In New Mexico, judges decide family law cases based on the information available at the time of the hearing. Of course, situations change after that point and sometimes they change enough to warrant a modification. Certain family law orders are subject to modification at a later date if there is evidence of changes in circumstances. But what constitutes a change in circumstances and how does it apply to your case?
Matteucci Family Law is here to explain your legal options. You may have experienced a change in circumstances since your last order was filed with the court or the last court date. If so, you may be eligible to modify the court order.
What Is The Meaning Of “Changes In Circumstances”?
Changes in circumstances are necessary before a court will consider a modification to a family law order. More specifically, in New Mexico law, the change or changes must be substantial and material changes. Obviously, life changes to some degree the moment the court order is issued. However, courts don’t want to address possible modifications to court orders when the changes are perceived to be minor. What judges are really concerned with are significant changes in circumstances.
In other words, think of substantial and material changes in circumstances as the gateway to achieving a possible modification of your prior family law order. However, it should be understood that not all decisions can be modified. The family law orders that most commonly become subject to a modification are:
Below, we will take a look at how substantial and material changes in circumstances affect each of these types of cases.
Changes In Circumstances with Child Custody And Visitation
Generally, family law courts in New Mexico retain jurisdiction over child custody, sometimes called time-sharing, until the child becomes an adult. Courts are therefore allowed to make changes in custody if the child’s best interests are at stake. This makes it possible for either parent to come back to court to request an alteration of the custody arrangement. The parent with whom the child primarily resides can seek to alter the other parent’s visitation and vice versa.
But there must be evidence of a substantial and material change in circumstances affecting the child’s best interests. This could include any of the following, and more:
- The child advances to a new school (elementary school to middle school, Middle school to high school)
- The child is now years older and is in a different stage of development (as an example, the child is now a teenager)
- 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
- Either parent plans to relocate
- The time-sharing schedule doesn’t work due to a new job commitment
- One of the parents has a substantially different living situation
These are just a few of the innumerable examples of changes in circumstances that arise after prior court orders have been entered. They all share one thing in common–the changes affect the child’s best interests.
Substantial changes in circumstances affecting child support are usually financial in nature. Either the paying parent’s finances have changed, the receiving parent’s finances have changed, or the child’s needs have changed. These changes may be for the better or worse. For example:
- The paying parent has lost their job, making it more difficult to pay child support
- The paying parent now earns more money, making it possible for them to pay more
- The receiving parent has lost their job, making it more difficult to care for the child
- The receiving parent now earns more money, so the other parent doesn’t need to pay as much
- The child’s daycare, medical, educational, or other expenses have increased or decreased
- One of the parents returns to work
In New Mexico, when a small child becomes old enough to attend school and one of the parents is a stay-at-home parent, child support is recalculated. Whether the stay-at-home parent actually goes back to work or not, child support will be calculated assuming that both parents work full-time.
Sometimes, when the amount of time a child spends with each parent changes, child support will also change. For example, if one parent had custody of the child one night per week, but that changes to three nights per week, child support will most probably change.
When courts consider a party’s request to modify child support, they have to determine whether the changes in circumstances are legitimate. For example, a parent cannot intentionally quit their job, get fired, or work fewer hours for less pay, in order to claim they don’t earn enough money.
Courts consider a substantial change to be a change that causes at least a 20% increase or decrease in the amount of child support paid.
Alimony, or spousal support, can be modified for reasons that are similar to child support. However, not all kinds of alimony may be modified, even if one of the spouses has experienced a change in circumstances. For example, alimony that is ordered to be paid in a lump sum or that is labeled in a divorce document as “non-modifiable” cannot be modified.
For all other types of alimony, a substantial change in circumstances can justify a request to modify. Some possible examples are:
- Involuntary job loss
- Involuntary reduction of hours or pay
- Disability or other condition making it more difficult or impossible to work
- Increased expenses, such as healthcare bills
- Death of either party
- The paying party having more children
A kinship guardian can be a family member or close family friend who raises a child when a parent is unable or unwilling to do so. A parent’s inability to raise the child may trigger a kinship guardian case. However, as a general matter, courts prefer that one or both of the biological parents raise the child.
That means a court could potentially terminate the kinship guardianship if there is a substantial change in circumstances that led to the guardianship in the first place, such as:
- The parent is successfully treated for drug or alcohol abuse
- A previous instance of a parent’s mental illness improves
- The parent is let out of jail
- Other evidence that the parents are able and willing 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.
Contact Our New Mexico Changes In Circumstances Attorney
Proving to the court that a significant enough change in circumstances has occurred in your case is no simple task. Meeting this high bar requires presenting compelling evidence and argumentation to the judge. You can count on Matteucci Family Law to advocate for your rights and interests. Reach out to us today to discuss the changes that have taken place in your family law matter.
Matteucci Family Law Firm helps families with their family law matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.