Paragraph A.  First, congratulations on being one of the lucky individuals in this decade still owning your home. Of course you want to do everything to save your home, unless maybe, you do not. If your home is upside down, you need to honestly consider whether or not you should let it go. If your home is $10,000.00 – $25,000.00 upside down, try to save it. Between the payments you will be making toward the principal and the turnaround of the market, which forecasters are saying is just around the corner, my opinion is that the house is worth saving.

Because this home is worth saving, you don’t want to move out because it can then be very difficult to get back in. Sometimes I am asked whether it can be viewed as abandonment if one leaves the house.  There is no abandonment unless you leave the home and stop all efforts at paying for the home. The problem arises if you leave the house in the hands of your spouse who then stops paying for the house. In certain instances, a party has already moved out and obtained alternate housing. That party is likely paying rent, thereby making it nearly impossible to afford both the now deficient house payment and the soon to be delinquent rent payment. Don’t leave the house.

However, if your house is more than $25,000.00 upside down, consider letting it go. But now be prepared to face the following: foreclosure, bankruptcy, and bad credit. Is it worth these risks? My opinion is that it probably is. A house that is so substantially upside down will take years to rectify, certainly more than five years. Your credit will not take that long to fix. In my opinion, paying $300,000.00 for a $200.000.00 house is like throwing $100 bills out the car window for 5-10 years. While your credit may not be at the level it is currently is in five years, it will be comparable. Let the house go.

Paragraph B.  The question I am most frequently asked is, “Should I move out if my spouse won’t let me take the children?”  The answer is a resounding “No!”  But like every other answer herein, the answer is qualified.  If your spouse is the primary parent and you have no opposition to your spouse remaining in that role, then there is no disadvantage to leaving the home as long as long as you also don’t wish to retain the home. If you do, then you also need to read the answers above in paragraph A.

However, it is never good to leave the home if you have no visitation arrangement in place even if you are okay with your spouse being awarded the lion’s share of the timesharing. I have many cases wherein once the spouse is gone, the first parent becomes super vigilant and refuses to allow any timesharing. While our office can quickly file a motion to obtain child custody timesharing for you, it is best to wait until an order is already in place before moving out. I am finding that the judges are more and more willing to order fairly equal timesharing for both parties even while the parties still reside together.

If you are hoping to be awarded primary custody, it is fairly imperative that you do not leave the home without the minor children.  As it has been the rule for over two centuries in this country, possession is 9/10′s of the law. Frankly, this applies to the home or the children. That supposition remains today. I have yet to see a parent who has left both the home and the children later be awarded primary custody, so do not put yourself in that position.

My advice to anyone in this situation is to move slowly.  Discuss the possibility of divorce with your spouse. Although in many instances this is not possible, a discussion before the fact is always better than running to court afterwards. Additionally, start practicing a timesharing arrangement while you still reside together. Your period of responsibility may, for instance, be the first three days of the week. On those days, make your child’s breakfast (and dinner), take your child to school, make arrangements for day care, etc. By doing this, you are setting the precedent for the court to act, whether are still in the home with your children or whether circumstances have caused you to leave.

Paragraph C.  Certain clients I represent have significant ownership of personal property. This may include art collections, antiques, or other valuable investments. Other clients run their businesses from the home. I always counsel these clients to stay with the home. There is certainly no disadvantage to leaving once the valuables have been divided, or well-documented if they not divided. As for the business, this is one of the best reasons for staying with the home, and the judge is more likely to award the home to the party with the business therein. It may even be a good strategy to pre-emptively move the business home if divorce is on the horizon.

In conclusion, be careful in any scenario where you leaving the home if you wish to retain it later. Exercise the same caution if your children, valuables or source of livelihood are in the residence. On the other hand, it may be prudent to move out if the home is financially upside down, if there are no significant valuables in the home, or if you are taking the children with you. Cortez Family Law can assist you in any of these circumstances.

We are not talking about spy rings or conspiracy theories. We are talking about your involvement with the phenomenon of social networking. Insofar as you personally are involved with websites such as Facebook, Twitter, MySpace, LinkedIn, etc., or blogging, the “electronic surveillance” we spoke of is occurring with your willing consent.

We put entirely too much information about ourselves on the Web. Although I find it personally distasteful, there are millions of people who enjoy the posting and publishing the minutiae of their lives.  (See never-ending chronicles of the minutiae.) Clearly, this phenomenon has been taken too far by those who choose to chronicle and have even filmed themselves committing crimes in public and then willfully uploaded these videos to sites such as YouTube for consumption. They are seemingly oblivious to the fact that such recordings, liable to be seen by millions of people, would eventually find their way to being reviewed by local press or law enforcement agencies.

Wherever your particular involvement with social networking lies, we are going to discuss the ramifications of social networking with the popular website Facebook as our main emphasis since it is among the top three most popular websites visited every day.  However, much (if not all) of this material will also be applicable to users of MySpace, and to a lesser extent, personal blogs.

Concerning Facebook, many Albuquerque family law attorneys will attest to one very critical fact; Facebook is a veritable gold mine for discovering information about opposing parties which can frequently lead to more advantageous outcomes with respect to custody, property settlements, etc. for those whom the attorneys are representing. In the course of researching some of our own cases, Cortez Family Law attorneys have found photographic and textual evidence of opposing parties’ involvement in activities such as drug abuse, giving alcohol to minors, and adultery. One opposing party frequently wrote on Facebook about how unhappy and annoyed she was with her children. These writings provided our attorneys with evidence compelling enough to have our client awarded primary custody of the children. It is worth repeating that, in all of the above examples, every piece of information we gathered from Facebook was posted there intentionally by the opposing parties.

