Mediation for Developing Child Custody and Timesharing Agreements

If you have a parentage (paternity) case, or you are divorcing and you have children under the age of 18, you will have to file a Custody Plan or other document that describes how you and the children’s other parent will take care of them.

If you can’t come up with a Custody Plan on your own, mediation may be the best way to help the two of you work through your differences.

A mediator is a neutral third person who has training in mediation and communication techniques. The mediator’s job is to help you try to work out a solution that you both can live with. The mediator does not tell the parents what to do with their children, but helps them talk to each other, focus on the children, and explore possibilities. The mediation sessions are confidential and neither the parents nor the mediator may divulge information to the court that was acquired during the session.

There are several places where can you find a mediator:

• Family Court Services offers mediation with court employees who are licensed professional mental health counselors with extensive mediation training and experience. Mediation through Family Court Services is on a sliding fee scale.
• Private mediators also offer mediation. They have varying types of training and experience. They are usually not lawyers. Their fees vary from person to person, and may depend on the type of case.
• Some attorneys offer mediation. They also have varying types of training and experience. When an attorney acts as a mediator, they cannot represent or give either person legal advice, but they can give legal information. Their fees vary from person to person, and may depend on the type of case.

What happens if you can’t agree on a custody plan after mediating?

• Priority Consultation (usually ½ day) by Family Court Services.
• Advisory Consultation (usually all day, more detailed, may also include interviews with other persons, for instance, teachers, doctors, babysitters, etc.) by Family Court Services.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

1. When you do not have an attorney, you become your own attorney. You must follow the same rules that a lawyer must follow. If you fail to follow the rules, you may permanently lose important rights.Court employees may not give you legal advice about how to proceed in your lawsuit. Please do not ask court employees for legal advice.
2. Every case is handled according to the laws and the Rules.There are two kinds of laws: Statutes are the laws passed by the legislature that apply to specific situations. Case law is when the Court of Appeals or the Supreme Court interpret how a statute applies to a particular situation.

   Rules are made by the New Mexico Supreme Court for how courts operate. Rules have the force of law. Be sure you know what laws apply in your case.

   The Rules of Civil Procedure govern how a case proceeds: how it’s filed, how the parties are notified that someone has filed something, how long the other side has to respond, how long you have to respond, how you get information from the other party, etc. The documents that are filed in a lawsuit are called “pleadings”. The Rules tell you what information must be included in your pleadings.

   In addition, every judicial district has Local Rules that describe some procedures that are particular to that court.

   You must follow the Rules of Civil Procedure and the Local Rules whenever you appear in court for any reason and whenever you file anything.

   The Rules of Evidence govern what a judge or hearing officer can hear, and how it’s presented in court. The judge can only hear information that is allowed by the Rules of Evidence.

   You may find the Rules and statutes at the Supreme Court Law Library. Be sure to study the statutes and Rules before you do anything.

3. Do not try to talk to the judge or hearing officer in private! All your interactions with the judge or hearing officer will be in the formal setting of a courtroom, in “hearings”, which are governed by the Rules of Civil Procedure and Rules of Evidence.If you want to talk to the judge, or you want the judge to make a decision on an issue, you must ask for a hearing. To ask for a hearing, you must file a Motion that tells the judge what you want to talk about or what decision you want him or her to make. You file the Motion in the Court Clerk’s Office, along with a Request for Hearing. These forms are available on the court’s website under “Forms”, and also at the Self Help Center.

   Be sure to send a copy of the Motion and Request for Hearing to the other party as soon as you file them.

   Any time the judge hears anything about the case from one party, the other party must have notice that the judge will hear evidence, and they have the opportunity to be there to hear what is said, and there is a court reporter present to record what is said.

4. Provide a current and reliable mailing address and telephone number to the court, hearing office and the other party. Once you appear in a case you will be notified of hearings or motions by mail only. If you move and you miss a hearing because your mail fails to reach you, you may permanently lose important rights.If you move after the first time you file a pleading, you should file a change of address in the court file. The court will only mail notices to the address you provide in the court file.

