New Mexicolaw That Impacts Children with Special Needs

New MexicoLaw that Impacts Children with Special Needs

Child Support

N.M. Stat. Ann. § 40-4-11.1.I. Child support; guidelines.

I. The child support may also include the payment of the following expenses not covered by the basic child support obligation:

(1)any extraordinary medical, dental and counseling expenses incurred on behalf of the children of the parties. Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($100) per child per year;

(2)any extraordinary educational expenses for children of the parties; and

(3)transportation and communication expenses necessary for long distance visitation or time sharing.

N.M. Stat. Ann. § 40-4-9-A. Standards for the determination of child custody; hearing.

A. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including, but not limited to:

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

Support for Disabled Adult-Child (Post Majority Support)

Psomas v. Psomas,661 P2d 884 (1992).

The New Mexico Supreme Court held that there is an exception to the rule that the parental relationship is severed when the child reaches maturity where there is an infirmity of body or mind rendering the child unable to take care of itself and requiring the child to remain with the parent. The Court recognized that parents have a common law continuing duty to support a severely disabled child if the child is so disabled before reaching the age of majority.

Cohn v. Cohn, 934 P2d 279 (1997).

Court held there was no intent by the legislature to absolve parents of all responsibility to provide financial support for severely mentally or physically disabled children after their eighteenth birthday. This applies to parents whether or not they are divorced. No emancipation occurs where due to illness or injury a child is so physically and/or mentally disabled he cannot provide for himself but must remain at home with a parent. The parent with whom the child lives continues to be entitled to attribution towards the costs of caring for the adult child.

Custody, Visitation, and Relocation

N.M. Stat. Ann. 40-4-9.A.Standards for the determination of child custody.

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

N.M. Stat. Ann. 40-4-9.A-B.1.Joint custody; standards for determination; parenting plan.

A. There shall be a presumption that joint custody is in the best interests of a child in an initial custody determination. An award of joint custody does not imply an equal division of financial responsibility for the child. Joint custody shall not be awarded as a substitute for an existing custody arrangement unless there has been a substantial and material change in circumstances since the entry of the prior custody order or decree, which change affects the welfare of the child such that joint custody is presently in the best interests of the child. With respect to any proceeding in which it is proposed that joint custody be terminated, the court shall not terminate joint custody unless there has been a substantial and material change in circumstances affecting the welfare of the child, since entry of the joint custody order, such that joint custody is no longer in the best interests of the child.

B. In determining whether a joint custody order is in the best interests of the child, in addition to the factors provided in Section 40-4-9 NMSA 1978, the court shall consider the following factors:

(1) whether the child has established a close relationship with each parent;

(2) whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child's care by others as needed;

(3) whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to relinquish care to the other parent at specified times;

(4) whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child's development will profit from such involvement and influence from both parents;

(5) whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other's parental rights and responsibilities and right to privacy;

(6) the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;

(7) geographic distance between the parents' residences;

(8) willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs; and

(9) whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member. If a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation ordered by the court adequately protects the child, the abused parent or other household member.

Adoption Subsidy

N.M. Stat. Ann. § 7-2-18.1. Credit; special needs adopted child tax credit; created; qualifications; duration of credit.

A. A taxpayer who files an individual New Mexico income tax return, who is not a dependent of another individual and who adopts a special needs child on or after January 1, 2007 or has adopted a special needs child prior to January 1, 2007, may claim a credit against the taxpayer’s tax liability imposed pursuant to the Income Tax Act [7-2-1 NMSA 1978]. The credit authorized pursuant to this section may be referred to as the “special needs adopted child tax credit”.

B. A taxpayer may claim and the department may allow a special needs adopted child tax credit in the amount of one thousand dollars ($1,000) to be claimed against the taxpayer’s tax liability for the taxable year imposed pursuant to the Income Tax Act [7-2-1 NMSA 1978].

