Ten Mistakes That Can Haunt Your Child Custody Case in Albuquerque, New Mexico

 

 

In the holiday classic — A Christmas Carol — The Ghost of Christmas Future is a terrifying spirit that guides Ebenezer Scrooge on a tour of the bleak future that Scrooge will encounter if he continues making poor life decisions.

Today I will act as the Ghost of Time-sharing Future. In doing so I will outline mistakes that can haunt your child custody case and terrorize future time-sharing like a ghost in the night.

 

10.  Establishing a weak time-sharing schedule right after separation in Albuquerque, New Mexico:

 

I begin with this issue because it is arguably the most important on the list. It may seem counter-intuitive to award the most important issue last place, but according to the “primacy effect” one is more likely to retain information that is read first – so in this case last is first.

It’s saddening how many parents that I meet go through a separation, let a few months pass, wait for their parenting issues to reach a boiling point, and then seek legal advice.  The date of separation is the starting line to prepare yourself – not the date that parenting issues erupt after separation.

The time-sharing that you establish from the point of separation becomes the “status quo” in your case.  This “status quo” will haunt you – for better or for worse – until a court ordered time-sharing schedule is entered.

Establish your desired time-sharing immediately after separation. By doing so, you are establishing a “status quo” that the courts will be hesitant to disrupt.  Generally speaking, Albuquerque, New Mexico courts are reluctant to change status quo time-sharing because children flourish under the twin pillars of consistent and predictable time-sharing.

For any number of reasons, one’s child custody and time-sharing case could find its way into court.  Possibly the parents do not agree on the appropriate parents time-sharing schedule.  Potentially, one parent is calling the shots and dictates when communication or time-sharing takes place.  In most scenarios, the court will set an initial hearing where the facts are discussed.  During this hearing, if the parents cannot agree on the appropriate time-sharing schedule, the court will likely enter a temporary order that continues the “status quo.”

At the initial hearing, when the parents cannot reach an agreement on the appropriate time-sharing, the court generally refers the parents to “Court Clinic” for mediation.  During mediation, a trained mediator attempts to guide the parents towards an amicable agreement.  When mediation fails, Court Clinic generally sets an “On-Call Consultation” where a Court Clinician interviews all of the parties and makes recommendations to the assigned Judge on the appropriate time-sharing schedule.

The Clinician’s Recommendations likely will gravitate towards the Suggested Guidelines, attached here: Suggested Visitation and Time-sharing Guidelines. As you can see, the Guidelines prefer younger children to have one primary caregiver, with short, frequent, and predictable time-sharing with the other parent. Nevertheless, the status quo that you have developed since separation will influence the Clinician’s Recommendations regarding ongoing, long-term time-sharing.

In other words, by establishing maximum time-sharing from separation you are developing a “status quo” that follows your case and influences the court’s ultimate decision.  In cases where the “status quo” exceeds the suggested guidelines, the court is inclined to continue the status quo, to ensure consistency and predictability.

In situations where either no status quo is developed – or a limited status quo is develop – the court is likely to adopt a time-sharing schedule that falls under the suggested guidelines.  As demonstrated by the attached Guidelines, this time-sharing could result in short, frequent, and predictable time-sharing, based on the child’s age.

Take matters into your own hands by establishing maximum time-sharing immediately following a separation.  By failing to take matters into your own hands, NM courts will likely gravitate towards the suggested guidelines attached above when determining the appropriate time-sharing schedule.

 

9.  Immediately moving out the marital residence, leaving children in the home:

 

This is a big mistake because it essentially creates a default “status quo” where the parent remaining in the home becomes the primary caregiver.  In this situation, generally speaking, the parent that leaves the home accepts a “weekend,” “every-other weekend,” or a limited time-sharing schedule.

Often a few months pass with this limited visitation taking place – establishing a limited status quo.  As time passes, the “weekend parent” becomes frustrated with being relegated to a restricted time-sharing schedule and may request additional time.   Often the primary caregiver feels a sense of empowerment, refuses to budge, and otherwise calls the shots regarding communication and visits.

The “weekend parent” seeks legal advice after the undesirable status quo has been formed and cemented over time.   A custody case is eventually opened.  The status quo follows the “weekend parent” through the legal process, with a domino effect taking place.

