Don’t be fooled by the uncommonly hot weather scorching New Mexico without a hint of snow on the horizon. As these words trickle down the screen we are knee deep in winter and trudging our way through a New Year. Each year the new calendar creates a starting line for a fresh start and positive growth. Resolutions, however, aren’t limited to personal goals such as diet, health, and fitness — they also involve matters that affect the whole family.
Every year a growing number of New Mexicans reach a boiling point of frustration and demand to enforce their legal rights and fight for change. I routinely speak with people that are exhausted with their legal situation and have resolved to establish their rights, modify an outdated court order, or enforce an order that is being violated.
Let’s examine the top five family law issues that one might encounter on the road to necessary change.
5. Reconnecting with one’s child after an extended absence.
At times parents’ experience an extended absences from their children without communication or visitation. This hiatus can be caused by a number of different factors that include: incarceration, legal issues, substance abuse, relocation, one parent planting negative thoughts/feelings about the absent parent in the child’s mind, or any other reason preventing one parent from having an effective relationship with one’s child.
In these situations, time passes and the parent-child relationship deteriorates due to the lack of communication and visitation. After a period of time the absent parent might resolve the issue that caused the breakdown in visitation, and desires to mend the absence by re-establishing a relationship with the estranged child.
In situations where the parent-child relationship has eroded, the court takes a number of steps to repair the relationship. On one end of the spectrum the court may order small periods of supervised visitation through a neutral, monitored location such APN or Neutral Corner. In the middle, the court may order a parent to receive individual therapy for issues such as substance abuse, anger, or domestic violence awareness before communication and/or visitation resumes. On the other end of the spectrum, the court may order “Reintegration Therapy” where the parent works with a trained specialist to identify the factors that led to the breakdown in the relationship. Reintegration therapy also works with the child and parent to repair communication issues and proactively addresses any resentment or trust issues between the parent and child.
A parent looking to take the first step towards mending the damaged relationship generally must file a Motion to Modify with the court. This Motion must state that a significant and material change in circumstances affecting the welfare of the child has occurred that warrants a change to the current timesharing.
4. Enforcing a Court Order that is being flagrantly violated.
Court orders are not suggestions, requests, or proposals – they are requirements that carry harsh potential consequences for violations. Despite this fact, court orders are routinely treated by one party with complete indifference. At times the Marital Settlement Agreement resulting from one’s divorce is blatantly violated. Possibly one party refuses to transfer property, pay debt, remove one’s name from a title/note, or fails to make a good faith effort to sell the community residence, or otherwise follow the agreement.
In relation to child custody issues, one parent may refuse to follow the Parenting Plan by failing to pay child support, or refusing to follow the court order time-sharing arrangements.
The first step towards enforcing a court order involves putting the opposing side on notice of the violation and the need for litigation if the violation is not cured within a set period of time. In situations where the order is still being violated, one can file the appropriate Motion with the court, putting the assigned Judge on notice of the violation. Generally speaking, this act is accomplished through a Motion for Order to Show Cause, or Motion to Enforce. Both Motions essentially put the Judge on notice of the court order that is being violated.
The Motion for Order to Show Cause has a bit more bite than the Motion to Enforce, and requests the Judge to hold the violating party in contempt of court for their willful violations. Assuming that the Motion is properly filed and served, the court can take a number of different actions against the violating party. These actions run the gamut from lecturing the violator, awarding attorney fees/costs for the fees associated with filing the motion, holding one party in contempt of court, or even incarceration.
3. Establish the Paternity of one’s child.
At times parents are separated at the time of a child’s birth. There is no presumption of paternity for children born out of wedlock, and it is the Father’s responsibility to establish paternity. A father can establish paternity by being listed on the child’s Birth Certificate, signing an Acknowledgment of Paternity, or registering with the Putative Father Registry within 10 days from the child’s birth. Nevertheless, these three avenues of establishing paternity do not generate an enforceable court order regarding custody and timesharing. In other words, a Father could potentially be listed on the child’s birth certificate, sign an Acknowledgment of Paternity, or establish paternity through the Putative Father Registry, but still be denied visitation or communication with the child.
Fathers’ are routinely denied visitation with their child, for any number of different claims and reasons. APD generally refuses to get involved with custody and timesharing disputes unless there is an enforceable court order that clearly delineates one’s rights. In situations where a father is being denied contact or visitation, the father must establish paternity through the courts — by filing the requisite Petition to Establish Paternity, Custody, Timesharing, and Child Support. Once paternity is established the court will also enter a corresponding and enforceable order regarding custody and timesharing.
2. Modifying Child Support.
Parental rights also carry responsibilities. Child support is a parental responsibility that is either established during a divorce, or through the Petition to Establish Paternity discussed above.
In some situations one parent may waive the right to child support, or accept an amount of support that is lower than the child support guidelines. In other situations, the existing child support order is based on outdated factors that have changed, such as: (1) Timesharing, (2) Income, (3) Work-related Day Care Expenses, (4) Extraordinary expenses, (5) Insurance premiums.
Child support can be modified based on a substantial change in circumstances. The court presumes that the requisite change in circumstances exists when one year has passed since the existing child support order was entered and the total amount of child support owed each month either increases or decreases by 20%. Let’s say that the former court order required one parent to pay $100 in monthly support. One year has passed. Also, any of the 5 factors above (i.e. timesharing, income, etc.) have changed to a degree that the total amount of child support owed either increases or decreases by $20. In this situation, one can file a Motion to Modify Child Support based on the material change in circumstances.
Here’s the kicker – the child support is only modifiable back to the date that the Motion to Modify is filed. Therefore, a change in a parent’s income, timesharing, or any other factor by itself does not automatically trigger a change in child support. The change in child support is only retroactively applied to the date that the Motion was filed
1. Modifying custody and timesharing.
The word “permanent” in relation to timesharing is an illusory term. In reality, all “permanent” timesharing orders can be changed based on a substantial and material change in circumstances affecting the child’s welfare. Unfortunately, defining “substantial and material change in circumstances” is murky at best and New Mexico courts have not clearly defined the standard through case law. Because the standard is neither defined by statute, nor case law, Judges have immense power to decide what constitutes a material change in circumstances warranting a change to the existing timesharing schedule.
For practical purposes, examples of what generally constitutes a material change in circumstances include: (1) parental remarriage, (2) change in the child’s school, (3) substantial change to a parent’s work schedule, (4) disability, illness, substance abuse, or any other issue that directly affects the parents’ ability to care for the child, (5) relocation, (6) subsequent divorce, (7) remarriage, (8) abuse or neglect, and (9) developmental changes affecting the child.
Any of the factors above can be used as the basis for a Motion to Modify the outdated system of court ordered timesharing.