Knowing all of this, your first (and probably best) inclination is to begin deleting any pictures, written comments, or other posts on your Facebook page which portray you in anything less than a favorable light. This is all well and good, but bear in mind that certain damage may already be done. If you were to upload to Facebook a photo of yourself (hypothetically) drunk and nearly passed out on the street, then decide to delete that photo as little as two minutes later, within that timeframe copies of that picture will have already been distributed to the Facebook news feeds of anyone currently in your Friends list who happens to be actively browsing Facebook at that time. Although the picture was deleted from your news feed, it takes very little time for any one of those other people to print, or download, a copy of that photo before it is recalled. The longer something unfavorable about you has been posted online, the greater likelihood exists that someone has already made a copy of it. With this in mind, we offer the following pieces of advice for regulating who exactly has access to what you post on Facebook:

1. Change the settings of your Facebook account from “Public” to “Friends Only” – By default, a brand new Facebook account is openly accessible to anyone, known or unknown to you, registered on that website. Your posts, pictures, etc. are visible to everybody. The preferred privacy setting for one’s profile is to limit its visibility to persons you have added to your “Friends” list. Refer to Facebook’s online help documentation for instructions on how to do this if you haven’t already enabled this setting. Make sure you set the privacy level to “Friends Only”, as opposed to “Friends and Friends of Friends Only”, for reasons which will be made evident in the below points.
2. Know who your “Friends” really are – There is a misperception in social networking that the more “Friends” we have associated with our Facebook profile, the more popular we in fact are. Common sense, however, suggests, that it is probably unrealistic for us to be directly (or even casually) acquainted with an excess of five-hundred or more people online and still be able to reliably account for every name and face. Take a close look at your Friends list and ask yourself, on a per-person basis: Do I actually know this person? Have I met him face to face? How many times have I had a real conversation with her? Anyone whom you cannot personally reconcile through direct experience should be removed from your Friends list. This is especially true of persons of whom your only knowledge is through online interaction, such as someone who initiated a Friend request with you, sight unseen. Opposing parties in family law cases have been known to fabricate completely false online personas for the sake of gaining access to the knowledge of another’s personal life.
3. Know who your real friends are – This sounds identical to item 2 above, but the distinction is important. Interpersonal relationships can be complicated. You and an ex-spouse may have a mutual pool of real-world friends, many of whom populate both of your Facebook Friends lists. Similarly, you may believe yourself to still be on good terms with some members of your ex-spouse’s immediate or extended family, such as your former siblings-in-law or an aunt residing in another state. So they, too, still inhabit your Friends list. In these instances, a breakup or a divorce has the potential to shift sympathies among shared friends oh-so-slightly to one side or the other, completely unbeknownst to you. Something slightly critical you write about your ex-spouse will eventually be made known by the “friend” who’s more in his/her camp than your own. Operating under the adage that “blood is thicker than water”, those former in-laws are much more likely to be – let’s not sugarcoat this – spying on you, and reporting back anything that gives their kinfolk leverage over yours wherever matters may be pending in family court. If you followed the advice in item 2 and reduced your Facebook Friends list to only people you know, then item 3 here is about reducing the list further to only people you can trust.
4. Remember that you’re not the only one with a phone and/or a Facebook account – Even if you have the foresight to not directly post pictures or write things on Facebook which can be problematic in regard to your family law matters, remember that there is a strong likelihood someone else can and will do this, with or without intention of harming your case. Using the example again of being drunk and passed out in the street, virtually everybody else at that same party is likely carrying a device which can photograph, film, tweet, text, or otherwise document and report your inebriated state to the world at large with no consent needed or given on your end. At the risk of sounding paranoid, anybody carrying a cell phone, or who has access to the Internet, has the potential to be spying on you. Keep than in mind before embarking on an action that may embarrass you later on if it is revealed.

In summary of the points above, never post online, or allow to be posted online, any evidence of behaviors, beliefs, or actions which you are not prepared to defend or explain to the world at large.

NMSA  § 40-9-1 1978 is actually titled “Grandparent’s Visitation Privileges Act.” While the Act does give grandparents, in certain circumstances, the right to petition the court for visitation, it does not obligate the court to grant the request for visitation, even under those circumstances. As noted in the title, grandparents’ visitation is a privilege, not a right, even if one or more of the threshold statutory requirements for filing the Petition are met.

Under the Act, a grandparent may Petition the Court for visitation privileges under the following circumstances (a.k.a. “threshold requirements”):

 if one the child’s parents have filed a Petition for Divorce or Legal Separation from the other parent;

if one or both of the parents are deceased;

If the grandchild resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild has been adopted or adoption is sought by anyone, including adoption by a step-parent;

Even if one or more of these threshold requirements are met, grandparent visitation with grandchildren is far from automatic. There are two significant hurdles that grandparents must clear.

First, the Family Court’s primary consideration will always be the best interests of the children. By the time you get to the point of seeking relief from the court, it is probably a safe bet that your relationship and/or communication with one or both of the parents is tenuous if a relationship exists at all. In this case, it is extremely difficult to convince the judge that it is in the children’s best interest to be exposed to the tension and anxiety that results from bad blood between you and the surviving parent or both parents. The court will find that it is better for the children to deny a grandparent’s request for visitation if that means that the children will not be exposed to animosity between the parent(s) and the grandparents. Consider also that if the court were to grant visitation notwithstanding feuding between the parent(s) and grandparents, the children would likely be subject to interrogation in both camps.

