NEED MORAL/INFORMATIONAL SUPPORT IN NEW MEXICO

[harlequin]

Hi folks-

I wish I had found this place a lot sooner.  

I guess I'm just having trouble getting my gut to understand my head.  I am in Albuquerque, NM, and facing a relocation hearing for my 8-year old son next week.

From what I get from my lawyer (who gets high marks from important people) there is a "heavy burden of proof" on my ex and her husband of three weeks to show "compelling reason" for them to relocate my son to the Milwaukee area.

From what I can tell, there just is no compelling reason.  The guy is making a lateral move to an almost identical situation.  I checked with one of his colleagues, and there have been no budget cuts, layoffs, etc.- the colleague just said he was "unhappy".  

Ex's lawyer does not seem to understand the concept of "compelling reason". She is addressing everything but the idea, under the apparent influence of the idea of "mother's privelege".

The divorce was final right about 13 months ago.  I did a procedurally correct request for consideration of primary custody (under the disupute resolution process stipulated in the decree, not as high as the courts) and ex has apparently completely ignored that.  I suggested that I be allowed to have my son for the school year, and that she have him for the summer, but, again, it was all just ignored.

There is a stipulation about crossing state lines with only express written permission, there is a stipulation about distance that translates into "no more than a 30-minute drive" for me- ex knew full well that these stipulations were designed to foreclose on the issue of son being relocated when she signed the MSA.  

On July 5, ex and not-yet-hubby notified me verbally (not in accordance with dispute resolution) of intent to relocate.  My lawyer answered immediately with a motion to enforce stipulations.  Seventeen days later my attorney decided it was time to notify ex that she needed to submit her proposal in writing (which is what the dispute resolution process says) so that ex would not be able to say that she "presumed" that I agreed and waltz away with my son.

I finally got served with a copy of their motion to relocate, and the hearing is set for the 17th.  It's a 20-minute "summary" hearing.

I think it's totally inconsistent with the original stipulations, and totally inconsistent with the spirit of New Mexico law.  

I do have a tendency to worry needlessly, but that's hard in this kind of situation, as I'm sure you all understand.

I have been able to find a lot of California case law, like the LaMusga case, but I haven't been able to find anything in New Mexico case law.

I guess I just need reassurance.  If someone can tell me how District 1 in New Mexico Family Court tends to go, I'd sure appreciate it.  Or any case law that might apply in New Mexico- if anybody knows about national trends or anything like that, I'd appreciate that too.

h

[Sherry1]

move-away with your child.  If she wants to pursue the move-away after a denial, she can hire psychologists for a court ordered evaluation of the child.  My friend has a child, at the time he was I believe 3 years old, and she attempted to move him to Florida.  She was denied even after everything she attempted, she was into it about $20,000.  Your ex will be told she can move, but your child can't, she will have to relinquish custody to you.  Something in your post bothers me, you said that your ex is wanting to move because her husband has a new job?  There is absolutely no way a judge in New Mexico will allow this.  If she had to move because she couldn't find a job here or for a great relocation, it might be considered.  But if her reason for moving is for her husband's job, she will be denied.  I have been to court with my son and I find the New Mexico courts to be sensitive to father's issues.  My son's judge is Judge Kass.  Judge Kass has been known to reverse  custody from mother's who violate court orders to fathers.  Do you have a lawyer?  Who is your judge?

[harlequin]

Are you in Albuquerque? You must be if you drew Her Honor Judge Kass.  Unfortunately she's retired now, bless her heart.  My assigned Judge is Deborah Davis Walker- and what I have been looking for is someone who knows about her track record- I hope you know that.  Jack Carmody is my lawyer, and I have been told by people that know that I am in very good hands with him.

The same thing that bothers you in my post is of course what bothers me.  The guy is just making a lateral move.  That's it.  Of course, I know logically that I probably really have nothing to worry about, but the thought of not seeing my son tends to make for worried thinking rather than logical thinking.  Milwaukee is very far away.

Actually getting full legal custody out of this has crossed my mind- I know my son needs an appropriate amount of time with his mother, and I will of course allow that, but a complete custody reversal would be great.

I might have a he-said-she-said attempt at custodial interference today.  I suddenly got called upon to work tonight, and my ex objected to my emergency plan for care for my son, because she says she is "primary custodian". Hah.

I wouldn't mind if you emailed me, but I am really stressed (not bad enough to not work) and I may be a basket case by Tuesday.  

Speaking of work, I gotta go, have good arrangements for my son- but I will look for something from you tomorrow.

Thanks a bunch for writing.  This is exactly what I needed.

h

I just wish my printer was working.  I would clutch your message to my breast all night and memorize it.