C. A taxpayer may claim a special needs adopted child tax credit for each year that the child may be claimed as a dependent for federal taxation purposes by the taxpayer.

D. If the amount of the special needs adopted child tax credit due to the taxpayer exceeds the taxpayer’s individual income tax liability, the excess shall be refunded.

E. A husband and wife who file separate returns for a taxable year in which they could have filed a joint return may each claim only one-half of the special needs adopted child tax credit provided in this section that would have been allowed on a joint return.

F. As used in this section, “special needs adopted child” means an individual who may be over eighteen years of age and who is certified by the children, youth and families department or a licensed child placement agency as meeting the definition of a “difficult to place child” pursuant to the Adoption Act [32A-5-1 NMSA 1978]; provided, however, if the classification as a “difficult to place child” is based on a physical or mental impairment or an emotional disturbance the physical or mental impairment or emotional disturbance shall be at least moderately disabling.

State and Community Resources

Abrazos Family Support Services - Southwest Communication Resources

Abrazos provides a variety of specialized health and developmental services that support families to meet the special needs of their infants, children, and adult family members. This includes: developmental assessment and evaluation, developmental intervention and service coordination, case management for Medicaid eligible pregnant women and babies, and respite care. They serve families living in the central New Mexico communities of Bernalillo and Sandoval Counties.

Attention Deficit Disorders Association - Southern Region (ADDA)

Our mission is to provide a resource network, support individuals impacted by ADHD and related conditions and to advocate for the development of community resources.

EPICS: Education for Parents of Indian Children with Special Needs

EPICS provides learning opportunities (FREE Community Trainings) for families and the professionals that work with them on topics such as:

IDEA - Individuals with Disabilities Education Act - Overview
IEP - Individualized Education Program - Process
IFSP - Individualized Family Service Plan - Process for infant and toddlers with disabilities or developmental delay.
Transition from Part C to Part B Preschool Special Education
Transition into Adulthood and Community setting
Record Keeping
Part C - Early Intervention Process
Part B - Special Education Process
Opening Doors to Family Leadership
ADD / ADHD
Bullying
Guiding Young Children's Behavior

New Mexico Autism Society

New Mexico Autism Society is a non-profit organization dedicated to improving lives affected by autism.

New Mexico Directory of Special Needs and Disability Resources

Gathering information and connecting with organizations in your area is an important part in achieving success for yourself or your loved one. Special Needs Stop is proud to offer a listing for Special Needs Resources for both state and national. Also included are Special Needs Resources offering support to family members and caregivers. Special Needs Stop directory is a starting point for individuals to gather information in regards to national and state organizations providing services for individuals with special needs and/or disabilities and their family members. It important to conduct your own research of any individual, organization, product or service included in Special Needs Stop Resource Directory. The listing of an individual or organization on this site is not intended as an endorsement of that individual or organization or any products or services they may offer:

Adelante Development Center, Inc.

"supports people with mental and physical disabilities"

Autism Communications Consultants, LLC

"Therapy Agency Exclusively Serving Children with Autism and Their Families"

Cloud Dancers

"equine-assisted experiences"

Down Syndrome Foundation Southeastern New Mexico

"Supporting Down Syndrome Families"

New Vistas

"supports people with disabilities and families of children with special needs"

Progressive Residential Services of New Mexico, Inc.

"serving people with disabilities in Chaves & Dona Ana Counties"

The Arc New Mexico

"For People with Intellectual and Developmental Disabilities"

Apache Creek Deaf and Youth Ranch

"Summer youth camp"

Center for Development and Disability

"A University center for excellence in developmental disabilities education,research"

Dogwood Therapy Services, Inc.

