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Does Guardianship Override Parental Rights

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Does Guardianship Override Parental Rights

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Do you still have questions about kinship guardianship and parental rights in New Mexico? (505) Sanchez has handled guardianship cases all across New Mexico. Call (505) SANCHEZ today!

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Guardian cases in New Mexico are often referred to as Guardian Angel cases. In many ways, guardians act as a child's guardian angel in situations where a parent is unwilling or unable to care for the child.

But guardian angel cases are not always heavenly. Here are the common legal issues that arise with guardian cases in New Mexico.

NEW MEXICO GUARDIANSHIP LAWS - TERMINATION OF GUARDIANSHIP

Virtually nothing is permanent in family law. Most "permanent" orders can be modified based on a major change in circumstances.

The Kinship Guardianship Act enables the guardian to step into the parent's shoes. Guardian cases, however, do not terminate parental rights. Because of this fact, a parent can motion the court to revoke guardianship, based on a major change in circumstances that affects the child's best interests.

Often this poses a problem to guardians that have formed an immense bond with the child and may believe:

The parent poses a danger to the child;

The child is thriving with the guardian;

The parent has been absent from the child's life for extended periods;

The child has displayed an extreme reluctance towards returning to the parent; or

The parent has underlying issues that prevents them from providing adequate care.

APPOINTMENT OF A GUARDIAN AD LITEM - WHO PAYS FOR THE GAL IN NEW MEXICO?

The New Mexico guardianship statute addresses the appointment of a GAL in guardianship cases. According to NMSA 40-10B-9, "The court shall appoint a guardian ad litem if a parent of the child is participating in the proceeding and objects to the appointment requested."

New Mexico law addresses payment of the GAL and states, "The court may order all or some of the parties to a proceeding to pay a reasonable fee of a guardian ad litem." See NMSA 40-10B-9(C).

In guardianship cases, the court can order the parents to provide the guardian with

child support. See 40-10B-8(D). In situations where the parents are not providing the caregiver with child support, the court may order the parent(s) to bear the GAL's entire expense.

HOW TO GET GUARDIANSHIP OVER A CHILD IN NEW MEXICO

Guardianship Cases When More Than One Person Seeks Guardianship of a Child

At times more than one party may petition (request) the court to be appointed as a child's guardian. In these situations, the court will likely determine if both parties have legal standing to request guardianship. "Legal standing" basically means, "can both parties meet the legal requirements to be appointed as the child's guardian"?

Assuming that both parents have standing and meet the legal requirements of NMSA 40-10B-8, the court will likely appoint a GAL to determine the child's best interests.

Getting Guardianship over a Child in New Mexico - The GAL Process

The GAL will conduct an investigation to determine the child's best interests regarding guardianship. The GAL process will likely involve the following:

A home visit;

Speaking with the parties;

Speaking with collateral sources such as extended family, counselors, CYFD, counselors, etc.; and

Considering the child's concerns and desires regarding guardianship.

The GAL will use the information uncovered during the investigation to enter Recommendations regarding the appropriate guardian.

The GAL's Recommendations will become an enforceable court order, unless an objection is filed within ten days.

GUARDIANSHIP VOIDED WHEN PARENT NOT PROVIDED WITH NOTICE OF HEARING

A Father and Mother's Constitutional Right to Receive Notice of Guardianship

The caregiver seeking guardianship must serve notice of the hearing on all concerned parties, including the child's parents. The involved parties have a statutory right to file a response to the request for guardianship. See 40-10B-6(D).

In Burris-Awalt v. Knowles, the court granted guardianship without the guardian providing Father with adequate notice. Father filed a Rule 60(b) Motion to Set Aside, which was denied by the court. Father appealed. The Court of Appeals overturned the court's decision, reasoning: "No notice was ever given to Mother of Father, and no hearing was scheduled or held on the matter." See 241 P.3d 617 at ¶ 17.

The Court of Appeals recognized that failure to provide father with adequate notice, " . . . stripped Father of his statutory and constitutional right to file a response and of his constitutional right to be heard on a matter involving his parental rights." Id.

Long story short, problems can arise in guardianship cases when you fail to provide all concerned parties with proper notice under NMSA 40-10B-6.

WHY DOES GUARDIANSHIP HAVE HIGHER NOTICE AND CONSENT REQUIREMENTS THAN ADOPTION?

An interesting aspect about guardianship in New Mexico are the notice and consent requirements.

Notice is a legal concept that requires the party requesting a legal remedy (i.e. grandparent requesting guardianship over a child) to provide notice to the interested parties (i.e. the child's parents).

The Kinship Guardianship Act requires notice to be provided to the following:

CYFD if there is a pending matter;

A child that has reached 14;

The child's parents;

Anyone that has court ordered custody of the child; and

Follow the FICWA when the child is an "Indian child."

Although a caregiver steps into a parent's shoes with guardianship, the parent's rights are not terminated. On the other hand, a parent's rights are permanently terminated with adoption. Despite this fact, guardianship in New Mexico has greater notice and consent requirements vs. adoption.