   If you have a protective order in place that keeps your contact information confidential, you must file a Motion for Order to Seal so that alternative arrangements can be made for notice. Ask at the Self Help Center for a Motion for Order to Seal form.

5. Appear at all scheduled hearings. Arrive at least fifteen (15) minutes before the scheduled time. Be sure to leave enough time to park and get through security – there may be a long line.Make sure the administrative assistant, bailiff, or court monitor for the Judge or Hearing Officer knows that you are present.

   If you have requested the Court to do something and you do not appear, your request will be dismissed. If the other party is asking for something and you do not appear, they may get whatever they are asking for because you are not present to object.

   If you do not appear at a scheduled hearing, you may permanently lose your opportunity to be heard on the issue.

6. Be Prepared! Bring all your documents with you whenever you have a hearing. You must provide the other side with copies of everything you want to show the judge – before you get into court. If you have documents you want to show the judge, bring copies for the other side.
7. If you, or any witnesses you may need to testify, need an interpreter to help understand the hearing, you should inform the administrative assistant for the judge or hearing officer assigned to your case at least twenty-four hours before the hearing. An interpreter will be provided at no cost for anyone who needs help understanding English.If you have any other special needs that require assistance during your hearing, please inform the judge’s administrative assistant as soon as possible after receiving notice of hearing. Every effort will be made to ensure that your access to all services of the court will not be limited.
8. All the pleadings, motions, notices, and orders that are filed in your case are kept in an official court file in the Court Clerk’s Office.Files are open to the public unless they have been sealed through a special process. In general, anyone can look at any documents in any file just by asking for the file. For this reason, you should be VERY careful about the information you include in any pleading you file. Do not put your Social Security number or complete account numbers in pleadings – someone could use that information to steal your identity.

   You need to know what’s in your court file at all times. You can see what is in your case file by coming to the courthouse and asking at the Clerk’s Office to review the court file. You can get copies of documents in the file for a charge of 35 cents a page. You MAY NOT remove anything from the court file. The only way to add anything to the court file is to file it with the Court Clerk’s Office.

   The Court Clerks can give you information from the Court file including your case number, who the assigned judge is, and what pleadings have been filed by telephone. The Clerk’s telephone number is 505-455-8268.

   You can also see a list of the documents in your court file by using the “Case Lookup” feature on this website. Case Lookup doesn’t show you the actual document, it is just a list of the documents in the file.

9. Some documents must be notarized. Notaries are available in the Self Help Center and in the Court Clerk’s Office.You must have a photo ID and you must sign in front of the notary. If you have a document that must be notarized, DO NOT sign it until you are physically in front of the notary. Please do not ask notaries to sign for someone who is not present. The notary’s signature means that they saw the person sign the document, and the person signing provided proof of their identity.

   Remember that having your signature notarized means you swear that you are the person whose signature appears on the document, and that to the best of your knowledge the contents of the paper you’ve signed are true, under penalty of perjury.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

Everything that happens in a lawsuit is governed by either a statute or a Rule. 

Statutes are the laws passed by the legislature.  They apply to specific situations, including divorces and parentage cases.  Case law is the law that is made when an appeals court interprets and applies a statute to a particular situation. 

The state Supreme Court establishes the rules for the state judicial system. 

The Rules of Civil Procedure govern how a case proceeds: how it’s filed, how the parties are notified that someone has filed something, how to get relevant information from the other side, etc. 

The Rules of Evidence govern what a judge or hearing officer can hear in court, and how it’s presented in court. 

If you are representing yourself, you will be expected to be familiar with, and follow, the Rules of Civil Procedure and Rules of Evidence.  In effect, you are both your own lawyer and your own client.  You will be expected to know both the law and procedures as they apply to your case.  There are no special rules for self-represented people!  The same rules that apply to lawyers apply to you.

You can find the Rules and statutes at the Supreme Court Law Library, corner of Don Gaspar and Alameda.  They’re open Monday – Friday from 8 a.m.-5 p.m. Or find them online.  The law librarians can help you find Rules, statutes, forms, and other information, but they can’t give you legal advice.

