In New Mexico, judges decide family law cases based on the information available at the time the case is heard. The agreements struck and decisions made by the court are frozen in time, but you and your family members will move on with your lives. As time passes, court orders that served you and your children well may no longer make sense. When these changes in circumstances happen, it may be necessary to ask the court to revisit your case and update the terms of your child custody and visitation agreement, end or modify a kinship guardianship, or increase or decrease child support or alimony payments.
Under New Mexico law, family law agreements, orders, and judicial decisions may be modified by the court if you, your former partner, or your child is dealing with a material and substantial change in circumstances. What this means varies from case to case, but Attorney Bob Matteucci is ready to help you and your family navigate the legal system and find a path forward.
Persuading The Court To Act
Although New Mexico law allows you to ask for updates to the final order in your family law case, courts are often reluctant to add these cases to their docket. Judges fear that even simple modification requests will get messy if one of the parties is unreasonable.
If possible, an agreement between all the people impacted by a change should be pre-negotiated so all the judge has to do is rubber-stamp the requested changes. Attorney Matteucci has helped bring many families to the negotiating table so a new agreement that works for everyone can be hashed out.
Most people recognize that they, their former partner, and their children will have different needs over time. Those people are willing to update their family court orders accordingly, but some people are more stubborn. Attorney Matteucci can and does litigate requests for modifications when it is clear his client’s needs will not be met unless aggressive action is taken.
The second reason courts are hesitant to take up requests for modifications is that they dislike the idea of “fixing” something they believe they got right the first time — even if circumstances have changed. This means any request for changes must be well-documented and supported by evidence.
Whether everyone can agree on modifications, or a request must be litigated, the court is going to want to see strong evidence that a material and substantial change has occurred. And proof that it is necessary to update the court’s original order to protect or improve your or your child’s quality of life. What that looks like varies based on the type of case and your circumstances. Below are a few examples of situations where Attorney Bob Matteucci has successfully persuaded a court that a modification is appropriate.
Making Changes To Child Custody And Visitation Orders
In New Mexico, either parent can petition the court to modify a custody agreement or change the current visitation plan. The key in these cases is proving a substantial and material change has occurred, and it would be in the best interest of the child to adjust the current custody and visitation agreement in light of the change.
It is important to note that a change in circumstance can be positive or negative or simply because your child is growing older. Do not feel like requesting a change means you are failing or being a bad parent. What you are doing is advocating for what is best for your child.
Some examples of substantial and material changes in circumstances that Attorney Matteucci has seen courts be persuaded by are:
- The child is now years older and would prefer to spend more or less time with one of the parents
- The child is attending a new school or has advanced from elementary to middle school or from middle school to high school
- Either parent plans to relocate
- The time-sharing schedule doesn’t work due to a new job commitment
- Either parent develops a drug or alcohol addiction
- A parent becomes incarcerated
- Child abuse or neglect, including abandonment
- A parent becomes disabled and cannot care for the child
This is not a full list of all possible scenarios, so you should discuss your family’s particular needs with Attorney Matteucci.
Ending A Kinship Guardianship
Kinship guardianship allows people who have a strong relationship with a child to step up when that child is in need. It is a way to protect children whose parents are unable or unwilling to care for them themselves. The guardian steps into the role of the parent, taking physical and legal custody of the child. The guardian becomes completely responsible for the care and welfare of the child and may make important decisions on the child’s behalf.
Kinship guardianships may or may not be permanent. Some guardians serve until the child in their care reaches adulthood. Other guardians relinquish their role when a child’s birth parent is willing and able to resume their role as the primary caretaker.
Parents can petition the court to end kinship guardianship if there has been a material and substantial change in circumstances. Some examples of this include:
- A parent’s mental illness or physical impairment improves
- The parent is successfully treated for drug or alcohol abuse
- The parent is let out of jail
- Other evidence that the parents are willing and able to resume their parental roles
As with custody, the court must be convinced that any decision to terminate or alter the kinship guardian arrangement is in the child’s best interests. Attorney Matteucci has worked with parents and guardians in these cases.
Adjusting Child Support Payments
Either parents or people serving as kinship guardians can request modifications to child support payments from noncustodial parents. These payments are typically calculated using formulas and worksheets provided by the state, which take into consideration a child’s age, living arrangement, and each parent’s income to come up with a suggested child support payment.
After a few years, many New Mexico families revisit these calculations. It is simply unrealistic to assume the financial needs of a child will not change as he or she grows, or expect parents to pay the same amount when their life circumstances have changed.
Attorney Matteucci has helped families persuade the court that child support payments should be adjusted in the following situations:
- A parent has suffered a job loss, is working reduced hours, or gone on disability, causing their income to drop.
- Increased income
- The child’s expenses suddenly change due to sickness, injury, disability, educational needs, or other factors.
- Changes in the child’s living situation or routine. For example, if a child who used to spend two days a week at a parent’s home is now living with them the majority of the time, an adjustment should be made.
These are not the only reasons a modification can be requested, but they are some of the most common. Your family’s unique lifestyle, financial situation, and living circumstances will dictate your child support payments. Attorney Matteucci is here to advise you of your options and advocate for what is best for your family.
Ideally, you and your former partner will agree that a change to your current child support agreement is desirable, and will work with you to craft an updated agreement the courts can easily okay. When parents can come to an agreement on a modification, and there is evidence supporting it, courts will rarely refuse to approve it.
If you and your former partner cannot agree, a request for an adjustment can be litigated. Although Attorney Matteucci prefers to work with families to negotiate a new agreement, he does take cases to court when the needs of his client’s children are not being met.
Updating Your Alimony Payments
If the spousal support you receive is modifiable under the state of New Mexico statutes, as you and your former partner’s life circumstances change, it may be necessary to change your spousal support agreement. In New Mexico, if your spousal support is statutorily modifiable, either the party who receives alimony or the one who pays it may petition the court for a modification. Whether a request for changes is approved depends on a variety of factors.
If your spousal support order or agreement allows for future changes, the party requesting the change has to prove a material and substantial change in circumstances means a change is necessary.
Here are a few examples of situations where a court may be successfully persuaded to modify spousal support:
- Remarriage or cohabitation
- Involuntary job loss
- Involuntary reduction of hours or pay
- Increased expenses, such as healthcare bills
But they are not the only reasons a modification can be requested. You and your former partner’s unique lifestyles, financial circumstances, and living situations should dictate your ongoing spousal support arrangement. If you think a change to your spousal support order is needed, Attorney Matteucci is ready to listen to your concerns and advise you of all your options.
Contact Attorney Bob Matteucci To Discuss Your Change In Circumstances
It is said that the only constant in life changes, and that is certainly true when it comes to your family life. As you, your former partner, and your children move forward with your lives, you will have different wants and needs than you had at the time your family law case was originally decided.
Attorney Bob Matteucci can help you prove to the court that a material and substantial change in circumstances means it is time to revisit your case and update the terms of your child custody and visitation agreement, end or modify a kinship guardianship, or increase or decrease child support or alimony payments. Give Bob a call today to get started.
Matteucci Family Law Firm helps families with their family law matters across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.