For instance, with adoption notice is not required to be served upon an "alleged father." See NMSA 32A-5-27(B)(1). Additionally, consent to the adoption is not required from "an alleged father who has failed to register with the putative father registry within ten days of the child's birth and is not otherwise the acknowledged father." See NMSA 32A-5-19(E).

Unlike adoption in New Mexico, with guardianship an alleged father is entitled to notice. Additionally, with guardianship consent is required, even if the alleged father failed to register with the putative father registry within ten days of the child's birth.

Why does New Mexico law place a higher notice and consent burden on guardianship, when adoption irrevocably terminates parental rights?

This is a question for your local legislature, who creates New Mexico law. As a lawyer, I merely follow and apply New Mexico law.

GUARDIANSHIP LIKELY GRANTED WHEN PARENTS FAIL TO FOLLOW THROUGH WITH GAL

A common situation arises with guardianship cases where a parent appears at the first hearing and objects to the proposed guardianship. Because the parent participates and objects, the court is forced to appoint a GAL to conduct an investigation and make recommendations regarding the child's best interests.

The parent is ordered to pay a portion of the GAL fees. In some situations, the parent is ordered to bear the entire GAL expense, because they are not providing the caregiver with child support.

The parent then disappears and does not follow through with paying their portion of the GAL fees. Because of this fact, the GAL is unable to complete the necessary investigation.

Over the past decade I have repeatedly seen this issue occur. In all instances, the assigned judge has granted the proposed caregiver with guardianship over the child, based on the parent's failure to follow court orders.

WHAT ARE THE ALTERNATIVES TO GUARDIANSHIP IN NEW MEXICO

An alternative to guardianship in New Mexico is to complete a Caregiver's Authorization Affidavit.

The caregiver may execute a Caregiver's Authorization Affidavit, in situations where a child lives with a caregiver who is a grandparent, aunt, uncle or qualified relative (this can include an adult with whom the child has a significant bond - which is pretty broad).

The Caregiver's Authorization Affidavit is valid for up to a year after the date on which it is executed. See 40-10B-15.

The Caregiver's Authorization Affidavit does not make the caregiver a legal guardian that steps into a parent's shoes and assumes parental rights. It does, however, enable the caregiver to enroll the child in school and to secure medical, dental, and mental health care for the child, on the same level as a guardian.

Access the Caregiver's Authorization Affidavit by clicking here.

DOES GUARDIANSHIP IN NEW MEXICO OVERRIDE PARENTAL RIGHTS?

Yes. Once granted, the guardian steps into the parent's shoes and assumes all parental rights, other than the right to consent to adoption. When granting guardianship, the court may order that the parent retain rights and duties, such as the right to communication/visitation, and the duty to support the child.

GUARDIANSHIP VS. PARENTAL RIGHTS IN NEW MEXICO

Under the Kinship Guardianship Act, the guardian assumes all parental rights while the guardianship is in place, other than adoption rights.

GUARDIANSHIP AND PARENTAL VISITATION

In New Mexico, the child's guardian can make all decisions regarding parental visitation and communication, unless the court orders otherwise.

DO GUARDIANS HAVE GREATER RIGHTS THAN BIOLOGICAL PARENTS?

No. In New Mexico guardians have the same rights as biological parents, other than the right to consent to an adoption.

HOW TO GET GUARDIANSHIP OF A CHILD WITHOUT GOING TO COURT?

A caregiver can be appointed as a child's guardian, without going to court, when the child's parents are living and have consented in writing to the proposed guardianship.

CAN ONE PARENT GIVE GUARDIANSHIP?

In New Mexico, the consent of both parents is not required if each parent meets at least one of the requirements of 40-10B-8(B). For instance, a parent that is demonstrated to be unfit or absent does not have the ability to veto the consent to guardianship.

Both living parents are entitled to notice. Unlike adoption, with guardianship, an alleged father is entitled to notice and must consent to the guardianship. When one parent objects to the guardianship, the court will likely grant temporary guardianship for 180 days, and appoint a Guardian Ad Litem to complete an investigation and make recommendations regarding the child's best interests.

HOW HARD IS IT TO TERMINATE GUARDIANSHIP IN NEW MEXICO?

Unlike adoption, the Kinship Guardianship Act does not permanently terminate and sever the parent and child relationship. In New Mexico, guardianship can be revoked when the court finds that the proposed revocation of guardianship is in the child's best interests.

IS IT EASIER FOR GRANDPARENTS TO GET GUARDIANSHIP OVER A CHILD?

Under the Kinship Guardianship Act any caregiver with whom the child lives can request guardianship. Grandparents can request guardianship over a child in New Mexico, but the grandparent must follow the same requirements any eligible caregiver.

(505) SANCHEZ IS AN ALBUQUERQUE GUARDIAN LAWYER THAT HELPS GRANDPARENTS UNDERSTAND COMMON ISSUES WITH GUARDIAN CASES IN NEW MEXICO

Are you a grandparent or caregiver that still has questions about common issues with guardian cases in New Mexico? Matthew Legan Sanchez is a New Mexico child guardianship attorney that has the experience you need to win your case. Sanchez can be reached by calling (505) SANCHEZ.

