Right to Gay Wedding Photography Protected by HRA

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I am keenly interested in legal cases of first impression involving family and home issues.  In a case involving the intersection of competing personal rights, the New Mexico Court of Appeals recently concluded that a professional wedding photographer's refusal--on personal and religious grounds--to photograph a same-sex commitment  ceremony constitutes a violation of NMSA 1978, Section 28-1-7(F) (2004) of the New Mexico Human Rights Act" (NMHRA or HRA).  See Elane Photography, LLC v. Willock, 2012-NMCA-086, cert. granted. Aug. 16, 2012, No. 33,687.

Willock first filed a discrimination claim against Elane Photography with the Human Rights

Kinship Guardianship Revisited

In my capacity as a domestic relations mediator and GAL, I have previously written about a rather convoluted Kinship Guardianship case, Freedom C. v. Julie Ann D., 2011-NMCA-040, in which the New Mexico Court of Appeals concluded that both parents must meet the grounds of § 40-10B-8(B) relied upon.  In that case, only Mom had consented to the Kinship Guardianship, and the child had resided only without Dad for the 90-day period.  See § 40-10B-8(B)(1) and (3).  However, the Supreme Court has recently reversed the Court of Appeals, concluding that "the Legislature intended that both parents need to satisfy at least one of the three conditions, regardless of whether they satisfy the same condition."  See In re Patrick D., NM Sup. Ct. No. 32,944 (May 30, 2012).

Internet Child Porn, Second-hand Viewers, and Victim Restitution

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In the September 2012 ABA Journal, Lorelei Laird details the plight of several young women in their 20s who were sexually abused as small children by predators who then put pornographic images of the abuse on the Internet for others to access and enjoy.  Laird poses the question of "should those who download child pornography pay the victims and, if so, how much?"

Recent Foreclosure Consent Decree

As a foreclosure mediator in New Mexico, I like to report on news/cases in this special area and the big news right now is the Consent Decree/Judgment entered on April 4, 2012  against 5 financial defendants: 

- Bank of America

- Citigroup

- JP Morgan Chase

- Ally Financial/GMAC, and

- Wells Fargo

The Consent Decree derived from investigations concerning the "robo-signing" of foreclosure

What to Bring to Divorce Mediation

As a domestic relations mediator, I'm often asked "what should I bring to mediation?"  The short answer is, "whatever documents you think you need related to custody, child support and/or property division."  This is not intended to be flip.  However, you know the facts of your own case better than I do--and the level of accord and amicability between yourself and your spouse or partner.  Specifically, what do you think he or she will need to see to accept your claims about salary, your debt, etc.? 

Chatterjee: Domestic Partner Custody Rights Revisited

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In an important victory for same-sex parents, the Supreme Court recently reversed the Court of Appeals and held that a domestic partner and non-biological parent had plead sufficient facts to confer standing as a natural parent--and therefore to seek custody--where she alleged she held child out as her own by providing full-time emotional and financial support. Chatterjee v. King, 2012-NMSC-019.

DWI with Child is Endangerment--"Plus Factor" Not Required

Besides being a mediator and arbitrator, an important part of my practice is also serving as GAL for children and other vulnerable folks.  In this capacity, I've previously written that under NM law DWI and vehicular endangerment of the general public does not constitute child abuse.  Recently the New Mexico Court of Appeals has confirmed that a defendant is "properly convicted of child abuse" by endangerment when he drove a moving vehicle while intoxicated with a child present, even without additional indicia of unsafe driving.  

Domestic Advisory Consultation--What is it?

Besides being a domestic relations mediator, I also am a court appointed "Advisory Consultant" for the Thirteenth Judicial District in New Mexico.  In this capacity I meet with parents, meet the children, view their interactions, and make a written recommendation to the Court concerning custody matters.  This is potentially a stressful event to the

Search and Seizure Rights of Children, Revisited

In State v. Carlos A., 2012-NMCA-069 (cert. den.), the Court of Appeals reiterated the rule that children have no greater rights than adults in certain criminal procedure matters.  

Previously, I'd written about a similar case in which the Court concluded that, like adults, children must be advised during an investigatory detention of their right to remain silent and that anything they say can be used against them but, like adults, the results of field sobriety  and blood test are not statements subject to suppression, even under the state's Delinquency Act.  See State v. Randy, 2011-NMCA-105, and NMSA § 32-2-14.