The Rules of Civil Procedure and the Local Rules tell you exactly what the process is for filing a lawsuit.  Be sure to study the Rules before you file a case, or before you respond. 

A lawsuit is opened by filing a “Petition for …” or “Complaint for…”.  Read the next item for more information about how to open a case. 

“Filing” means a document is given to the Court Clerk to put in the court’s record.  Documents that are filed are called “pleadings”.  You can tell that a pleading has been filed if it has a stamp in the upper right corner of the first page of the pleading.  The stamp says the name of the court, and the date and time it was filed. 

In general, “Petitions” open family law cases – cases categorized as “DM” when they are filed. For instance, a divorce case is started by filing a “Petition for Dissolution of Marriage”. 

The person who files a Petition is called the “Petitioner” and the other party is called the “Respondent”.

“Complaints” open civil cases – cases categorized as “CV” when they are filed. For instance, a debt collection case is started by filing a “Complaint for Breach of Contract and Money Due”. 

The person who files a Complaint is called the “Plaintiff”, and the other party is called the “Defendant”.

The Petitioner or Plaintiff must have the Respondent or Defendant personally “served” with the Petition or Complaint and a Summons.  The most effective way to accomplish “Personal service” is to put a copy of the filed Petition or Complaint directly in their hands.   The person who hands the copy of the Petition or Complaint cannot be the Petitioner or Plaintiff, and must be over 18 years old.  You can also serve a Petition or Complaint by certified mail, return receipt requested.  If you use this method, be aware that service is NOT completed until the Respondent or Defendant picks up their mail and signs for it.  The case CANNOT proceed until service is complete.  That’s why handing the Petition or Complaint to them is the best way to serve them.  Personal service cannot be completed in any way other than hand-delivery or certified mail.

After the Respondent or Defendant is served, a form called a “Return” has to be filed.  The Return says the date when the Respondent or Defendant was served.  The Court has no way of knowing that the Respondent or Defendant has been served until the Return is filed. 

Click here for more information about service.  The legal requirements for service are set out in NM Supreme Court Rule 1-004.

After a Petition or Complaint is served, the Respondent or Defendant will have 30 days to file an Answer.  Nothing will happen in your case until this time has passed!  Judges will almost never act without giving both sides an opportunity to present their side. But you must  respond within the allowed time, or the other side can request a default judgment.

If the Respondent or Defendant does not file an Answer or some other pleading that tells the court that they want to have a chance to tell their side, the Petitioner/Plaintiff can file for a “default judgment”.  That means that they tell the court that Respondent/Defendant was served so they know about the case, but no response to the Petition/Complaint has been filed, so the Petitioner/Defendant should get what they asked for in their Petition/Complaint.  There are Rules that say how to go about asking for a default judgment.

After the case has been opened, whenever either party wants to ask the Court to do something, the request MUST be in the form of a written Motion that tells the Court what they want and why. You must file your Motion at the Court Clerk’s Office.  The person who files a Motion is called the “Movant”.

Do not try to talk to the judge or hearing officer in private!  He or she cannot talk to one party without the other party having notice and the chance to be present, and a court reporter to make a record.  All your interactions with the judge or hearing officer will be in the formal setting of a courtroom, in “hearings”, which are governed by the Rules of Civil Procedure and Rules of Evidence.

You MUST provide a copy of anything you file to the other party or their lawyer. You can hand deliver it, mail it, fax it, or email it. You must note on your pleading when and how you delivered it to the other party.  This is called a “Certificate of Service”.

If one side files a Motion asking the Court to do something, the other side always has a chance to respond.  They do this by filing a “Response to Motion to….“   There are time limits for responding to Motions.  Check the Rules of Civil Procedure to find out how to file a motion and how long you have to respond to a Motion filed by the other side. 

After a Response is filed, the person who filed the Motion or Request (the “Movant”) may file a Reply.  The Rules of Civil Procedure also say how long the Movant has to file a Reply.

If you ask the Court to do something by filing a Motion and the other side objects by filing a written Response to the Motion, the Court may decide the issue based on the written pleadings (the Motion and the Response, and the Reply, if one is filed), or the Court may set a hearing so that both of you may present your side. 