This leads to the second, and arguably higher hurdle grandparents face, which is the court’s reluctance to interfere with the parents’ fundamental right to raise their children as they see fit. “Fundamental Right” is a loaded legal term meaning it is a right earning the highest degree of protection by the courts. If the parent(s) both agree that it is better for the children not to have contact with grandparents, the court may support the parents’ right to make that determination. Parents fighting against one another over custody matters is one thing, because parents are usually on equal Constitutional footing with one another, so the Court is forced to decide those matters. Grandparents, on the other hand…not so much.  They will never be on equal footing with parent(s) pursuant to the Grandparent’s Visitation Privileges Act. This is important for grandparents to remember. Every Grandparent’s Visitation Privilege proceeding I have appeared in or witnessed has ultimately hinged on the quality of the relationship between the parent(s) and the grandparents. If the relationship is really bad, the Court will be less inclined to award visitation privileges to the grandparent.

As an Albuquerque Family Law attorney, I am not always able to tell clients what they want to hear. Sometimes I have to tell them what they need to hear. And grandparents need to hear that if the parent(s) do not want the children to have contact with the grandparents, the court may not force them to do so.

This is where attorney becomes counselor. When representing grandparents in this situation, my primary objective is to facilitate communication between the grandparents and parent(s). This involves identifying and addressing the parent(s) specific concerns in order to make them feel better about moving forward with visitation. Often times there are old wounds that need to heal. There is trust that needs to be rebuilt. Attempting meaningful communication is usually more constructive than resorting to the adversarial climate of a courtroom. Taking this type of issue before a judge is in fact likely to do more harm than good to the relationship. If the individuals involved are conscientious and honest about their concerns, that should be enough to begin building upon. In most cases, the conflict between parent(s) and grandparents did not develop overnight, so it is unlikely to be resolved overnight either. It is a process that takes time, and the attorneys at Cortez Family Law can help guide you constructively toward that goal.

So grandparents should be aware that the Grandparent’s Visitation Privileges Act might give you a legal right to ask the court for visitation privileges, but it does not mean that the court is required to award it.

Following the stabbing, the ruffians left the scene and the man, only “mostly-dead,” called for help repeatedly while stumbling down Darlington Place NW on Albuquerque’s Westside only to have his pleas fall on completely deaf ears. No one came to his aid. Eventually in a moment of desperation, he deliberately fell into the Richey family’s front window, and pleaded for their assistance hoping he had at last found his Good Samaritan.

Now if you think this is a modern day version of the Biblical Good Samaritan, you would be wrong. That is not where this is going.

Mr. Mueller has instead described being treated with absolute disdain. The Richey family, especially Mrs. Richey, has gone on record stating what a hassle this has been for them. She complains about the repair costs, the broken window, the irreparable carpet, the out of pocket deductible, all while treating the injured man with scorn and disdain. In addition to the financial ramifications, she says, is the fear that the incident has instilled in her children who can no longer sleep without nightmares”after the crazy guy broke into their living room.”

Why should THIS be what this family takes away from this situation? Why not the spirit of aid and kindness they could have provided, a sense of comfort to this possibly dying man. Other than the inconvenience and anger over the refusal of insurance of pay for their new wall to wall carpeting, this family said their children were now fearful. Granted, being awoken in the middle of the night by broken glass and a bloody guy is somewhat fear-inducing, but instead of teaching their children something good here, the Richey family of Darlington Street, taught their children to fear.

Fear is taught and Ms. Richey is well on her way to having fearful, insecure children and not because of Mr. Mueller. Instead of telling her children, “We were grateful for the aid we could provide Mr. Mueller. . .” Instead of saying “We wished we would have acted sooner and beg Mr. Mueller’s forgiveness. . .” Instead of saying “Children, this is what we do when people are injured and dying. .” Ms. Richey tells us the cost she is out of pocket for her carpeting. She is blaming Paul Mueller. She has taught her children to be fearful instead of helpful. Oh my poor children having to deal with this. Her poor children for having her as a mother.

Our family has had some fearful incidents. We live downtown and our home has been burglarized five times over the past five years, four times in one year. Two of incidents involved forays into our children’s rooms to steal their belongings. We have been in several car wrecks, one which involved being hit by a semi truck. My children could be fearful. They have every right to be fearful and sometimes they are fearful, but I will not teach them to be fearful and therein lies the difference.

There are many ways we can teach our children to be fearful and most if not all is in our reaction to everyday events. You don’t know how to swim, so you, in your failure to swim, teach your child to fear water. You fear new places and therefore avoid new places, but by implication also teach your child to fear new places.

Where I see a lot of fear is in my Albuquerque family law cases. One parent has rational or irrational fear of the other parent. Now what we are discussing is not rational fears. If a husband assaults his wife, she is right to fear her husband and the child has the right to fear his father. Rational fear is understandable but is not the subject of this blog. What we are dealing on a daily basis are irrational fears. Fears that the parent will withhold the child, steal the child, kidnap the child, smoke pot with the child, smoke crack with the child, let the child drown in the bathtub, let the child run wild, let the child fail to do his homework, etc.

In a consultation this week, the mother wanted supervised visitation for her 10-year old because the mother feared for the safety of that child. There had been one incident of domestic violence between mother and father four years prior, but nothing between father and child. While any domestic violence is unacceptable, this mother had allowed her fear to take over all rational thought when it came to this child and now this child was fearful of nearly everything and certainly fearful of his father to the point that all visits must be supervised until apparently the mother was no longer scared.

It’s like me on a cold day. If I am cold, my children must wear coats. Well, if I am afraid, then you must be too. I am not sure this is the lesson we want to teach our children.

I would rather teach my children how to avoid a child molester while walking to school rather than keep them from ever walking. I would rather teach them how to call the police, rather than how to avoid men with hats pulled low over the eyes. I would rather teach them to come to the aid of others, rather than how to be fearful when a stranger crashes through the living room window. And I would rather teach my children to love that other parent rather than to fear him.

You may hate that parent for what he or she did to you, how that person hurt you, but allow that child to love and your child will thank you for it.