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Common Issues with Guardian Cases in New Mexico | Family Law

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Guardian cases in New Mexico are often referred to as Guardian Angel cases. In many ways, guardians act as a child's guardian angel in situations where a parent is unwilling or unable to care for the child. But guardian angel cases are not always heavenly.

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Guardianship Over an Incapacitated Adult in Albuquerque, New Mexico

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Guardianship Over an Incapacitated Adult in Albuquerque, New Mexico

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Life has the tendency to throw unexpected curve balls in our direction. There may come a time in each of our lives when a family member, friend, or loved one becomes incapacitated and cannot care for themselves due to mental illness, dementia, disability, or substance abuse. In other situations, a child is on the brink of becoming an adult, but is unable to adequately care for themselves due to a disability such as Down syndrome.

In either of these situations, New Mexico courts can appoint a guardian to provide care, custody, and control for the incapacitated person. A New Mexico court can also appoint a conservator that makes all business and financial decisions on behalf of the incapacitated person.

The appointed guardian can be granted power to make decisions regarding an incapacitated person's nutrition, healthcare, hygiene, safety, shelter and any other aspect that affects the individual's well-being. In New Mexico, such a guardian is appointed under the probate code to provide for the care, custody, and control of the incapacitated person.

Guardianship can be full or limited. With limited guardianship - in any number of ways - New Mexico courts can limit the guardian's power to act on behalf of the incapacitated person.

Full guardians have the same powers, rights, and duties that a parent has over a minor child - but do not have the financial responsibility to support the incapacitated person. Additionally, unlike parents, guardians are generally not liable for the incapacitated person's actions - criminal or otherwise.

A guardian effectively steps in the shoes of an incapacitated person, making decisions on that person's behalf.

Unfortunately, the process of becoming one's guardian is not entirely filled with sunshine and blossoming flowers. On the darker side of the process, an incapacitated person stands to lose many of one's fundamental rights, as well as a sense of personal dignity by being found to be incapacitated and in the process having another person named as one's guardian. Because of these potential drawbacks, New Mexico court's are hesitant to appoint guardianship on a whim, taking the process very seriously and strictly enforcing any legal burdens or procedures required by New Mexico law.

New Mexico law and procedure requires one to satisfy a number of lengthy, expensive, and potentially stressful steps before guardianship is ultimately granted.

The process begins when a person over the age of eighteen files a Petition for the Appointment of Guardianship Over an Incapacitated Person. This Petition must state all of the requirements set forth under the New Mexico Probate Code, § 45-5-303 NMSA 1978.

The Petitioner files a Request for Setting and Notice of Hearing with the Petition and Summons.

Notice of the proceedings must then be provided to the incapacitated person, the person's spouse (if any), parents, and any adult children. If there are no adult children involved, then at least one of the person's closest adult relatives - if any can be found - must be served with notice of the proceedings. Failure to provide adequate notice will result in the case either being continued, or dismissed.

At this stage in the process the court sets an initial hearing.

At this hearing the court generally appoints a Guardian Ad Litem ("GAL") to represent the allegedly incapacitated person, unless the incapacitated person already has an attorney acting on his/her behalf. At this hearing the court can also grant temporary guardianship to the Petitioner. This temporary guardianship only lasts 60 days, unless a motion is filed and then a subsequent order is granted by the court extending the temporary guardianship by a maximum of 30 additional days.

In addition to the GAL, the court also names a Qualified Health Care Professional to produce a Report of Health Care Professional. The court also appoints a Visitor to interview all of the relevant parties and ultimately to produce a Report of the Court Visitor.

These findings are generally reduced into an Order for Appointment of Guardian Ad Litem, Health Care Professional, Visitor and Temporary Guardianship.

At this point the relevant parties must meet with the Guardian Ad Litem, Health Care Professional, and Visitor to complete the requisite steps and reports. These reports effectively place the court on notice of the allegedly incapacitated person's limitations. The reports also state whether or not the limitations at hand warrant the court to name a guardian on behalf of the incapacitated person.

Report of Health Care Professional:

This report is generally produced by a physician that is licensed in New Mexico with training and expertise regarding the assessment of functional impairment. The report includes relevant medical examination and diagnostic procedures. Based upon direct observations, medical records and reports, the physician states in the report if he/she believes that the individual lacks capacity and therefore requires the assistance of a guardian.

Report of the Court Visitor:

This report is conducted by a court appointed home visitor. The report states if guardianship should be awarded based on information obtained through personal observations during in-person visits, record reviews, and telephone interviews with all of the relevant parties - and family. The report states if the Petitioner(s) are qualified, willing, able and suitable to serve as a permanent guardian. The report may ultimately state that based on all of the information retrieved the Visitor believes that the allegedly incapacitated person would benefit from a permanent guardian, and that the Petitioner(s) are appropriate to serve in that capacity. The Visitor also interviews family members and other relevant parties to determine if they believe that the allegedly incapacitated person needs a guardian and if the Petitioner(s) are the best individuals to serve in that capacity. The final report summarizes the individual's physical and cognitive disabilities and assesses whether the individual is best served by a permanent guardian being appointed to manage his/her decisions regarding: placement, medical issues, and daily supervision. Finally, the report states if the Petitioner(s) are "willing, able, suitable, and qualified to serve as permanent guardians for the allegedly incapacitated individual."