The domino effect begins when the status quo is developed.  When a case is opened, the status quo tips over and influences the court’s temporary time-sharing order.  The temporary order influences the court clinician’s recommendations, which in turn affects the judge’s ultimate decision regarding court ordered time-sharing.

 

8.  Filing for child custody after your ex has already left New Mexico:

 

This common issue creates jurisdictional issues that can greatly complicate your custody matter.

 

7.  Posting about one’s fun and wild life on social media:

Social media posts are routinely introduced as evidence in child custody matters.  The pictures that you post can be used against you. The incriminating and detrimental statements that you make can be used against you.

Big Brother is watching your social media.

Big Brother is waiting for you to post something that demonstrates your instability, substance abuse issues, anger, violent temperament, erratic lifestyle, etc.

Imagine a Judge presiding over you from above, looking down at you while reading your post.  Keep in mind that this is the same Judge that will be judging your credibility, stability, and ultimately deciding what time-sharing is appropriate.

The Judge reading your “cool” post has immense discretion (power) to determine the “best interests of your child.”  It is extremely difficult to successfully appeal and overturn a Judge’s determination regarding the appropriate time-sharing.

Before you hit “SEND,” ask yourself: Do I want my assigned Judge reading the “cool” post that I’m about to unleash?

 

6.  Numbing the pain of separation with drugs or alcohol:

 

Separation and divorce is routinely listed as one of the worst life events that one can encounter.  Country music as we know it would no longer exist if breakups were easy, fun, and enjoyable. Breakups suck.  Accordingly, at times people going through breakups will use drugs or alcohol to numb the pain.

Drug and alcohol abuse is one of the more common issues addressed in family court.  Parents routinely argue that the other parent is unfit or unable to adequately care for the child based on drug or alcohol abuse.

Judges’ routinely order parents to take a six month hair follicle test.  Additionally, a PEth test is now available that examines one’s enzyme levels and can detect if excessive drinking has taken place up to 21 days before the test was administered.

I cannot over emphasize the negative impact that a positive drug or alcohol test can have on one’s custody case – especially with conservative judges that detest the use of mind-altering substances.

 

5.  Reacting violently and getting hit with a Temporary Order of Protection in Albuquerque,New Mexico:

 

Breakups that involve child custody disputes go hand-in-hand with Restraining Orders (i.e. Order of Protections). Generally, police refuse to become involved with time-sharing disputes unless a court order outlines time-sharing.  Because of this fact, parents without a time-sharing order are thrust into a gray area where one parent can potentially keep the child and the police will not get involved.

Restraining Orders are routinely filed during child custody disputes that lack a court order for guidance. The Restraining Order process is ripe for abuse because NM courts generally error on the side of caution and enter a temporary order that grants one parent sole legal custody until a hearing is held.  By Albuquerque, New Mexico law, the hearing must be held within ten days from the date that the Petition is filed.  Nevertheless, this 10 day requirement is routinely extended for “Good Cause Shown.”

Several weeks often pass before a hearing is held regarding the baseless claim contained in the Petition.  In the meantime, one parent is left without any contact or communication with the child.

In situations where the Special Commissioner determines that by a “preponderance of the evidence” an act of abuse occurred, the Commissioner has jurisdiction to enter a “permanent” Order of Protection.  “Permanent” is an illusory word and the Order of Protection generally lasts for six months to one year.

When an Order of Protection is entered, the DV Division assumes jurisdiction for six months to enter a temporary order regarding child custody, time-sharing, and child support.

As discussed above, this temporary order then forms the “status quo” that can negatively impact long-term time-sharing, once a DM case is opened with either a Petition for Dissolution of Marriage, or Petition to Establish Paternity.

 

4.  Sending insulting, threatening text messages:

 

A Petition for Order of Protection is routinely based on harassing or threatening text messages, emails, or correspondence.

Always communicate with your ex as though a disgruntled Judge is reading every word that you send.  Do not send insulting or threatening text messages, letters, or emails.  Keep your communications short, formal, and related to the child.