Under what circumstances would a court order supervised visitation? As previously stated, supervised visitation is a necessity when serious physical or mental abuse has occurred and generally substantiated by CYFD. Supervised visits are also a necessity in drug or alcohol abuse cases.  The duration of the supervision will differ depending upon the severity of the abuse or neglect, or the level of drug or alcohol abuse.

The notion of supervised visitation may be imposed in a custody case when drug or alcohol abuse is alleged and the court orders drug testing. One party invariably tests positive for illicit drugs, and that party will be forced to do all visitation as supervised by one of the facilities delineated below. The Court will probably set a review hearing within three months while the violating party continues the supervised visits until the review hearing date. If that party has no further drug infractions, unsupervised visits may be reinstated. If, however, the drug abuse is long-standing and substantiated by the court or CYFD (as opposed to solely upon the word of the opposing party), supervised visitation could continue indefinitely.

Supervised visitation may also be imposed when one party alleges the other parent has harmed the child in some manner or another. In those cases, the Court is placed in the unenviable position of determining whether abuse occurred based on a “he said/she said” scenario. There may be allegations ranging in severity as serious as discipline with a belt or on-going verbal abuse, or as minimal as forcing the child to walk home from school, or even frequent crying from the child following a visit or statements of not wanting to return to the other parent’s home. I have seen the court implement supervised visitation under all of these factors.

What is expected when such allegations are made is that the Court will order an investigation, similar to what CYFD would undertake prior to the implementation of supervised visits.  This may include the services of the Court Clinic or guardian ad litem. What the court should not do is order supervised visitation without an investigation, based on the flimsy allegations of one parent. I find those cases terribly unfair and I see these cases quite typically with certain judges.

In one recent case, our firm represented the father.  He had had a terrible time obtaining reasonable timesharing with his son. The mother refused to allow any visitation other than that supervised by herself.  Through our firm and after a lengthy court battle, the father finally obtained unsupervised visitation with his three year old son.  He had two visits when the mother filed a motion to reinstate supervised visits.  The mother reported the child was “acting out” after visits with father. The judge reinstated supervised visits based on nothing more than mother’s statements that child was “reacting.”

In another case, supervised visits were initially justifiably imposed by the judge because of the father’s chronic alcoholism. However, five years later, the supervised visitation was still being imposed! The father had stopped drinking years earlier, but the mother would not agree to unsupervised visits, nor apparently would the judge.

Judges tend to err on the side of caution in these cases, but I really believe the notion of supervised visitation is completely overused and is not in the children’s best interests.  If allegations of drug abuse or physical abuse are made, a very simple investigation can be undertaken to determine if the abuse has occurred.  If CYFD investigates and does not substantiate the abuse, supervised visitation should not be imposed. If CYFD is not investigating, then the court clinic, guardian ad litem or even the court itself can undertake a very simple investigation and order drug testing. If there are no factors justifying supervision, supervision should not be imposed.  If there is no abuse, but only flimsy allegations by an overly controlling parent, perhaps it is that parent who should be supervised. However, more often than not, the courts are kowtowing to those parents to the detriment of the other innocent parties involved.

If supervised visitation has been ordered in your case, there are three private facilities in town that provide such supervisory services:

• APN Family Support Center is located in downtown Albuquerque at 700 Lomas Blvd. My records show it was founded by Jeri Miller in 2002. Its facility consists of an older home with several rooms devoted to visitation including rooms devoted to toys, movies or kitchen facilities. Cost is generally $25.00 per hour.
• Neutral Corner, located on Nob Hill at 118 Dartmouth, is also a private supervising agency, although Youth Development Inc (YDI) recently took over management according to YDI’s website. Its setup is similar to APN’s and the cost is approximately $20.00 per hour, also offering sliding scale fees.
• Family Services is located at 1520 Deborah in Rio Rancho. It too has been in existence approximately 10 years and like the other agencies, charges $20 to $25.00 per hour.

Another alternative is Mr. Paul LaBarre, a locally trained parenting coach often retained by the courts or individuals to supervise visits and/or provide parental coaching.  He might offer disciplinary techniques or counseling to a parent he overhears inadvertently disparaging the other parent or berating a child. Mr. LaBarre charges from $25 – $40.00 per hour and accompanies the parent and child on various outings as decided by the parent.

As far as agencies go, I strongly prefer APN over the other two facilities. Ms. Miller retains a well-trained, friendly staff who are not easily drawn into the pathos brought into the agency by the sparring parties.  While Neutral Corner has the benefit of a sliding fee scale, APN has supervisors that will accompany the parent outside the agency, to the family members’ home or to places such as Chuck E. Cheese or movie theaters. Neutral Corner has grown less palatable since been taken over by YDI and retains a strong institutional feeling.  The parent being supervised is treated like a presumed criminal. APN, on the other hand, seems to view everyone in a neutral manner.  I have not yet had significant dealings with Family Services of Rio Rancho.

At the supervising agencies, one can expect two to four hours with the child in a sterile environment while your every move is observed by a younger person working in an intern-like capacity taking copious notes which will later be subpoenaed into court by both sides hoping to prove their respective case. I think it is very difficult to promote a normalized relationship between a parent and child in such a setting. Judges should keep this in mind when they order supervised visitation as frequently as it seems to occur.

First, Thanksgiving is important as a holiday. It’s important historically speaking as an element in the founding of our country.  It is also important as it leads into the whole season of giving. But most importantly, it is a day to reflect on what we have to be thankful for. And for this reason, it should not be forgotten, or relegated to the status of “Black Friday Eve.”

For myself, Thanksgiving brings a host a good memories and warm feelings. In anticipation for the holiday, I love perusing my recipe collections from past years or trying the latest Emeril or Rachel Ray recipe for that perfect turkey, dressing and green bean casserole combination.  I love the sense of spirited competition with my sisters-in-laws for the honors for best pie (the winner is determined by whose pie plate is emptied first). I love watching the first holiday movie with the family, and even the tradition of going around the table professing that for which we are grateful.