The appointed GAL interviews the parties, family members, and any other relevant parties. The GAL reviews both reports (i.e. the Report of Health Care Professional and Visitor). Based on the totality of this information, the GAL forms an opinion about the appropriateness of naming the Petitioner as a Guardian.

The steps involved with completing the requisite evaluations and resulting reports can be time-consuming, expensive, and stressful. After these reports are completed, the Petitioner requests a Hearing to present the findings before the assigned Judge.

At this point the court sets a Hearing for Appointment of Guardianship. The Petitioner and Respondent (i.e. the incapacitated person) must be present for this Hearing. The GAL is also present and presents the findings of both reports, as well as the GAL's ultimate recommendations.

The assigned Judge reviews the record, reports, and listens to the testimony provided in open court. Based on this information, the Judge may award guardianship.

Guardianship Requirements:

If the Petitioner is appointed as guardian, the guardian must report to the Court in 90 days and annually thereafter as provided by NMSA 1978, § 45-5-314 (2009). Namely, the guardian shall file an initial report with the appointed judge within 90 days of the guardian's appointment. The guardian is then required to file an annual report within 30 days of the anniversary date of the guardian's appointment. A copy of the report shall also be submitted to the assigned district judge. A copy should also be provided to the protected person, and conservator (if one is appointed).

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How can I get guardianship over an incapacitated adult in New Mexico?

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Life has the tendency to throw unexpected curve balls in our direction. There may come a time in each of our lives when a family member, friend, or loved one becomes incapacitated and cannot care for themselves due to mental illness, dementia, disability, or substance abuse.

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Know About Brangelina's Divorce and Custody Disputes in Albuquerque, New Mexico

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Know About Brangelina's Divorce and Custody Disputes in Albuquerque, New Mexico

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I have some good news for all of the single men living in the 505 - Angelina Jolie is once again available and back on the market! Unfortunately, I also have some bad news for all of the single men living in the 505 - there's virtually zero chance that you will ever date Angelina Jolie at any point in your life.

So it goes.

But hold your laughter ladies. Sadly ladies, your chances of dating Brad Pitt are equally as non-existent.

Yesterday it was announced that Angelina Jolie filed for a divorce from Brad Pitt, after a twelve year relationship and two year marriage. In the Petition for Dissolution of Marriage, Jolie cites "irreconcilable differences" as the reason for the divorce.

Irreconcilable differences is legal jargon that basically means that the parties to the marriage are no longer compatible. In New Mexico, it is very common for the party seeking a divorce (i.e. the Petitioner) to cite "irreconcilable differences" as the basis for the divorce. Because New Mexico is a no fault state - unlike a handfull of other states - the Petitioner is not required to claim abuse, adultery, abandonment, or anything other than incompatibility as the basis for the requested divorce.

Angela Jolie's Petition shines a light on several common issues that the Hollywood couple will face with their divorce, and that the people of New Mexico encounter with their divorces. These issues include:

Custody and Timesharing:

Jolie is requesting joint legal custody, and sole physical custody of their six children. This begs the common question: what's the difference between Legal and Physical Custody?

Joint Legal Custody means that both parents have decision making power regarding the children. This power involves each child's: Residence, Religion, School, Organized Day Care, Physician, Dentist, Specialists, Counselors.

New Mexico court's grant parents joint legal custody in the vast majority of cases. Only in extreme cases will the court award one parent sole legal custody, preventing the other parent from exercising their parental right to make decisions on the child's behalf.

Physical custody means the time that each parent has with the child/children. This includes the regular day-to-day timesharing. Physical Custody also includes holiday timesharing, uninterrupted vacation timesharing, and other timesharing of the children.

As evidenced by Jolie's Petition, she is requesting sole physical custody of the children, with Pitt having small periods of visitation. With this said, it's important for one to bear in mind that often one party requests something in a Petition even though the likelihood of success may be exceedingly small. What one requests from a court is simply that - a request. Based on Pitt's involvement with the children and co-parenting over the years, it is highly unlikely that Jolie will get sole physical custody of the children - assuming that Pitt fights this request.

In New Mexico it is common for one parent to request either sole or primary physical custody of the children based on substance abuse, domestic violence, mental health issues - or any other number of issues affecting the children.

In a similar vein, reports have surfaced that Jolie is requesting sole physical custody based on Pitt's anger and substance abuse issues. But there's always two sides to a divorce, and other reports have circulated for months about Jolie's substance abuse issues, eating disorders, and other mental health issues.

Regarding Jolie and Pitt, it is likely that the couple will resolve their timesharing issues outside of court, instead of facing the PR nightmare of a contested custody dispute where both sides air the other side's "dirty laundry' through the potentially extended process of litigation.