"occupational therapy that offers opportunities to improve independent living"

Education for Parents of Indian Children with Special Needs

"EPICS - parent resource center for New Mexico, Arizona, Utah and Colorado"

Parents Reaching Out

"provides the networking opportunities for families to connect"

Rio Grande Down Syndrome Network

"promote friendships and information sharing among families"

New Mexico Family Network

New Mexico Family Network provides information and assistance to families of children and adolescents with neurobiological, emotional and behavioral differences (“Clients”) through a variety of programs and advocacy efforts throughout New Mexico. In addition to directly serving Clients, the Agency seeks to make individuals and families who are not yet Clients (“client population”) aware of the Agency and services it provides. It is the Statewide Family Network (SFN) in New Mexico.

New Mexico Kids

The NewMexicoKids.org website was created in 1996 as a portal for New Mexico families and early care and education personnel to find information for early childhood professional development, training and technical assistance, child care referrals and child development information. The primary goals of the website are:

To assist the Children, Youth and Families Department, Office of Child Development (OCD) in its statutorily authorized mission of implementing a statewide system of professional development for those working with children from birth through eight years of age and their families and those working with children and families in before and after school care programs.
To support the four early childhood Training and Technical Assistance Programs serving the state of New Mexico. The four Training and Technical Assistance Programs are: Eastern New Mexico University, University of New Mexico – Continuing Education, University of New Mexico – Taos Branch, and Western New Mexico University.
To support New Mexico Quality Rating Improvement Look for the STARS/AIM HIGH System for licensed early childhood programs.
To support families in their search for child development information and referrals to state registered or licensed child care providers.
To provide links to early childhood partner organizations and agencies that offer information and resources related to early learning.

The NewMexicoKids IT team at the University of New Mexico Division of Continuing Education has primary responsibility for the design and updating of the website, in close consultation with the Office of Child Development, Early Childhood Division of the Children, Youth and Families Department.

New Mexico Special Education Department

Here is a list of community resources specific to various types of special education for your special needs child.

ped.state.nm.us/SEB/community/index.html

Parents Reaching Out

Parents Reaching Out is a statewide nonprofit organization that works with parents, caregivers, educators and other professionals to promote healthy, positive, and caring experiences for New Mexico families and children. It is the Family Voices State Affiliate Organization, the federally-funded Family-to-Family Health Information Center, and Parent-to-Parent (P2P) program in New Mexico.

Wrightslaw Yellow Pages for Kids: New Mexico

Find educational consultants, psychologists, diagnosticians, health care specialists, academic tutors, speech language therapists, advocates and attorneys. You will also find government programs, grassroots organizations, special education schools, and parent support groups.

Memo

New Mexico statutes do not provide much in the way of guidance regarding the unique situation of a Special Needs child in relation to custody, periods of responsibility or support. Generally, in determining custody/periods of responsibility, a Court is directed by two statutes as to which factors should be considered:

NMSA 40-4-9 Standards for the determination of child custody, and NMSA 40-4-9.1 Joint custody; standards for determination; parenting plan.

Clearly there is no mention of any distinction in either of these statutes for children with special needs. It is, therefore, assumed that the factors provided in these statutes would also apply in the case of a special needs child. However, if the child with special needs has reached the age of majority, it is difficult to know whether or not a Court would consider the child’s medical or physical disability to continue past the age of majority in relation to an Order regarding custody or timesharing. Anecdotal experience has demonstrated that this is a very subjective standard and handled differently by Courts in different jurisdictions throughout the State. For example, one Court may view that it no longer has jurisdiction over a special needs child that has reached the age of majority and would thus not address legal custody or primary physical custody. Another jurisdiction handling a divorce with a majority age child with special needs, may literally put in a timesharing order with no recognition that the child due to his/her age may have an opinion as to how they want to spend their time. We have no statutory law that provides direction in this regard.

As to financial support, New Mexico has no statute that requires a court to direct child support to continue past the chronological age of majority for a child with special needs. We do have two cases that provide some assistance: Psomas v. Psomas 99 NM 606, 661 P2d 884 (1992), and

Cohn v. Cohn 123 NMCA 85, 934 P2d 279 (1997).