However, so many accounts in the news of this past weekend emphasized much more of the shopping deals to be had (from mid-night to 6:00 and 6:00 to noon and noon to 4:00 and 4:00 to closing .  .  .), or alternatively reports of fisticuff assaults on the Walmart sales floor over the latest 46” television.

Additionally, in my own post-Thanksgiving forays into the shopping melee, all of the conversations I overheard were from workers lamenting their lost holiday due to extended hours. Even the shoppers, while certainly relishing some of their hard-found deals, were tired, cranky and not very thankful since most of their promised bargains were sold out to the first 35 customers of the night.

So it seems that not only was Thanksgiving Day itself lost this year but also lost was its spirit. Those grateful attitudes and lazy naps on the living room couch after a hefty infusion of tryptophan with family and friends have been supplanted with queuing irritably for hours on a cold sidewalk with strangers, subsisting on caffeine and self-inflicted frustration.

Is it worth returning to the Thanksgivings of lore?  Sally Brown from Peanuts would argue, “What do I have to be thankful for?  All it does is make more work for us.”  Well, a spirit of thankfulness is a lot of work. Sometimes it takes effort to find what to be thankful for, whether it be those contentious family members, horrible bosses and dead-end jobs.

In Judeo-Christian culture there is a lot to be said for thankfulness. The Bible dedicates basically an entire book to thankfulness, the Psalms.  David wrote many of the Psalms while on the run for his life from either King Saul or his own son Absalom. Others Psalms were written following David’s affair with Bathsheba, and still others after the death of his first-born son. One could say David had little for which to be grateful, yet he was both grateful and content.

But thankfulness is not simply a Christian notion. Author John Krahlik in his book 365 Thank You’s alleges that thankfulness is the very simple means to a happy and fulfilled life. The author, at age 53, found his life at a terrible, frightening low. His small law firm was failing and he was struggling through a painful second divorce. He was estranged from two children and at risk of losing custody of a third.

Then, during a desperate walk in the hills on New Year’s Day, Krahlik was struck by the belief that his life might become at least tolerable if, instead of focusing on what he didn’t have, he could find some way to be grateful for what he had. He began by writing a thank you note to some memorable person in his life everyday for the next 365 days, and his act of thankfulness brought about a gratefulness into his life that returned to him meaning, hope and contentment.

To me, Krahlik’s experience brought to mind the hundreds of clients in this practice, who may feel they have nothing for which to be grateful. There is a spouse who doesn’t care, a child who has been forgotten, and angry bitter feelings that are neither addressed or mitigated. Most clients in family law cases feel they have very little for which to be grateful. But that is simply not the case.

Certainly, today’s client cannot purport to have more difficulties that those experienced by the Biblical David or John Krahlik. But what both David and Krahlik found was gratefulness and contentedness despite the sea of despair whirling around them. From my sixteen years of experience in Albuquerque family law, I have seen many reactions to difficult divorces, from despair and depression to anger and bitterness. Peace and justice and not always forthcoming. However, once those clients that eventually let go of the anger, the despair and the bitterness and find a spirit of acceptance, if not outright contentedness, in this situation can their lives finally begin to heal.

So what is the answer? One answer is to always find a good lawyer to protect your legal interests. (Remember, this is still principally a legal blog). But the answer may also lie in fostering a spirit of contentedness and gratefulness for that which we have, and not resentment for what we have lost. That is why Thanksgiving matters and why it should not be lost to today’s mentality of consumerism.

Ambulance chasers. Shysters. Hucksters. What’s the difference between a vampire and a lawyer? – The vampire stops sucking your blood out once you’re dead. What do you call ten thousand lawyers at the bottom of the ocean? – A good start. I assure you that your average attorney has heard every single lawyer joke and critical epithet possible by the time he or she has finished law school and has developed a sufficiently thick skin about it (and which we also find useful as extra protection against wooden stakes and silver bullets). Popular movies and television are of course rife with characters representing both the legal profession as well as the worst examples of human and professional decency. One particular attorney character from television that comes to mind is Saul Goodman from AMC’s immensely popular show Breaking Bad.

For those unfamiliar with it, Breaking Bad (which is both filmed and set entirely in Albuquerque) is about a high school chemistry teacher named Walter White who, in stark contrast to his mild and quiet mannerisms, lives a secret life as a high-volume manufacturer and distributor of methamphetamine. Saul Goodman is a crooked-up-to-his-eyeballs attorney who helps Walter with laundering his drug money in addition to other unscrupulous tasks such as hiring hitmen, blackmail, ticket fixing and environmental inspection fraud.

Apart from his activities as a criminal lawyer (i.e. – he is both a criminal and a lawyer), the character of Saul Goodman embodies all of the most cringe-worthy qualification for running a legitimate legal practice. His office is in what appears to be a dilapidated strip mall which one easily imagines is sandwiched between a bail bondsman and a payday loan outfit. He panders to both the most clueless and litigious elements of society with a gimmicky mantra that one had “Better call Saul!” By way of viral advertising for the show Breaking Bad, “Saul Goodman” even has an official website which has to be seen to be believed as it exemplifies everything terrible about certain attorneys (as well as being a great example of how not to design a website).

Saul is purposely a caricature of a bad lawyer. And caricatures, by definition, draw attention to notable traits through exaggeration of said traits. Fortunately for all involved, it is unlikely that one will ever retain the services of an attorney as deeply involved in criminal undertakings as Saul Goodman. But even on the legitimate side of his legal practice, Saul demonstrates certain approaches to his work of which a prospective client should be aware.