New Mexico courts generally require parents to attempt to resolve any custody issues through mediation, when the parents are unable to reach an amicable decision. During mediation the parents meet with a skilled and neutral mediator that assists the parents with reaching an appropriate timesharing agreement.

Nevertheless, not all custody disputes can be resolved through mediation. In situations where mediation ultimately fails, the final decision is taken out of the parents' hands and put solely in the presiding Judge's hands. New Mexico courts are guided by the "Best Interests of the Children" when it is tasked with determining the appropriate timesharing. In other words, New Mexico courts want to know what is best for the children regarding timesharing.

New Mexico courts routinely use three methods to determine the Best Interests of the Children: (1) Child Custody Evaluation, (2) Guardian Ad Litem, (3) Evidentiary Hearing.

Rule 11-706 Child Custody Evaluations are generally ordered for highly conflicted or complex custody disputes. New Mexico courts may require a custody evaluation to take place in the following situations:

1. One or both of the parents/children are diagnosed with severe mental or physical illness;

2. The record suggests a history of criminal activity, domestic violence, substance abuse, child abuse, or any other adverse activity that affects the Best Interests of the Child; and

3. A history of parental conflict.

Judges routinely appoint 11-706 child custody experts as witnesses. These experts conduct child custody evaluations when all other options have been exhausted, and the Judge needs more information in order to determine the appropriate timesharing.

Child custody evaluations provide the Court with a wealth of detailed information about the issues that are present in the case, as well as objectively founded, clinical opinions about the nature of the parents' conflicts, and any issues facing the children. The appointed 11-706 child custody expert ultimately serves as a witness, providing the Judge with recommendations about what should be ordered in the best interests of the children, based on all of the information that has been collected during the custody evaluation.

A guardian ad litem ("GAL") is an attorney appointed by the court to represent the interests of a child - acting as the mouthpiece for the child. A GAL serves as an arm of the Court, helping the Court to ultimately decide the child's bests interests.

New Mexico courts take great caution about forcing a child to testify in court. This judicial caution is based on the harmful effects - both short term and long term - that children suffer from being thrown in the middle of a custody battle.

Based on the harmful effects of child testimony, a GAL is an effective way for a Judge to determine a child's wishes, concerns, and best interests, without placing the child in the middle of the dispute. Additionally, GAL's are used in lieu of child therapists, who are prevented by their professional code of ethics from testifying about a client's wishes regarding custody.

The GAL does not represent either party, and merely represents the child's best interests. After completing their investigation, the GAL submits a written report to the court with the results of the interviews/investigation, and what the GAL believes is the child's bests interests.

A evidentiary hearing regarding timesharing is a hearing where evidence is provided to the presiding Judge regarding the appropriate timesharing arrangement. This hearing can involve testimony from the expert child custody evaluator, GAL, the parties to the case, family members, or any other witness that can provide the presiding Judge with the evidence necessary to determine the best interests of the children.

During this hearing both parties also have an opportunity to contest the findings or recommendations of either the child custody evaluator or GAL. In the end - for better or worse - the presiding Judge has the ultimate power to determine the best interests of the children and the appropriate timesharing.

Generally speaking, the judge's ultimate ruling will only be overturned when an "abuse of discretion" occurs, and the holding will not be touched if it is supported by substantial evidence. "To reverse the [judge's decision] under an abuse-of-discretion standard, 'it must be shown that the [judge's] ruling exceeds the bounds of all reason . . . or that the judicial action taken is abritriary, fanciful, or unreasonable.'" Edens v. Edens, 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109 P.3d 295.

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BRANGELINA'S Divorce and Custody/Timesharing Disputes in Albuquerque, New Mexico. - (505) SANCHEZ Blog

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I have some good news for all of the single men living in the 505 - Angelina Jolie is once again available and back on the market! Unfortunately, I also have some bad news for all of the single men living in the 505 - there's virtually zero chance that you will ever date Angelina Jolie at any point in your life.

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Registering/Domesticating another State’s Court Order in Albuquerque

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Registering/Domesticating another State’s Court Order in Albuquerque

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The sun is back and spring is blossoming across Albuquerque. Take a second to look out of your nearest window and you are likely to see the green glow of plants and trees sprouting back to life across the city and state.

Many of you that have stumbled onto this article are either considering a move to the Land of Enchantment, or have already relocated to New Mexico from another state. I don't blame you. As a wise person once said: "If you don't like where you are, move. You are not a tree."

The right to travel and move is a bedrock constitutional right bestowed upon Americans. For most people reading these words, at any time and for any reason, you have the right to pack your bags and move to another state. This statement, however, becomes a bit cloudy when a parent seeks to relocate to a different state with one's child. For more information on when a parent is allowed to move their child away from New Mexico, click here:

When is a parent allowed to move their child away from New Mexico?

For our present purposes, let's assume that you are a parent that has already moved from another state to New Mexico. Let's further assume that you have an existing court Order in your former state that dictates issues affecting the child such as custody, time-sharing, and/or child support. Now, let's take one last leap and assume that you would like to register/domesticate the other state's Order in New Mexico - potentially asking the New Mexico court to modify the prior Order based on a substantial change in circumstances.

