The Second Judicial Court Clinic in Albuquerque is a group of professional family therapists, counselors, psychologists, and social workers who work for the court. They are called Court Clinicians. Court Clinicians sometimes get involved when there are issues relating to when and for how long the children will be in each parent’s care, both on a regular basis and for vacations and holidays (also known as “timesharing” or “physical custody”). They also are called in when there is a dispute as to whether both parents or only one parent should make important decisions for the children, such as which doctor the children should see, where they should go to church, which school the they should attend, and where they should live (also known as “legal custody”). The Court Clinic’s role is to assist the court in determining what timesharing and legal custody arrangement will be in the child’s best interests. The Court Clinic does not address child support, spousal support, or division of marital property. Court Clinicians do not represent either party and they cannot give you legal advice.
If you were referred to the Court Clinic, it was probably for mediation, an On-Call Consultation, a Priority Consultation, or an Advisory Consultation. Sometimes it can take several months to get an appointment with the Court Clinic, but resolving disputes there can be much less expensive in the end than resolving them through other means.
If a judge or a hearing officer sent you to the Court Clinic, he or she will probably wait to decide custody and timesharing issues until the Court Clinic process is complete. Judges usually adopt the Court Clinician’s recommendations, so it is important to take the process seriously.
When there is a custody dispute, the parties are often referred to mediation. The mediator’s job is to help the parents reach an agreement. At mediation, both parents will have a chance to present what they think timesharing and legal custody should be, so you should write out your schedule and any proposals and bring those to the mediation. Try to think of a way to address holidays, summer vacations, transportation, and exchanges that will be in your children’s best interests. In general, you should not discuss the court clinic process with your children.
At first, the Court Clinician meets with the parties only: lawyers do not attend, and you should not bring your children, new partner, relatives, or anyone else. If you, the other parent, and the mediator agree that the mediator should interview your children, you will schedule a separate time for that meeting. If the mediator does meet with your children, rest assured that he or she is trained to work sensitively with children. Your children will not be asked to choose between parents.
The purpose of mediation is to try to agree on timesharing and legal custody, but you are not required to agree to anything. Everything said or written in the mediation is confidential and cannot be used in court, although the mediator is required by state and federal law to report suspected child abuse or a risk of harm. The mediator will tell the judge whether or not you reached an agreement, and any terms of the agreement. If you do not reach an agreement, then the court will schedule another hearing to determine what next steps are appropriate. If mediation is not successful, the court may order a Priority Consultation, an Advisory Consultation, or a Custody Evaluation. The court may also simply issue a ruling on the timesharing or custody issues.
“On-Call Consultation” refers to when a judge or hearing officer asks the Court Clinic for assistance during a hearing. The judge or hearing officer can ask the Court Clinic to perform a mediation or prepare a report and recommendations, as in an Advisory Consultation or a Priority Consultation. To make matters more confusing, sometimes the court orders a “Scheduled On-Call Consultation,” which is an On-Call Consultation that is set for another day.
Priority Consultation (PC)
Priority Consultations are for when the judge or hearing officer requests a brief assessment of the parties and/or the children in order to learn specific information. Usually, Priority Consultations are conducted within three weeks of the order being entered, so they are generally slower than an On-Call Consultation but faster than an Advisory Consultation (see below).
- Meet with parties
- Observe parties w/ children
- Additional meetings as necessary, including others (collateral sources)
- Written report & recommendations issued by the Priority Consultant
- 11 days to object
- If no objections, adopted by court
Advisory Consultation (AC)
An Advisory Consultation is an evaluation of the current parenting situation and a recommendation of what it should be going forward. The parents pay a fee for the Advisory Consultation that is based on their income and the number of children.
An Advisory Consultation begins with an initial assessment, at which the Court Clinician will meet with the parents separately. The clinician may observe interactions between the parents and the children. After the initial consultation, the clinician may conduct psychological tests or interview other people who may have relevant information, such as relatives. This process can take several months. When the process is finished, the judge will set a hearing for the clinician to present a summary of her findings and her recommendation as to the custody and timesharing arrangement that would be in the children’s best interest.
In making a recommendation, the Court Clinician has several tools in his or her toolbox. The clinician can require that visits be supervised by an organization like APN Family Services or by a friend or relative of the parents. The clinician can recommend classes in parenting or anger management. In some cases, the clinician recommends that the parents submit to random drug testing. Sometimes the Court Clinician recommends long-term plans like ongoing counseling for the children or the parents.
11-706 Custody Evaluation
Sometimes the court appoints a private psychologist outside of the Court Clinic to investigate the custody situation and prepare a report and recommendations. These are sometimes called “Rule 706 Custody Evaluations” in reference to the court rule that gives the judge to order such an evaluation. This is like an Advisory Consultation, except that it is usually more in-depth and expensive.
This article is focused on the Second Judicial Court Clinic, which only gets involved in cases filed in Bernalillo County. However, there are some similar programs in other counties.
Most people feel nervous when meeting with a lawyer, especially when they are also dealing with a major change in their family life. Take a deep breath. I promise I don’t bite. Here’s a little bit about what to expect in our first meeting.