First, avoid an attorney who encourages deceit, if not outright dishonesty, on the part of his clients. The attorney-client relationship is one predicated upon establishing trust between one another, and that same consideration needs to be extended to opposing parties in the interest of arriving at a resolution which accounts for both fairness and justice. At Cortez Family Law we always encourage our clients to be forthright and never dishonest with opposing counsel in the course of depositions or discovery. And we would certainly never encourage a client to be anything less than truthful in court. There is nothing to be gained in the long term over the utterance in court of either a “little white lie” or an outright falsehood. In the context of family law, remember that in most instances you will be in court opposite a former spouse who still retains a deep, intimate knowledge of both your shared history of finances as well as parenting style. That person will generally know if you’re being deceitful about something and this will be used against you later.

Also, at the risk of sounding overtly dramatic, the courts are regarded by most in the legal profession as something of a sacred institution in our society, and that regard should be held by the general public as well. The ultimate purpose of the courts is to bring about resolution to disputes which reflect a sense of justice and fairness. This can only be accomplished through wholly truthful dealings from all sides involved in any dispute. To believe one can achieve fairness through the use of dishonest means is to miss the point of fairness entirely. Any attorney who willfully asks clients to omit, or twist, relevant facts in a case is one who demeans the entire system.

You would also be wise to avoid any attorney who promotes litigation over mediation as a preferred course of action.  Bringing any case in to a courtroom places the stakes, whatever they may be, in to a greater dimension of absolutism, meaning you may win it all, or you may win nothing at all. An attorney whose first inclination is to take all matters before a judge is playing fast and loose with your assets, visitation times, etc. As the famous tactician Sun Tzu observed, “He will triumph, who knows when to fight, and when not to fight.” Litigation should never be undertaken without first performing a cost-benefit analysis around the following consideration: Do the potential benefits of a litigation outcome outweigh the cost of litigation itself?

The last type of attorney to steer clear of is one who emphasizes a “win” outcome. Believe it or not, this type of thinking is especially prevalent in family law cases, and its achievement is generally sought through the needless harassing or defaming of opposing parties. A client who believes he or she has been wronged understandably wants an attorney who feels the exact same degree of indignation over said wrongdoing. But, realistically speaking, the absence of direct experience, coupled with a need for professional detachment, prevents an attorney from genuinely rising (or sinking) to that same level of impassioned outrage. Regardless of the spitefulness of an embittered client, it should be noted that, in the long term, attacking or humiliating the other side of a family law dispute has no winners, particularly when children are concerned. Barring extraordinary circumstances of criminal conduct or abuse, the other party is never going to be completely removed from the presence of one’s life or that of one’s children. It should also be said, with respect to long-term thinking, that children have especially long memories. When harsh tactics have been employed, for example, to reduce an opposing party’s holiday visitation time with school-aged children, bear in mind that those children will eventually mature into thoughtful young adults who still love both their parents and will consequently have hard questions for you regarding the scorched-earth methods used back then to get you that extra two days of visitation over Christmas break. Meanwhile, the attorney who suggested this approach has long since closed your case file and moved on to other things, unconcerned with the lingering damage done to your family dynamics.

Saul Goodman and those of his ilk certainly make for entertaining television. But they also reinforce certain preconceptions about attorneys which are profoundly damaging to a realistic understanding of what an actual attorney is capable of doing within the strictures of professional ethics and the law itself. If your attorney manifests any of the traits we’ve discussed, his potential to do harm in his handling of your family law case greatly outweighs his ability to do any good, and you should seek alternate counsel as soon as possible.

So with the recent news of Justin Bieber and his paternity suit, I thought I’d wax reminiscent on some of the history of parentage cases before addressing how it relates to the teen idol. But if you want to get right to the Bieber part, click here.

Over the years, parentage has been determined by a variety of means. Generally, prior to the advent of DNA testing, parenting cases were proven by putting on a circumstantial case and submitting said case to a jury for determination after an examination of the presentation of what were often many lewd and lascivious facts.  Proof of intercourse would always be asserted, as well as proof of moral (or rather, immoral) character.  Some cases came to be particularly renowned by their extremely provocative allegations. A case in point is Stubblefield v. Crawford (69 NM 313), where the assertion of facts included a young girl who was plied with alcohol by the putative father, a young man, and returned home in a state of dishevelment with her shirt partially unbuttoned, followed by claims of rape, claims of consent, and yet further claims of prior immorality. The young man eventually admitted the intercourse but denied the rape. The judge apparently found that all of these assertions were necessary for the jury to determine whether said rapist had in fact fathered the child. However, other judges would hold that statements from both sides indicating that intercourse had occurred were enough to prove parentage. Thank goodness again for 21st century science, which greatly reduces such vile exchanges before a jury.

In the early part of the last century in New Mexico and other states in the southwest, the law of the day was something known as the “general and notorious” rule. This was still law in New Mexico well into the 1970’s, by which time advanced blood testing techniques had taken precedence. The rule stated that in order for a child to receive inheritance from a parent, proof of parentage had to be general and notorious.  General meant that the information was widely known. Notorious meant that it was talked about by the general public. In the case of one unfortunate Sam Haskew, trying to settle an inheritance claim with his father’s estate, the presence of only two witnesses 60 years after the fact of his birth proved insufficient for him to settle the claim in his favor. In re Haskew, 56 NM 506.

Another method of determining parentage by the courts included visual recognition.  Visual recognition was used as recently as 1972 in jury trials to determine parentage.  In the case of Glascock v. Anderson, 83 NM 725, the child was placed literally in front of a jury to be examined for his visual resemblance to the man the mother was alleging to be the child’s father.  Fortunately this method has since been replaced by more accurate and less subjective means. Even more importantly, juries no longer decide family law cases.