In this scenario the first step that you will take is to file a Verified Petition to Register/Domesticate a Foreign Order in New Mexico. You will also need to include:

1. Two copies, including one certified copy, of the Order that one is attempting to register/domesticate. See NMSA 1978, § 40-10A-305(a)(2);

2. A statement from the person seeking registration, to the best of their knowledge and under the penalty of perjury, that the proposed Order has not been modified. See Id; and

3. Name and address of the person seeking the registration and any parent or person acting as a parent who has been awarded custody or visitation in the proposed child custody Order that one seeks to register. NMSA 1978, § 40-10A-305(a)(3).

After one successfully registers/domesticates the other state's Order, a New Mexico court has the power to recognize and enforce the express terms of the existing Order. Nevertheless, a New Mexico court cannot modify the Order unless New Mexico can demonstrate that it has jurisdiction over the matter, in accordance with NMSA 1978, § 40-10A-201 to § 40-10A-210. At this point, the New Mexico court will need to determine whether or not it has jurisdiction over the parties and subject matter before it can take the matter into its judicial hands, thereby modifying the prior court Order according to the current change in circumstances.

For more information on whether a New Mexico court has the requisite jurisdiction (i.e. power) to modify your existing court Order, click here:

Does New Mexico Have Jurisdiction Over My Child Custody Case?

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How can I register or domesticate an Order from another state in New Mexico?

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The sun is back and spring is blossoming across Albuquerque. Take a second to look out of your nearest window and you are likely to see the green glow of plants and trees sprouting back to life across the city and state.

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Signs That You’re Being Bullied With Divorce | 505 Sanchez

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Signs That You’re Being Bullied With Divorce | 505 Sanchez

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The people that we love the most often hold the tightest grip on the strings that play with our emotions.

Our defenses are typically down with loved ones, with our deepest fears, dreams and secrets uncovered like Achilles' heel. As time passes our histories and personalities paint a picture of the person that we are. This picture in turn reveals the emotional strings and buttons that can be pushed and pulled to play with our emotions like marionettes.

With enough time sprinkled into the equation, a once beautiful relationship can crumble like the Roman Colosseum. Armed with the intimate knowledge gathered during a relationship, our former partners can become our present bullies - making threats that paralyze action through fear manipulation, with the intent to keep one suspended in an abusive and unhealthy relationship.

But bullies aren't limited to swaggering Goliaths that dole out bruises to generate the fear necessary to control our actions. Bullying can also come in the form of emotional and psychological methods. Often this emotional abuse spills over into a toxic relationship. Fear is often generated through threats to prevent a person from divorcing oneself from abuse, cutting the strangling cords of control and taking positive steps towards a healthy life and relationship.

Here are some questions to consider if you believe that you are being emotionally bullied. Does your parnter:

Threaten to make your life miserable if you don't bend to their wishes?

Repeatedly threaten to end your marriage unless you do what they want?

Out right tell you - or imply - that they will neglect, hurt themselves, or become depressed unless you do what they want?

Lavish you with approval when you do what they want, and then take it away when you don't?

Constantly label you as selfish, bad, greedy, unfeeling, or uncaring simply because you failed to meet their demands?

Use money as a weapon to get what they want?

If any of these statements apply to your relationship, then you are likely involved with an emotional bully.

In my practice I routinely encounter the same themes and recurring threats in toxic relationships. Here are five common threats that I've encountered that bullies use to prevent divorce:
If you leave me I will harm myself, you and/or the children:
Threats of this magnitude generally constitute domestic abuse under the Family Violence Protection Act. A person that has been threatened with violence - and reasonably believes that one's spouse poses an immediate threat of harm - should immediately file a Petition for Order of Protection. In Albuquerque this Petition can be filed with the Domestic Violence Division of Second Judicial District Court.

The Petition can be filed between the hours of 8:30 - 10:30 AM and 1 - 3 PM. Claims of this nature should result in the reviewing Judge finding that there is probable cause to support a Temporary Order of Protection being entered that restrains the abusing party from contact until a Hearing is held. By statute this Hearing must be held before an assigned Special Commissioner within ten days. At this hearing the Commissioner listens to both sides - considers the testimony, credibility of the parties, and any evidence supporting or refuting one's claim. The Commissioner determines if the necessary "preponderance of the evidence" has been established demonstrating that an act of abuse has occurred. "Preponderance of the evidence" is legal jargon meaning that the Commissioner believes that it is "more likely than not" that an act of abuse has occurred. For practical purposes, "preponderance of the evidence" generally means that the commissioner has listened to both sides and finds one side more believable.

Threats of this nature are extremely serious and will likely result in an Order of Protection being entered at the Hearing, extending the temporary order to a longer period of time.