By sending emotional text messages that are loaded with expletives and threats, you are opening the door for your ex to file a Petition for Order of Protection.  As discussed above, NM courts lean on the side of caution and generally will enter a Temporary Order, which prevents contact and communication until a hearing is held.  Most importantly, this Temporary Order also routinely prevents visitation and communication with one’s child until the hearing is held.

Do not give your ex ammunition to file a baseless Petition for Order of Protection that can prevent you from visiting or communicating with your child until a hearing is held.  Do not give your ex ammunition to demonstrate that an act of abuse has occurred, warranting a permanent Order of Protection being entered.

Order of Protections carry a handful of adverse consequences that reach beyond one’s custody case. Under federal law, one’s right to own or possess a firearm is abrogated while the Order is effective. Additionally, the Order can adversely affect one’s security clearances and rental leases – all while haunting one’s custody case and future time-sharing.

 

3.  Failing to be listed on the child’s birth certificate or putative father registry:

 

Are you a Father? Was your child born outside of marriage? If you answered yes to both of these questions then this final question could dramatically change your financial future: “Are you listed on the child’s birth certificate or did you sign an acknowledgement of paternity?”

The answer to this single question could cost you tens of thousands of dollars in child support.

For children born outside of marriage, child support follows one of two paths.  Walking along the first path is a father that is neither listed on the birth certificate, nor signed an acknowledgement of paternity.  For this father, child support can be applied retroactively to the date of the parents’ separation.

Walking along the second path is a father that is either listed on the child’s birth certificate, or signed an acknowledgement of paternity.  For this father, NM courts generally follow the law established in Zabolzadeh v. Zabolzadeh, 146 N.M. 125, which holds that NM Courts have jurisdiction to determine child support from the date that a Petition to Establish Paternity is filed – not the date of separation.

Based on Zabolzadeh, a child’s parents could separate with years passing from the date of separation to the date that a Petition is ultimately filed.  If the father is neither listed on the birth certificate, nor signed an acknowledgement of paternity, child support begins mounting from the date of separation.  In the event that father is either listed on the birth certificate, or signed an acknowledgment of paternity, child support begins to accumulate from the date that the Petition is filed.

 

2.  Letting an ex call all of the shots while waiting to file for child custody or divorce:

 

Toxic relationships generally entail a degree of control or manipulation.  Break the pattern of control once the relationship is ended.  As discussed above, establish your ideal time-sharing schedule from the moment you separate.  If your ex demands to control the situation, immediately seek legal advice to file the appropriate motion.

As time passes with your ex calling all of the shots, the roots of your weak “status quo” strengthen.  Take immediate action and slash the undesirable “status quo” from the stem.  The date of separation is the best time to take control.  If the date of separation has already passed — the second best time to act is now.

 

1.  Waiting to get involved with the children:

 

At the risk of sounding like I’m trying to be your life coach – the time to get involved with your children is NOW.  New Mexico courts consider a parent’s level of involvement, bonding, and the resulting attachment when determining the child’s “Best Interests.”

Establish yourself as the primary caregiver, by getting involved with the following activities:

• Attend prenatal medical visits;
• Take time off from work when child is born;
• Get up with child for feedings;
• Bathe, potty train, and put child to bed;
• Prepare meals;
• Help child learn numbers, letters, colors;
• Take time off work for child’s appointments;
• Take child to doctor, dentist, other appointments;
• Haircuts, clothing, school supplies, crafts, etc.;
• Participate with school functions, day-care activities, sports, extra-curricular activities; and
• Immediately become involved with your child’s life. Do not wait until your separation to become concerned and involved.

As you have seen from the discussions above, the actions that you immediately take transform into a “status quo.”  Over time, this status quo gains momentum, moving forward with a force that can become difficult to change.

 

(505) SANCHEZ IS HERE TO ANSWER YOUR QUESTIONS ABOUT MISTAKES THAT CAN HAUNT YOUR CHILD CUSTODY CASE IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions about mistakes that haunt your child custody case in Albuquerque, New Mexico?  Custody cases often require the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez is an experienced custody attorney in Albuquerque.  Sanchez stops you from making custody mistakes that can haunt your child custody case in Albuquerque.  Sanchez can be reached by calling (505) SANCHEZ.