In Carlos A., the minor argued "that his status as a minor rendered involuntary is consent to search the car he was driving because the police officer ... failed to inform Carlos that he had the right to deny consent."  He also argued, as did the minor in Randy, that the evidence found should be suppressed under § 32-2-14(D), as well as the Fourth Amendment.

Although it's often remarked by their attorneys that children do not have the same quality or quantity of constitutional protections as adults, here Carlos argued that the New Mexico Legislature and courts haves recognized "children are particularly vulnerable, even during simple investigative detentions" and therefore "should be advised of all of their options prior to a police officer taking any further action."  Carlos ¶ 17 (emphasis in original).  In support, Carlos points to § 32-2-14(C) (providing that no child shall be interrogated without first being advised of constitutional rights and the securing of "knowing, intelligent voluntary waiver"), and language in Javier M., 2001-NMSC-030, that " [g]iven a child's possible immaturity and susceptibility to intimidation, a child who is subject to an investigatory detention may feel pressures similar to those experience by adults during custodial interrogation."  Id., ¶ 37.  

However, the Court rejected this argument.  It pointed to State v. Flores, 2008-NMCA-074 ¶ 16, in which the court held that "presence or absence of knowledge [of the right to refuse consent] is but on factor to consider in the matrix to determine whether a consent to search is voluntary," and other cases and statutory language emphasizing that children are "entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code."  Carlos, ¶ 18.

The Court then examined the facts of Carlos' stop to affirm the lower court's ruling that the consent to search the vehicle was voluntary, notwithstanding minor's lack of knowledge about his right to withhold consent.  Specifically, both noted that the stop was in public, not hostile, and the officer did not exert any unusual pressure on Carlos.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Ok if Court Can't Determine WHICH Parent Abused Child

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children.  In an important child welfare case, the New Mexico Court of Appeals has recently reaffirmed that adjudication of child abuse is not dependent on a finding of which parent abused the child, despite some changes to statutory language.  Since abuser parents often act in complicity if not concert, this ruling significantly advances child welfare in New Mexico.

Decline in NM Foreclosures Only a Temporary Reprieve?

Over the past year or so, foreclosure filings have declined in New Mexico, as elsewhere around the nation, particularly in those states that utilize judicial foreclosure.  Doing foreclosure mediation, among other things, I was well aware of this trend.  It is generally chalked up, by practitioners, to the banks' regrouping efforts necessitated by widespread problems with foreclosure documentation and affidavits, and to a lesser extent

Control of Vehicle While Intoxicated Enough for DWI But Not for Child Endangerment

As a family mediator and guardian ad litem, I keep abreast of child abuse, neglect and endangerment cases.  The New Mexico Court of Appeals has recently reviewed whether control of a vehicle while intoxicated can form the grounds for a felony child abuse conviction.  See State v. Etsitty, 2012-NMCA-012.  After analysis the Court concluded it could not.

Constitutional Rights of Children & Suppression of Evidence

It's often remarked by lawyers dealing with children, that they just don't have the same quality or quantity of constitutional protections as adults.  In a recent decision, the New Mexico Court of Appeals have made clear that, in at least one area, they have exactly the same amount of rights.

The Connected Baby--A Great New Documentary

Besides being a labor/employment, mediator and mom, I am also a guardian ad litem, working with at risk children.  In that latter role, I  recently had the pleasure of viewing "The Connected Baby," a documentary or "film conversation" produced by researcher Dr. Suzanne Zeedyk and film-maker Jonathan Robertson.

In her opening presentation of her documentary, Dr. Zeedyk discussed how there has been a dramatic increase in the neuroscience associated with attachment.  Simply put, a baby's brain is healthier and more robust, with far greater neural pathways, if he or she forms early and strong attachments with primary care givers. In the first year of develop-

Shaken Baby Syndrome--Real or Imagined?

Some readers may know me as a labor/employment and domestic relations mediator/arbitrator.  However, I am also a GAL for abused, neglected kiddos.  As such, I take special interest in unusual court cases involving children. I was especially upset and intrigued by a recent ABA Journal article on the heated debate concerning the scientific soundness of  shaken baby syndrome theories.