When children are involved, the Special Commissioner has jurisdiction for six months to determine issues such as temporary custody and time-sharing. Generally speaking, a divorce is usually filed in the "DM Court" with the assigned Judge addressing a long term Parenting Plan, based on the appropriate system of timesharing that is in the child's best interests.
If you leave me I will take our children, leave the country, and you will never see us again:
This is a common threat with a common solution. At times married and unmarried parents are threatened with the prospect of the other parent leaving the state or country with the child. In other words, this is a classic fear based threat that preys on one's fear of losing a loved one, with the endgame of controlling one's actions. Assuming that the child has lived in New Mexico for six consecutive months - thereby making NM the home state of the child - one has the ability to file either a Petition for Dissolution of Marriage, or Petition to Establish Paternity, Custody and Timesharing (when the parents are not married). With either Petition, one can also request the court to issue a "Temporary Domestic Order" that Orders the parties: "Do not remove, cause or permit the removal of any minor child of both parties from the State of New Mexico without court order or written consent of the other party."

One wrinkle with Temporary Domestic Orders is that they only become legally binding once they are properly served on the other party. As such, it is imperative to file as quickly as possible when one believes that the other party will flee New Mexico with a minor child. Proactively filing in a timely manner increases the likelihood that one will be able to effectuate proper service of process, making the TDO binding and effective.

Once the Temporary Domestic Order is properly served, it becomes a binding court order that can be enforced. In Orwellian, Newspeak terms - violating a TDO is Doubleplus Ungood.
If you leave me I will hire the mad dog, Mike Tyson of lawyers that will pound you into pieces - and you will never see your child again.
My experience with this threat is that the people that are the most likely to make this threat are also the least likely to have actually spoken with an attorney - much less an experienced attorney. Statements of this nature are generally followed by a wildly one-sided and fuzzy regurgitation of law that fails to remotely reflect the realities of New Mexico law. Such a wild and unrealistic threat could consist of threatening the primary caregiver of the child that you will get sole legal and physical custody, based on your lawyer's wizardly abilities.

With that said, I'll be the first to admit that all lawyers are not created equally. Saying that all lawyers are equal is like saying that all quarterbacks, cars, or restaurants are equal.

The key takeaway with this threat is to speak with an experienced attorney that can explain the reality of New Mexico law in relation to your unique facts and situation. It is always preferable to take positive action and speak with an experienced attorney rather than remain shackled in an unhealthy relationship based on paralyzing fear.
If you leave me I will cut off all of your financial support leaving you penniless:
This is a common threat that has the ability to bang the gong of fear that reverberates strongly, leading to inaction. The reality of marriage is that both parties generally have different levels of education, experience, financial resources, and earning potential. New Mexico courts understand that marriage is often like a teeter-totter with the two sides of the marriage on completely different financial levels. The disparity between each side's financial means often creates a dependency that can scare one into non-action due to the fear of not being able to meet one's basic needs upon separation.

Two legal concepts exist that assist a financially disadvantaged party with support - Interim Support and Spousal Support.
Interim Support -
Interim support is essentially spousal support while the divorce is pending. In a nut shell, the court takes each partner's and minuses the FIXED MONTLY EXPENSES (i.e. monthly expenses such as mortgage payment, utilities, phone, internet, etc.). NET INCOME - FIXED MONTHLY EXPESNES = NET SPENDABLE INCOME. The court then equalizes the parties' net spendable income, to put both parties on a level playing field. In other words, if one partner has an excess NET SPENDABLE INCOME of $1,000, the court will split the $1,000 between both sides, while the divorce is pending.

For a more comprehensive analysis of interim support click here:

Interim Division of Income and Expenses ("Interim Support") in Albuquerque, New Mexico.
Alimony/Spousal Support -
Alimony/Spousal Support is the support that one receives after the divorce is finalized. Alimony is based on a number of factors. The two most important factors that affect alimony are need and ability to pay. A good way to conceptualize an alimony award is to imagine your judge holding a bucket in each hand. On one side the judge holds a bucket labeled: NEED FOR SUPPORT. On the other side the judge holds a buck labeled ABILITY TO PAY. The judge listens to all of the facts and figures, spilling a bit from each bucket until an equalization is reached.

Another important factor affecting alimony awards is the length of the marriage. New Mexico courts generally believe that longer marriages lead to a longer need for support. Speaking very generally, the tipping point for alimony is 5 years.

Some New Mexico judges will not award alimony for marriages under 5 years. On the other hand, when there are exceptional circumstances, some Judges will award transitional/rehabilitative alimony, for a limited period of time for marriages under 5 years. One of the harsh realities of alimony is that it is not based on statute, with clear, enforceable guidelines such as child support. Based on the lack of statutory law, judges have wide discretion to fashion an alimony award that they find equitable.

For marriages between 5 and 10 years the court generally only awards transitional/rehabilitative alimony that provides one party with financial support to receive education, training, work experience, or other forms of rehabilitation that increases the receiving spouse's ability to earn income and become self-supporting.

Marriages between 10 and 20 years generally lead to alimony awards for 30% to 50% of the number of years of marriage.

For marriages that are 20 years and longer, New Mexico courts can grant alimony for an indefinite duration.

For more information on the many moving pieces that create Alimony/Spousal Support, click here:

Alimony in Albuquerque, New Mexico.
If you leave me I will tell the court that the divorce was caused by your adulterous behavior:
One threat requiring three words - No Fault State.