My initial consultations take about 1 ½ hours on average. Based on experience, I find that clients stop absorbing information after that amount of time and sometimes they are emotionally exhausted.
We’re going to have a detailed conversation. I am primarily going to listen to you. I will ask questions to guide the discussion so I can get a better picture of what’s happening in your life and to learn what are your primary concerns and goals. You will also have ample time to ask me questions. I suggest you write down your questions before you come, and then go over the list before we conclude the meeting to be sure you haven’t forgotten anything.
What specific things are we going to talk about?
Divorce: In general, divorce includes four broad topics – property, debt, children (if applicable), and alimony (also called spousal support). If there are minor children involved, then we will discuss custody (legal custody, which is decision-making rights and responsibilities) and physical custody (which is when the children will spend time in each parent’s care). We will also talk about how the bills get paid and money to live on while the case is proceeding, which is called the Interim Allocation of Income and Expenses.
Unmarried parents: If you are not married to your children’s other parent, we will focus our conversation on custody and child support matters. New Mexico does not allow alimony (called “palimony” in other states) if the couple was unmarried; however, sometimes the parents have bought major items of property together – such as a house, business, vehicles, etc. – that need to be divided when they break up.
Grandparents raising grandchildren: We will talk about your role in taking care of the children in the past, what is happening now, and what are your concerns for the future. I will go over the difference between grandparent visitation versus kinship guardianship or actual adoption. I will want to hear about the whole family dynamic – your relationship with each parent of the grandchildren, what you have done to contribute to taking care of the children, why you believe one or both parents are unable or unwilling to take care of the children now, and what are your long-term goals in terms of caring for the grandchildren.
What papers should you bring to the meeting?
New court cases: Generally, if there is no pending court deadline or hearing, it’s not necessary to bring any papers with you for the initial consultation. Some people feel more confident if they have a checklist to help them prepare for meetings. My Potential Client Questionnaire outlines the factual information we will discuss about you and your family. You can ask to have it emailed to you in advance, fill it out, and bring it with you if you wish.
Pending court cases: If you were served with court papers, such as a Petition for Dissolution of Marriage or Temporary Order of Protection, please bring those pleadings with you or email them prior to your appointment. I will need to read them.
Enforcement or modification of an existing court order: If you or the other side is trying to enforce or modify a prior court order, then bring the Motion to Enforce / Modify as well as the prior order being enforced or modified. I will need to read them.
Legal Procedure Options
Nowadays, families have options for resolving their disputes. You can still go to court and let the judge make the decisions, but you also can take more control over the ultimate outcome by utilizing either the Collaborative procedure or mediation / settlement facilitation. We will discuss the various legal procedure options during the initial consultation.
Representation & Fee Agreement
At the end of the initial consultation, I will provide you with the Representation & Fee Agreement. This is a contract that spells out the responsibilities each of us as if you choose to hire me to represent you. It explains my fees and your payment obligations. The retainer is set. I do not become your lawyer until I receive both the Agreement (signed in the presence of a Notary Public) and the retainer.
What happens next?
There is usually a flurry of activity at the beginning of a case. You will work closely with the paralegal in gathering documents and financial records. The appropriate pleading will be drafted. If there is a court hearing coming up, I will prepare for it and prepare you for what you will likely do in the courtroom. We will go to court together, if the issue is not settled in advance.
There are no dumb questions
If you don’t understand something, speak up! This is your life and we want you to understand exactly what’s happening every step of the way.
If you’ve never been to court before, it can seem scary. I will try to de-mystify the experience and hopefully alleviate your fear.
What should I wear?
Men should wear a button down shirt, dress slacks and nice shoes. If you wish, you can wear a suit. Dressing properly – like you were going to a job interview or important event – shows the judge that you respect the process and acknowledge the importance of the occasion.
Women should wear a dress, nice skirt or slacks, and a conservative blouse or sweater. If you wish, you can wear a suit. Skip the super short skirt or dress, and sexy tops. Again, think about how you would want to present yourself if you were going on a job interview.
Arriving at the courthouse
Get there early. You never know if there will be traffic, bad weather or anything else that might cause a delay. Confirm in advance where you will meet your attorney. Ask the legal assistant about where to park.
Everyone has to go through security, similar to the airport, except you don’t have to Continue reading
What does “Dissolution of Marriage” mean?
“Dissolution of Marriage” is just another way of saying divorce. When two people get divorced, they are dissolving the marriage. Once the judge signs the Final Decree of Dissolution of Marriage, the spouses are no longer married to each other.
What is Legal Separation?
If the spouses no longer wish to live together and they want to make legally enforceable agreements on how to divide their property and debts, or how they will raise the children, they can do this by obtaining a legal separation without getting divorced.
Is a Legal Separation process different from a divorce?
In New Mexico, you go through the same exact court process and deal with the same exact issues (property, debt, children, and alimony) in a legal separation as for a divorce, except at the end of a Legal Separation, you are still technically married to each other and cannot marry someone else.
My spouse and I don’t live together any more – are we legally separated?
Just living in separate households or no longer having intimate relations does not mean you are “legally separated”. That status requires a court order.