If you want to make sure you have a chance to talk to the judge to present your side and not just rely on the written Motion, you must file a Request for Hearing along with the Motion.  If the judge decides to have a hearing, you will receive a Notice of Hearing that sets the date and time that you MUST appear.

If you receive a Notice of Hearing for a Motion that you filed, and you do not appear, the Court may cancel the hearing and dismiss your Motion.

If you receive a Notice of Hearing for a Motion that the other side filed, and you do not appear, the Court may give the other side what they’re asking for – which you probably don’t agree with, or they wouldn’t have filed a Motion to get a court order for it! 

If you have received a notice of hearing you must be prepared to present all your evidence about that issue on the day of the hearing. Bring copies of your written evidence (exhibits) and provide them to the other party before the hearing.  Study the Rules of Evidence to learn how to present your evidence in the hearing.

If you need a witness to help you prove your side, you may request the Clerk’s Office to issue a subpoena for that witness. The Sheriff’s office may serve subpoenas for you. You should consult with any witnesses you wish to testify for you before you arrange for a subpoena. 

The Rules of Civil Procedure govern subpoenas and witness fees.  Expert witnesses such as doctors, psychologists or accountants may require advance payment of fees.  

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

Opening

1. A case is opened by filing a Petition or Complaint. The Petition or Complaint tells the Court what the case is about.It must be signed by the Petitioner or Plaintiff, and that signature must be notarized.
   1. There is a filing fee. The filing fee must be paid in cash, or a cashier’s check or money order made out to the First Judicial District Court. Personal checks, debit cards, and credit cards are not accepted for filing fees. Click here for a list of the filing fees for different kinds of cases.
      If you cannot afford to pay a filing fee you may request free process or a reduced fee by filing an Application for Free Process. Remember that the information you provide on the Application for Free Process is under oath, subject to perjury. Also, if your Application for Free Process is granted, and evidence that is introduced later at a hearing differs from the information on your Application for Free Process, you may be ordered to pay the fee. Applications for Free Process are available at the Self Help Center, on the Court’s website, and at the Court Clerk’s Office.
   2. When you file your case, you must have the original Petition and enough copies for each person who is a party. A “party” is a person whose name is on the caption (the top part) of the pleading. If you do not have enough copies, the Court Clerk will make them for you at a cost of $.35 per page. Read the Filing Pleadings item for more information about pleadings.
   3. The original pleading will be kept by the Clerk for the Court file. The copies will be stamped with the date the pleading was filed. These are called “endorsed” copies.
   4. Many forms are available at the Self Help Center. Many of these forms are also available to download from this web site. Click here to link to the Forms page. Please remember that the Self Help Center does not carry a form for every purpose. The Self Help Center does not have an all-purpose Complaint form for civil (CV) cases.
      The New Mexico Supreme Court has adopted forms to be used in divorce and parentage cases.
      The Self Help Center has packets of the forms necessary for divorces and parentage (paternity) cases. These packets range from $5 to $20 if you purchase them at the Self Help Center, or you can download them for free by going to Forms. The Forms section also provides instructions for downloading divorce forms from the nmcourts.gov site.
      You may need to do further research – the Supreme Court Law Library is a good place – to figure out what information to put in your pleading.
2. You also need to fill out and file a “Summons”. This is the document that tells the other side that they have been sued in court and they must respond to the Petition or Complaint. You can download a Summons form here, or get one from the Self Help Center.
3. After you file your Petition or Complaint, you must personally “Serve” the opposing party with a copy of the Petition or Complaint and the Summons to let them know that a lawsuit has been filed against them. Study Rule of Civil Procedure 1-004 to find out how to properly serve the other party.

Your suit will not proceed – nothing will happen in it – until the Respondent/Defendant has been served. If service is not proper, your case will be dismissed and closed.

Re-Opening

1. If you are re-opening a case that has been closed for more than 45 days, you must file a Summons and Petition or Motion to Re-open, and you must have these pleadings personally served on the other party. There is no filing fee to reopen a case that has been closed for less than 45 days.
2. If the case has been closed more than 90 days, you file a Summons and Petition or Motion to Re-open. You will also have to pay a filing fee.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

What is a “Pleading”?

