ve discussed in mind at all times.
|Posted on May 18, 2015 at 8:08 PM||comments (278)|
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 (148)|
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 (158)|
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 (48)|
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 (313)|
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 (163)|
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 (376)|
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 (215)|
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.
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