What issues need to be settled to finish a divorce or legal separation?
There are four issues that need to be settled to finish a divorce or legal separation: Property, Debt, Minor Children (custody, visitation & child support) and Spousal Support / Alimony.
What is a Divorce Lawyer? Are they different than other lawyers?
A divorce lawyer is an attorney who represents people going through a divorce. Divorce lawyers are also referred to as a family law attorneys, domestic relations attorneys, matrimonial lawyers, and other names. Such lawyers also handle custody and visitation cases where the parents are not married to each other. They also usually represent clients in domestic violence cases, grandparent visitation or guardianship cases, legal separations, etc. Basically, if the situation involves a family breaking up or raising children, most divorce lawyers can handle it. Note that not all family law attorneys handle adoptions.
Do I have to go to Court if we have an Uncontested Divorce?
A true uncontested divorce is one where both spouses have reached agreement on all issues of dividing property and debt, alimony, and the children (custody, visitation and child support). In those situations, it’s a matter of preparing the appropriate court pleadings, submitting them to the judge to review and approve, and then getting the Final Decree of Dissolution of Marriage issued – all of which can be done without ever appearing in court or seeing the judge face to face.
I was just served with court papers – what do I do now?
Take a DEEP breath. Do it again. Find a quiet place, sit down, and read through the papers once to look for the date and time of any court hearing or deadline to file an Answer or responsive pleading. Then read through all the paperwork slowly and try to understand the gist of the legal language. Write down questions you have. Don’t feel stupid if you’re unable to comprehend everything. Lawyers went to school for many years and use their own language.
How is child support determined in New Mexico?
Child support in New Mexico is set by the statute known as the New Mexico Child Support Guidelines. It is a straight forward formula that looks at the gross income (before taxes and withholdings) of both parents, multiplied by the number of children. The formula tells you what the “base” child support will be. Added to the base child support is the cost of medical insurance just for the children and the cost of work-related daycare. Sometimes there are “additional expenses” put on the child support worksheet such as private school tuition, regular medical expenses (orthodontist work, prescription medication, co-pays for therapy, etc.) and the cost of car insurance for teenage drivers.
What’s the difference between custody and visitation?
“Custody” addresses whether one or both parents has the power to make decisions about the child whereas “visitation” covers when the child will spends time in each parent’s care.
What does “joint custody” mean?
Child custody means decision-making power, not when the children spend time with each parent. Parents most often receive joint legal custody in New Mexico. Joint custody means that each parent has the right and responsibility to participate in making decision about five key areas of the child’s life such as:
When a couple owns a family business, the divorce has to deal with the breakup of both the family and the business.
How is the business taken into account in a divorce?
If a couple starts a business while married, then the business is community property, even if only one spouse actually worked in the business. It is valued like any other kind of community property (house, investments, retirement benefits, etc.), which means figuring out what the business is worth (assets minus debts the business owes).
When there is recent abusive behavior between a couple – whether physical violence or severe emotional or sexual abuse – you can obtain a restraining order against your spouse or partner under the Family Violence Protection Act. NMSA §40-13-1 et seq. It is not necessary to call the police to obtain a restraining order, but please call the police if you or your children are in immediate physical danger. For further information, see Detailed Answer below.
Establishing paternity is very important to a child or children. It provides many emotional benefits for the child or children and legally entitles the children to the same rights as those of a child whose parents are married.
What is Paternity?
Paternity is the legal status of fatherhood. In New Mexico, this means that a court or government agency has determined which individual is biologically the child’s father, often through paternity (DNA) testing. It can also be established voluntarily by the parents when they sign an affidavit and file it with the Department of Health. A paternity case involves minor children when the parents are not in a legally recognized marriage.
Within one of the many email blogs I receive I came across a very interesting organization known as the National Network to End Domestic Violence (NNEDV). They have a very informative website with easily accessible and downloadable content. I would like to share the following link with my clients and other attorneys, regardless of whether domestic violence is an issue within their particular situation or not:
Be safe on Facebook. Facebook seems to be a daily part of most people’s lives nowadays. I don’t think that everyone grasps the potential dangers and just how compromised one’s privacy is while online. Nor do most people understand how controllable it all is, and that with the proper education and precaution, Facebook can be quite harm-free and enjoyable, as it should be.
Thanksgiving, Christmas or Chanukah are not going to be the same, so don’t expect them to be. Here are some tips for getting through the holiday season while your divorce is pending or the first year as a newly-single adult.
Wipe the slate clean – Divorce is as much about new beginnings as it is about endings. You now have the opportunity to celebrate the holidays the way you want to, not how you’ve always done or how the larger family expected you to. Maybe you hate turkey; eat a hamburger or veggie pizza instead. Maybe you can’t stand your wife’s brother and how he dominates every conversation on Christmas day. Now you don’t have to listen to him anymore. Maybe you are Continue reading
A deposition is one tool in a lawyer’s tool box to find out information to prepare a case for settlement negotiations or for trial. A deposition is similar to interviewing a party, witness or someone with specific information about a case. The interview is done under oath, with a court reporter recording everything that is said by the lawyer asking the questions and Continue reading