The court record in any case consists of documents that are filed in the Court Clerk’s Office. Filed documents are usually called  “pleadings”. Pleadings tell the court what the dispute is about, and what the parties want the court to do about it.

What does a pleading look like?

Pleadings all have the same format. At the top of the first page is the “caption”. The caption has a lot of information. It identifies the state, the county the case was filed in, the court, and the parties. It includes the case number. The caption is always the same for every pleading that is filed in the case, no matter who files it.

In a civil (CV) case, the parties are called the “Plaintiff” and the “Defendant”.

In a domestic (DM) case, the parties are called the “Petitioner” and the “Respondent”.

The person who files the first pleading in the case is called the “Plaintiff” or “Petitioner”. The other party is called the “Defendant” or “Respondent”. These designations never change throughout the case, no matter who files what pleading after that. Neither party has an advantage by being the Petitioner or Plaintiff.

The case number has a lot of information, too. In the example below, the case number tells you the case is a district court case (D), filed in Santa Fe County (0101), in a domestic matter (DM), in the year 2010, and was the 98765 case filed that year.

This is what a caption for a Notice of Hearing in a divorce case filed in Santa Fe County looks like:

STATE OF NEW MEXICO
COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT COURT

CASE NO.  D-0101-DM-2010-98765

JANE X.
Petitioner,

vs.

JOE X.,
Respondent.

NOTICE OF HEARING

How do you file a pleading?

You take your pleading to the Court Clerk’s Office. Bring enough copies for yourself and all the other parties. Ask to have the pleading filed, and the copies endorsed (stamped). The clerk will file the original and put it in the court file. They will stamp the copies and return them to you.

There is no fee to file pleadings, except the Petition or Complaint that opens a case.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

The Rules of Civil Procedure and the Local Rules tell you exactly what the process is for conducting a lawsuit. Be sure to study the Rules before you file a case, or before you respond.

All of these procedures are governed by the Rules of Civil Procedure.

A lawsuit begins when a “Complaint for …” or a “Petition for …” is filed. Review the How a Lawsuit Proceeds item for more information about how a lawsuit proceeds.

The person who files the lawsuit is called the “Plaintiff” if they filed a Complaint or the “Petitioner” if they filed a Petition.

The person it is filed against is called the “Defendant” if a Complaint was filed, and a “Respondent” if a Petition is filed.

After the Complaint or Petition is filed, the Plaintiff/Petitioner has to “serve” the Complaint or Petition on the Defendant/Respondent. “Service” is the procedure used to make sure that the person being sued knows about the suit.

When service is complete, that is, when the Defendant/Respondent has a copy of the Complaint/Petition, then the Defendant/Respondent has 30 days to file an “Answer”.

Answers are very basic.

Lawsuits are built around proving statements to be true or false, and then applying the law to them. If both parties agree that a statement is true, then it does not need to be proved further. If the parties do not agree that a statement is true, the lawsuit will continue on the disputed allegations.

The Complaint/Petition is arranged by numbered paragraphs. The statements in the numbered paragraphs are called “allegations”, because they haven’t yet been agreed or proved to be true. Each separate allegation should have its own numbered paragraph.

A proper Answer responds to each numbered paragraph in the Complaint/Petition using the same number. It’s very important to answer every numbered paragraph in the Complaint/Petition.

The response for each numbered paragraph is that the Defendant/Respondent either admits, denies, or doesn’t know the truth about the allegations.

If the Defendant/Respondent admits the allegations in a paragraph, they agree that the allegations are true, and so the allegations in that paragraph don’t need further proof. This is not the same as admitting guilt in a criminal case! In an Answer, “admit” just means “agree”.

If the Defendant/Respondent denies the allegations in a paragraph, they disagree that the statement is true, and the allegation must be either proved or disproved.

If the Defendant/Respondent doesn’t know if an allegation is true, they say that, and the allegation must be either proved or disproved.

