Family laying on the couch reading together

“Parentage” cases occur when a couple have a child together and were never married. The procedure for a parentage case falls under the “New Mexico Uniform Parentage Act.” Marriage creates a legal presumption of paternity, so in a parentage case the court will have to look to other factors to indicate paternity, such as the father’s name on the birth certificate, signing an Acknowledgment of Paternity, or living with the child and acting as the father for the first two years of life. Establishing one of the statute’s factors creates a “presumption” of the parent-child relationship (i.e. the court will assume parentage is true unless it is denied). When the court “adjudicates” paternity with a court order (which makes paternity legally binding), the court will look for these factors; however, if one parent contests paternity, a DNA test will be ordered. Once paternity is established, the court will enter orders for custody and child support.

Custody in Parentage Cases

Parentage cases come to the court in a wide range of circumstances. In many cases, it is difficult for parents to come to an agreement on timesharing for their child without court intervention. Differences in schedule, differences in parenting styles, and disagreements stemming from the personal relationship between the parents can all interfere with out-of-court agreements. Despite all these complications, the court’s ultimate goal will be for a child to have a positive relationship with both parents. There are several different kinds of custody and timesharing arrangements that can be made depending on the needs of the child, the child’s age, and each parent’s desire for timesharing. Even an equal timesharing plan (commonly referred to as “50/50”) can be equal in different ways, such as alternating weeks, alternating 2-2-3, or a rotating 5-5-4. If the parents are in agreement, the court will give parents a lot of leeway in coming to a schedule that works for the family. If you ask the court to decide, the schedule will be up to the judge or any third parties that are asked to investigate on behalf of the court.

Parents should be aware that the court rarely makes dramatic changes to custody absent extraordinary circumstances. The living situation of the child prior to the court case (the “status quo”) will likely impact the court’s custody order. If the parties have established a “status quo” of a primary parent and a non-custodial parent, the non-custodial parent is more likely to experience gradual changes toward equal custody, rather than big leaps. The age of the child also has a big influence on the court’s decision of a timesharing schedule. Younger children are more likely to have a primary parent with frequent contact with the non-custodial parent, and move toward a 50/50 as they get older. Young children who are put on a 50/50 schedule are frequently rotating between households for short periods of time so there is constant contact with both parents, and as they grow older the schedule can lengthen and accommodate longer periods of time in each household.

Third-Party Custody Evaluators

There are several types of third-party actors that can get involved in a custody case. If the court wants more information on the parent-child relationship and the best interest of the child, the judge will appoint a third party to assist in the investigation and provide recommendations to the court. Some courts have personnel specifically assigned to act as mediators or to conduct interviews and make recommendations (such as the Second District Court’s “Court Clinic”). A Guardian ad Litem could be appointed, who is an attorney hired to represent the children’s best interest and make recommendations to the court. A “706” Custody Evaluator could also be appointed, who conducts psychological testing and interviews to come to a conclusion and recommendation for custody. Some cases do not require third party intervention, but if a third party is considered, it is important to establish the pros and cons of each option before bringing the request to the judge.

Child Support in Parentage Cases

Parentage cases face some unique situations compared to a divorce with children. In a divorce with children, income is divided while a divorce is pending, and so child support is not generally ordered until the end of the case, and there is no case for child support arrears. Parentage cases, however, can establish child support immediately, and very often include orders for child support arrears.  Unless the father has signed an Acknowledgment of Paternity, parentage cases can include orders for child support arrears for up to twelve years prior to the court case. Once child support arrears are ordered, the paying parent must pay not only ongoing child support, but an additional amount each month to pay off the arrears. Some parentage cases are begun when the child is very young (or perhaps while the mother is still pregnant), but that is not always the case. In fact, a parentage case can be brought at any time in a child’s minority (and in some cases after the child has turned 18).

Calculating child support arrears can become a very time-consuming and difficult process. The non-custodial parent can lower an order of child support arrears by showing proof of financial support given to the custodial parent or that the parents were living together. Therefore, the arrears calculation process can depend in part by the record of payments kept by the person providing financial support. Cash payments can be a problem because they are difficult to trace. Checks or direct deposits into bank accounts, however, are easier to trace and provide evidence to the court of payments made. If payments cannot be traced, the paying parent runs the risk that the court will decide no payments were made. If arrears span multiple years, the court will consider each party’s income for each calendar year, resulting in multiple child support worksheets.

Child support in parentage cases is calculated pursuant to the statute’s formula. Factors for child support include the gross monthly income of the parents (i.e. before taxes), the number of children, and costs such as medical insurance and daycare. It is important to speak to an experienced attorney about calculating child support. Even though the child support formula can seem straightforward, several factors could affect a parent’s income on the worksheet (unemployment or underemployment, the age of the child, prior child support orders, etc.), and certain expenses could be added to the worksheet (such as extraordinary medical expenses or the cost of long-distance visitation).

Read more from the Mulcahy Law Firm:

Splitting Up With Kids: 5 Tips for Creating a Custody Plan