GRADS FALL TRAINING Liz McGrath, Executive Director Pegasus Legal Services for Children
Dec 17, 2015
Topics
• Emancipation
• Undocumented Students
• Young Fathers: Paternity, Child Support and Timesharing
Emancipation
A minor is emancipated if her or she:• Is married (must have parent’s consent)• Has joined the armed forces (must have parent’s consent to joint if under 18) or
• Has obtained an Order from the district court declaring the minor to be emancipated
NMSA §32A-21-3.
Emancipation by Declaration
• A Court may declare a minor emancipated if he or she is:
• 16 or older
• Willingly living apart from his or her parent or guardian
• Managing his or her own financial affairs.
• The Court must also find that emancipation is in the minor’s best interest.
Emancipation by Declaration
• Court may emancipate minor for specific purposes:
A. consenting to medical, dental or psychiatric care without parental
consent, knowledge or liability;
B. his capacity to enter into a binding contract;
C. his capacity to sue and be sued in his own name;
D. his right to support by his parents;
Emancipation by Declaration
• Court may emancipate minor for specific purposes (cont’d):
E. the rights of his parents to his earnings and to control him;
F. establishing his own residence;
G. buying or selling real property;
Emancipation by Declaration
• Court may emancipate minor for specific purposes (cont’d):
H. ending all vicarious liability of the minor's parents, guardian or custodian for the minor's torts; provided that nothing in this section shall affect any liability of a parent, guardian, custodian, spouse or employer of a minor imposed by the Motor Vehicle Code [66-1-1 NMSA 1978] or any vicarious liability that arises from an agency relationship; or
I. enrolling in any school or college.
Emancipation
• Effect of Emancipation at school:
• Can enroll self in school
• Can authorize own health care
• Can authorize participation in activities, sports, etc.
• Parent has no right to receive student information or be involved in decisionmaking
Emancipation
• Also…
• Emancipated minors can continue to receive the same public benefits as unemancipated minors
Undocumented Students
• The same right to attend public school as citizens.
• Schools cannot require immigration documents or social security numbers for enrollment.
• Schools cannot ask any immigration questions or “chill” enrollment.
What if a Parent/Youth Shares Immigration Information Voluntarily?
• Do not call immigration authorities.
• Do not tell others at school or in the community.
• Do support them as you would support other families and youth.
• Do offer information about immigration advocacy and service providers.
• Do not interfere with an active immigration investigation.
What About Access to Other Services?
• Vocational services may require social security numbers or employment authorization.
• Public benefits may require immigration documentation.
• States may require immigration documentation to obtain ID’s and driver's licenses.
What About Higher Education?
• Undocumented immigrants can apply to public colleges and universities, except for those in AL, GA and SC.
• TX, CA, NY, UT, IL, WA, NE, NM, OK, KS, MD, CT and RI (if attended 3 years of HS in the state) provide in-state tuition for resident undocumented immigrants.
Higher Education – Financial Aid
• Federal and most states (except NM and TX) financial aid require immigration documentation.
• Students who are US citizens or lawful permanent residents are eligible for aid, even if one or both parents are undocumented.• However, if the student or parents supply a fake or stolen social security number on the FAFSA, it will be rejected. Students should enter 000-00-0000 as their parent's social security number.
Longer Term Solutions
• Potential Paths to Legal Status
• It’s important for youth to start the process early.
• It’s important for youth and families to seek legal assistance!
Paths to Legal Status
• Basic Family Immigration• Violence Against Women Act (VAWA)• Special Immigrant Juvenile Status (SIJS)• U Visa – Crime Victims• T Visa – Sex and Human Trafficking• Asylum – Has suffered persecution in own country• Deferred Action for Childhood Arrivals (DACA)
• IT IS IMPORTANT THAT THEY CONSULT A LAWYER!!
New Mexico Immigrant Law Center
Phone Consultation Hours*:
Mondays 1:00-3:00 pm
(505) 247-1023
http://www.dmrs-ep.org
*Consultations are CONFIDENTIAL
Paternity – Three Paths
• Acknowledgement of Paternity
• Petition to Establish Parentage - Self
• Petition to Determine Parent and Child Relationship - CSED
Acknowledgement of Paternity
• Form signed by both parties at birth or at any time thereafter*
• Notarized• Sent to Vital Records• Birth Certificate issues with both parents named
• Establishes father as legal parent
*It is not necessary to give a social security #
Petition to Establish Parentage
• Parentage, Custody, Timesharing and Child Support determined in same proceeding
• Filed by the parent in District Court• Filing fee ($100-140) can be waived• OP must be formally served• OP has thirty days to respond in writing• Court sets hearing
Petition to Establish Parentage
• Court Hearing:• Both parents agree
• Court issues order establishing paternity
• Order sent to Vital Records
• Vital Records issues new B.C.
Petition to Establish Parentage
• Court Hearing:• One parent denies
• Court orders DNA test• Cost of test may be split, or party in denial may have to pay
• If DNA test is positive Court issues order• Order sent to Vital Records• Vital Records issues new B.C.
Petition to Establish Parentage
• Custody & Timesharing• Parents may be sent to mediation
• Court will issue a “Parenting Plan”
• A detailed plan outlining custody and timesharing
• Parents can vary from plan if in agreement
• If no agreement Parenting Plan must be followed
• Important to have a comprehensive Parenting Plan, not piece-meal court orders
Petition to Determine Parent and Child Relationship – CSED
• Filed by Child Support Enforcement Division of NM
• Automatically filed if custodial parent receiving TANF benefits• Parent is required to cooperate with process
• Parent can request Child Support Services• CSED charges fees
Petition to Determine Parent and Child Relationship – CSED
• Establishes paternity (same process as under Petition to Establish Parentage)
• Establishes child support
• Does not establish custody or timesharing unless motion filed by parent
Child Support
• Will not be required until parent is 18
• Guidelines set by State law• Based on income and time spent with each parent
• Arrears can be assessed to date of birth
• If parent is unemployed court may “impute” income (minimum wage for young parents)
Child Support
• If parent does not pay court can require automatic withdrawal from parent’s paycheck
• Failure to pay can result in loss of driver’s license
• Failure to pay child support does not impact timesharing
Timesharing
• No standard approach to timesharing
• Generally:
• Courts prefer young children to have one primary home
• Infants/Toddlers should have frequent visits with other parent
• Overnights can start early
Young Fathers
• Fathers do have rights• Courts strongly prefer joint legal custody• Law does not prefer mothers (although courts sometimes do)
• Failure to pay child support does not affect right to timesharing
• Ignoring or evading child support can have serious consequences
Liz McGrath, Executive DirectorPegasus Legal Services for Children
505-244-1101 ext. [email protected]