You may ask what role a birth certificate plays in verifying one’s parentage? In practice is only another piece to the parentage puzzle. Any mother can literally put anyone’s name on a birth certificate in a parentage case. So the presence of one certain male’s name is proof, yes, but not irrefutable proof of parentage in the overall scheme.

Courts actually began some blood testing as early as the 1920’s. However, early blood testing was only able to exclude 30% of the population. That meant 70% of the population could still have fathered the child in question. By the 1930’s serum testing was being utilized which excluded up to 40% of the male population, and by the 1970’s HLA testing, a testing of proteins in the body, was able to exclude 80% of the male population. All of this eventually became supplanted by the first accurate DNA tests, which were seen in the early 1980’s.

So how does this all relate to Mr. Justin Bieber? In the event you don’t peruse People Magazine’s website on a daily basis (as I do) to keep yourself updated on all the day’s “important” news, you may not know that the now-17-year old singer has been named in a paternity suit. According to the lawsuit, Mr. Bieber fathered a child, currently aged four-months old while on his last tour and allegedly outside the supervision of his security posse. According to his publicists, this is very damaging to a very young and very rich young man who has relied quite heavily on a good-boy persona to bolster his record sales.

The paternity suit was filed by a young woman named Mariah Yeater, currently represented by former White House attorney Jeffrey Levings. “What? Former White Counsel taking a paternity case?” you say? Levings has defended his representation by portraying Yeater as a victim as well as the assertion that everyone is entitled to counsel.  He is requesting DNA testing to prove the Yeater’s claims which will, they presumably hope, reward her with some portion of Bieber’s future earnings.

In his defense against Yeater’s claims, Bieber asserts he has never even met Yeater, was never alone with her and certainly never had sex with her. He is saying in effect, “I never had sex with that woman.” (We’ve never heard THAT one before). As previously stated, his security team claims Bieber is never left alone. On the other hand, Yeater claims she has never had intercourse with anyone save for Bieber. Except, apparently, that she previously named two other men as the child’s father prior to Bieber. Apparently those claims did not pan out. (I must confess to being personally swayed, on occasion, towards “immoral behavior” arguments).

Certain circles among Bieber’s fans are calling outright for the death of Yeater. Less extreme, but still considerably punitive, are those Bieber supporters calling for Yeater’s arrest on charges of statutory rape, as she was more than three years older that Bieber at the time of the alleged event, which constitutes a crime in the particular state where the event allegedly transpired.

Still, Yeater claims she has irrefutable proof that she and Bieber had unprotected intercourse that evening. This could be her effort at a “triple dog dare” in order to compel Bieber to agree to DNA testing.  I suppose in this day and age, it may mean she has pictorial proof. People seem to forget how easy it is, with our smart phones, etc, to keep one another under perpetual threats of recording and surveillance even in what we hope are our more private moments.

Why do I even care about this story? I find it interesting as a study in family law, particularly with respect to parentage cases. Here we are in the 21st century with reliable scientific means to determine parentage, and yet the case is being tried in the media along some pre-1980 methods we discussed earlier. Thankfully, if and when this case goes to court, post-1980 methods will be utilized to prove or disprove Yeater’s claims. But for now, the older methods are what are going to sell more magazines.

The bigger question is why Bieber hasn’t already agreed to put the debate to rest by taking the all-revealing DNA test? Should he have to?  I agree with the argument Bieber’s camp is making via the media that the circumstantial evidence should prevail.  There is no evidence linking these two young people together and other witnesses can verify Bieber was never alone when everything supposedly occurred. In place of DNA testing, genetic experts will possibly be called to testify the child looks nothing like the father. Still other witnesses will demean Yeater’s morality. These are exactly the arguments put forth for the better part of the previous century.

In the end a judge will likely force Bieber to submit his DNA for genetic testing. I don’t think the judge will care a hill of beans for the Bieber camp assertions or those of Yeater. The court has the duty to uphold the child’s best interests. Remember that there is a child caught up in all this, one who deserves to know the identity of, and be supported by, her father.

And one way or another, there is a father.

When parties arrive at such impasses, the only practical option is some form of a custody evaluation. This will take place by way either of a Rule 11-706 expert, a guardian ad litem, or a court clinic referral.

If finances allow for it, your best chance of obtaining the custody arrangement you want for yourself and your children is probably through a Rule 11-706 custody evaluation.  An 11-706 expert, in this context, is always a psychologist whose sole purpose is to deliver a recommendation to the court regarding the custody of the children involved in the case following a process of testing, interviewing and observing the respective parties involved.

The cost for this can be prohibitive for most New Mexicans. The whole evaluation will set you back between $4,000 and $7,000 depending upon how many parties are being evaluated.  Naturally, the evaluation of step-parents, significant others or siblings significantly increases the cost.

The appointed 11-706 expert will assess the parties through a variety of methods, including Rorschach tests, intelligence tests, achievement assessments and other means.  The purpose of this portion of the process is to ascertain the existence of any major psychological issues that may negatively impact the parent-child relationship.  Parties tend to get over-excited with respect to this portion of the process, believing that their ex-partner’s perceived neuroses, psychoses or behavioral defects are certain to be discovered  (“Yes! Now everyone will see what I have been putting up with for all these years!”). In actuality, I have never seen an 11-706 evaluation happen that way. All that I have observed from this process is an identification of the parties’ weaknesses (and everyone has them) which can then be turned against them when the case goes to trial. Suddenly issues such as narcissism, slight depression or obsessive disorders are made as arguments for the loss of custody. In my experience with these arguments, judges tend to not see it that way, which then makes for some very messy, unnecessary trials.

In addition to the psychological testing, the evaluation process includes review of documents and numerous interviews and observations, finally culminating in the recommendation. What you should generally expect from all this is that the party with less timesharing at the initiation of the process will obtain some greater degree of timesharing in the end. While the recommendations may be objected to, the family law judge will nearly always adopt said recommendations in the end.