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Signs that you're being bullied with your divorce in Albuquerque New Mexico.

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The people that we love the most often hold the tightest grip on the strings that play with our emotions. Our defenses are typically down with loved ones, with our deepest fears, dreams and secrets uncovered like Achilles' heel. As time passes our histories and personalities paint a picture of the person that we are.

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Getting a Divorce after Living Apart for Years	

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Getting a Divorce after Living Apart for Years	

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Oscar Wilde once wrote: "I never put off till tomorrow what I can possibly do the day after."

Similar to Wilde, we all have an inborn tendency to procrastinate when faced with difficult decisions and action. The tendency to delay necessary action is particularly evident in the marriage context when a couple is legallymarried - yet mentally single and living separate lives.

Months, years, or even decades can pass while a married couple lives apart without taking the necessary legal action to cut the ties of marriage. In these situations the married couple might begin new relationships, jobs, incur assets/debts, or relocate to a different city, state, or country.

Couples that are married but living single lives face a number of potential problems. These potential problems include:

Mounting community assets and debts;

Problems tracing and identifying community assets and debts - particularly when assets/debts are accumulated in different states;

Potential issues regarding alimony. In this respect, one's potential claim for alimony increases as the length of the marriage grows;

Tax liabilities; and

Potential joint liability for a spouse's negligence.

On the other hand, some of the potential benefits with remaining married while living separate lives include:

Maintenance of health insurance; and

Moral issues associated with divorce.

The costs of remaining married while living apart greatly outweigh the potential benefits. There are too many potential liabilities to live separate lives while remaining married. Like most unaddressed problems, the potential adverse repercussions grow with time, spawning a plethora of downstream liabilities.

For any number of reasons, after a significant period of time has passed, a party to the marriage often decides that it is time to take action into one's hands and legally end the marriage. At this point in time, the couple may have drifted apart to a degree where they are living in separate states, countries, or where the other spouse's location is unknown.

The divorce process begins when the party requesting the divorce (i.e. the Petitioner), files a Petition for Dissolution of Marriage. The act of filing the Petition triggers a number of legal requirements. One of these requirements provides the responding party (i.e. Respondent) with the constitutional right to receive notice of the Petition before the court can dissolve the marriage.
Due Process:
The U.S. Constitution provides fundamental Due Process rights. These legal rights dictate that the opposing party in a lawsuit (i.e. the Respondent) must be put on notice about the legal action (i.e. Petition of Dissolution of Marriage). In a divorce proceeding, the Respondent must be provided with proper notice before the Court has jurisdiction (i.e. power) to dissolve the marriage.

There are two common avenues used to properly serve the Respondent with notice of the Petition for Dissolution of Marriage:

Physically Serve the Respondent with the Petition and Summons:

Physically serving the Respondent requires knowledge of the Respondent's address or location.

This process is generally accomplished by a process server physically handing the Respondent a copy of the Petition and Summons. Under local rules, service can also be effectuated in a manner reasonably calculated - under all the circumstances - to put the Respondent on notice of the Petition for Dissolution of Marriage.

In situations where a spouse's address or location is unknown, the court can allow service to be effectuated through a publication such as a local newspaper or periodical.

Serving the other party through a publication requires one to file the appropriate Motion and Order allowing service by publication. The Motion puts the court on notice that the other party's address and location is unknown, and requests to serve notice through publication. The corresponding Order allows service by publication to take place based on the facts stated in the Motion. When the Order is granted, the publication generally is achieved through a newspaper in the county that is most likely to provide the other party notice of the pending court case.

The publication must include:

1. The case caption;

2. Respondent's name;

3. Name, address, and telephone number of the Petitioner's attorney;

4. Statement that a default judgement may be entered if a response is not filed.

Generally, service by publication must be made once each week for three consecutive weeks. After the publication process is complete, the Petitioner must file a Notice of Filing of Affidavit of Publication, which puts the court on notice that the Respondent has been properly served by publication.

In either scenario above, the Petitioner can move forward for a Default Judgement after service has been properly effectuated without Respondent filing the necessary Response.
Default Judgements:
Default Judgements are binding court orders that are entered, generally without a hearing, in favor of either party to the lawsuit. With divorces, default judgement are commonly granted in the Petitioner's favor when the Respondent has failed to file the necessary Response in relation to the Petition and Summons.

In situations where the Respondent has been physically served with the Petition and Summons, the Petitioner can file a Motion and Order for Default Judgement after 30 days have passed with the Respondent failing to file the requisite Response.

In situations where the Respondent has been served by publication, the Petitioner can Motion the Court for a Default Judgment after the publication process is complete, and the Notice of Filing of Affidavit of Publication has been filed.

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Getting a Divorce after Living Apart for Years. | Family Law

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Oscar Wilde once wrote: "I never put off till tomorrow what I can possibly do the day after." Similar to Wilde, we all have an inborn tendency to procrastinate when faced with difficult decisions and action. The tendency to delay necessary action is particularly evident in the marriage context when a couple is legallymarried - yet mentally single and living separate lives.