[Sherry1]

legal and physical custody.  If this is the case, your ex-wife will be told she can move, but she will have to relinquesh custody of your child to you.  This is what happened to my friend with the three year old, she was told she could move with her husband, however, her son would be stay with dad.  And my friend had a much more compelling reason to move, her husband was military and was "transferred to Florida".  The judge was willing to break up a new marriage with a military transfer than to break up a biological parent's relationship with their child.  My friend's father was retired military and he was able to pull strings so my friend's husband didn't have to transfer.  However, she is facing a  military move with her husband at this point.  Her son is now 7 years old.  She knows that she would lose another court battle to move her son so she is very torn and upset about leaving him with his dad but she knows she will have to, and she isn't going to spend another $20,000 for a judge to tell her once again she can't move her son.

She will not be allowed to move your son unless there are underlying issues you aren't telling me (i.e., documented drug use, jail, abuse, etc.)  Your ex is living in a dream world.  She wants to move because her husband has another job lined up?  Ain't gonna happen.  And the fact that you have a no move-away in your custody paperwork without prior written approval means she is totally screwed.  In New Mexico, this is standard.  Yes, I am in Albuquerque.  I don't know your attorney.  When I was helping my son with a lawyer we just needed one for visitation and child support agreement, I can't remember who we hired.  Your ex would have to prove that moving the child would be in the best interest of the child.  It is never in the best interest of the child to remove them from their biological child.  Her husband's new job is not compelling for a move.  I know you are stressed about the thought of your child moving, but I hope your lawyer has assured you this is not likely to happen.  You are welcome to e-mail me at [email protected]

So court is next week for you?  Try not to stress too much, everything I have seen, Bernalillo County is "father friendly". +

[harlequin]

Thanks.  I can probably just read this stuff until Tuesday.

Unless you want to keep it coming, or I could meet you for coffee and you could pinch me or slap me upside the head a couple of times.  Your zipcode is close to mine.

And no, there are no problems I haven't been telling you.  I am a nurse for the Department of Health.  My son has been quite literally been sleeping next to me every night for the past eight weeks, except for every other weekend with his mother.  So of course she can't go with "unfit".  The pediatrician (widely known as one of the best in the state) and the principal of the school have both said they would go on written record, and possibly some or all of my son's former teachers too.  Ex would get some very bad news at a psychological evaluation of my son, as in he really wants to stay with me. Of course, I did not ask him directly, but all behaviors and verbalizations point that way. Anyway, a psychological evaluation would bring up my son's ADHD, which would point to maintenance of the status quo, school, teachers, environment, everything.  The ADHD is just now coming under good control, so it would be contraindicated to turn his world upside down.

I probably know you.  Everybody in Albuquerque knows everybody else.

You're right, my ex is living in a dream world.  She has been for a long time.  I must admit I hold some bitterness against her and her new hubby for all this (and more), and it would be nice to see some justice.

Whew.

[harlequin]

which may take "months".  He says "time is on my side".

Ex has tried to inveigh upon me a couple of times that I shouldn't be spending my son's "future money" on frivolous appeals.  Actually I agree that it's pointless to spend money on frivolous appeals, and I hope she realizes that and does not spend money on frivolous appeals.

But an advisory consultation is not a frivolous appeal.  It's part of the process to decide what's in the best interest of the child. :-)

[Sherry1]

be a fast process.  Your ex's hubby may have to move without his wife to start the new job or turn down the job.  Your ex telling you that you shouldn't be spending your son's 'future money' on frivulous appeals is once again her trying to bully you into agreeing to the move and avoiding court sessions.  You should tell her to stop ruining your potential son's "future relationship" with you.!

[harlequin]

Of course she's trying to bully me- and hustle the court process.  Ellison's last letter to my atty said that they wanted to get through it without an advisory consultation.  They just want to hurry up and take him. A veritable "rush to injustice", if you will.

I guess I sound kind of matter-of-fact about the bullying because that's the history of our relationship in a nutshell- I'm quite used to it.

I don't know if hubby is air-commuting or what exactly.  He was here over the weekend but since he's an assistant professor- ??

No- denying my son the advisory consultation would actually be denying him the justice of a determination of what's in his best interest.  That's called "due process of law".

I wish I could hope that they would just go, and forego the advisory consultation like they want me to..... but wish in one hand and doo-doo in the other and see which one gets full first...

Make my day all better and tell me that this will take a loooooooong time.

[harlequin]

Which will take about four months.

I will keep a good diary and document everything.

[Sherry1]

that you become the primary custodial parent and she have your child on alternating holidays and during the summer.  The mediator might try to get you to allow her to move your child, just don't give in.

What was your ex's reaction to her not being allowed to up and move?

Ha Ha!