Overall, an 11-706 evaluation is helpful if you can afford it. It is a classic case of the axiom that you get what you pay for.  If you want more timesharing with your children and your ex-partner is refusing your request for an increase, the 11-706 custody evaluation is the best chance you have. Most evaluators that I have utilized support fairly equal time for both parents.

Another option of obtaining additional time with your children is through the services of a guardian ad litem, or GAL.  A GAL is an attorney representing the interests of your children. With the exception of the psychological testing, the GAL process is very similar to the custody evaluation.

A GAL is going to undertake similar analyses as the psychologist as well as a similar investigation. I have found, however, that a GAL will actually undertake a more thorough investigation.  A typical GAL will make at least two home visits and will often spend time visiting will ancillary family members, teachers, day care providers and other significant persons whom the 11-706 psychologist does not always investigate.

Can the GAL find the same potentially dangerous psychoses (assuming they exist) as the psychologist? My findings are that only Level-I diagnoses, as defined by the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV), are going to limit timesharing in any significant manner, and a GAL is going to either observe such behaviors firsthand or  discover them in the course of the investigation through the analysis of medical records or conversations with various family members.

Would I still favor the 11-706 evaluation over the guardian ad litem recommendation? I have to say yes. Because of the recent criticisms of the GAL process, the GAL is still going to be reluctant to recommend anything more than minor increases in visitation time; perhaps no more than an increase of a day or two to either parent’s time. If you want fairly significant increases to your timesharing, then request (and be prepared to pay for) the 11-706 evaluation.

Furthermore, because of the long history of the use of 11-706 experts, the judges are going to favor – virtually rubber-stamp, even – their recommendations while a GAL’s recommendations will be open to a little more modification from the court. Admittedly, I am biased toward the legal profession.  I will have to ask one of the family law judges next time I am in court and report back in another bLAWg the preference of the family law judges in these cases.

The one area where GAL’s are used to the exclusion of an 11-706 evaluator is in kinship guardianship cases. These cases are usually have very little money involved and the GAL process tends to be somewhat cheaper than the 11-706 process and free services are sometimes available.

Local parties involved in custody matters have one other option, the Bernalillo County Court Clinic. The Court Clinic is available only in the Second Judicial District Court, although various alternatives are available in other counties including SandovalCounty.  The Court Clinic, however, is severely understaffed at this time and obtaining your requested evaluation is at least a year-long process. The Court Clinic provides a sliding scale fee available to each party. Unfortunately, I rarely see parties happy with the court clinic process. Too often recently, I see children who have been coached to fully support one parent to the disadvantage of the other parent, and the Court Clinician has neither the time nor resources to get past it, therefore potentially recommending too little time for the parent in the right.  Not every case in the Clinic is mismanaged as such, but whether the parties participate in mediation or advisory consultations, I tend to see more dissatisfaction in this arena than in any other area of the family law process. As I stated with respect to hiring an 11-706 expert, you get what you pay for.

Before embarking in the Court Clinic process, I would advise you to hire the 11-706 expert or guardian ad litem, or even to take your chances before your assigned judge.

First, vampires cannot come into your home unless someone invites them.  Once the vampire is in your home, you cannot force it to leave.  And once it’s in, it can do things over which you have no control. Because no one would knowingly invite such a destructive force as a vampire into one’s home, the vampire generally has to seduce and trick one of the occupants into inviting it. 

How is family court comparable to a vampire?  By filing your petition for dissolution or custody, you have invited the vampire into your home.  By asking the judge to make a decision, you have invited decisions into your life over which you no longer have control.  By expecting justice, you have been tricked by the “vampire” into thinking you may actually obtain realistic justice.  However, that justice is often very elusive and often rarely granted. Additionally you get much more from the judge, than you ever requested or anticipated.

Many individuals today take the position that because truth is on their side, the skies will part and justice will rain down. The sad truth is that because there are two sides to every story, justice is never complete.  The judges in family law cases have neither the resources, nor frankly the patience to muddle through the messy details of the individual family law case including long-term interpersonal relationships. Instead, the Court generally relies on the impression it gets from very short hearings, coupled with the given judge’s personal proclivities and mood on a given day in making make decisions that will profoundly impact your family’s lives.

While this may initially sound unfair, the judges know that the parties in a case possess the facts, details, and the experience to be in the best position to make sound and logical decisions for their own individual families.  This is why judges prefer situations where parties to the particular family law case settle their issues/disputes between themselves or their attorneys by way of family law mediation, collaborative law, or settlement facilitation.

I have often heard judges say to parents, “Given that you both obviously love and care for your children so much, I have a very hard time understanding why you would put these very important decisions about them into the hands of a total stranger. If you both love them so much, why don’t you prove it? Put your animosity for one another aside and put the children first for their sake.”  These are hard words to hear from the bench, especially when you are expecting “justice.” In this case, the judge made no decision, but sends everyone out in the hallway, telling them to come to an agreement.

On the other hand, the judge, acting in the role of vampire in your house, may make decisions you neither requested nor wanted.  Very rarely does one side completely win and the other side completely lose. More often, everyone feels like the loser and no one is happy. When you trade your own power to compromise for a shot in front of a judge, you are stuck with what the judge does, and it may fall short of your expectations.

Think hard about inviting the vampire into your home. It may seem like a good idea at the time, but you could also end up regretting it.  We have had many cases where we have gotten parties through their entire divorce without stepping a foot inside the courtroom. It is grueling work for the parties, given the emotional investment and toll, but it is ultimately worth the effort in the long run.

Because not all cases can be decided through mediation, next week’s blog will discuss he role of the third party decision maker in family law cases including the Rule 11-706 expert, the guardian ad litem and the court clinic.