So, for instance, paragraph 3 of Form 4A-103,  Petition for Dissolution of Marriage, says:

“3. The parties were married on ___ (date) in ___ (city), ____ (state), and have remained spouses since that date.” That statement is an “allegation” – a statement to the court that so far is not proved to be true.

To answer paragraph 3, if the Respondent agrees that the information in the blanks is correct, s/he will write in the Answer: “Respondent admits the allegations contained in paragraph 3.”

If the Respondent does not agree that the information is correct, s/he will write:

“Respondent denies the allegations contained in paragraph 3.”

If the Respondent doesn’t know if the information is correct, s/he will write:

“Respondent does not have sufficient information to admit or deny the allegations of paragraph 3, and therefore denies them.”

After you’ve answered all the numbered paragraphs, you respond to whatever it is that the Complaint/Petition says at the very end that it wants the court to do. For instance, in a divorce petition, if the Petitioner has asked the court to grant him/her sole custody of the children, or spousal support (alimony), and the Respondent wants joint custody and doesn’t think s/he should have to pay spousal support, this is the place to say that. You can do this in a new section called “Counterclaims”.

If you want to give your side of whatever allegations the Plaintiff/Petitioner made, you can add a section called “Affirmative Defenses”. For instance, in a breach of contract case, if the Plaintiff has alleged that the Defendant didn’t do what the contract required, an “Affirmative Defense” might be that the Plaintiff did something that prevented the Defendant from performing under the contract.

For divorce cases, you should use Form 4A-104, Response

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

1. When you come to court, dress with dignity. Some judges have dress codes, and you may be asked to leave the courtroom if your dress does not comply. Do not wear shorts, flip-flops, sunglasses, halter tops, tank tops, pants that won’t stay up without a belt or that show your underwear, T-shirts with rude messages, or other distracting clothing. Make sure any metal on your clothing (e.g., belts, shirts/jackets with metal buttons) can be removed, or you won’t make it through security. Be clean.
2. Don’t be on time – be early, at least 15 minutes. You need to allow time to go through security, find your courtroom and check in. There is only one entrance to the courthouse, and only one person at a time can come in. Remember to allow time to find parking and get to the courthouse. Bring enough change for the parking meter or plan to park in a parking garage – you can’t get change in the courthouse, and once your hearing starts you can’t leave until it’s over.
3. Don’t chew gum or eat or drink in the courtroom.
4. Turn your cell phone off, not just on “vibrate”.
5. At your hearing or trial, you address the judge as “Your Honor”.
6. DO NOTBRING CHILDREN TO COURT. Unless a child has been subpoenaed to testify, find a babysitter. Children are not allowed in the courtrooms or hearing rooms. No day care is provided by courthouse staff. Children may not be left unattended.

If an emergency arises which requires you to vacate (cancel) or continue (postpone) a hearing, follow these steps:

1. You must contact the other party, unless you have an Order Prohibiting Domestic Violence, and tell them that you need to cancel or postpone the hearing and why. Find out if they will agree to cancel or postpone the hearing.
2. If the other party agrees, call the administrative assistant for the judge or hearing officer and tell them you are going to file a motion for vacation or a continuance, with the consent of the other party.
   1. Then fill out a Motion for Vacation or Continuance, being sure to state that the other party does not object to a continuance, and file it.You can download the form or pick one up at the Self Help Center.
3. If the other party does not agree, call the administrative assistant  for the judge or hearing officer and tell them you are going to file a motion for vacation or a continuance and why, and the other party does not agree.
   1. Then fill out a Motion for Vacation or Continuance, stating that the other party does object to a continuance, and file it.
   2. Make sure you ask the Clerk to give a courtesy copy to the judge. Give the other party a copy too, by hand-delivering, mailing, or faxing it to them.
4. The judge or hearing officer may grant the continuance, or he or she may set a hearing in person or by telephone to hear the other party’s objections before ruling on your request to continue the hearing.
5. A hearing is never canceled or postponed until the judge or hearing officer cancels or postpones it. Just because you or the other side has filed a motion to vacate or continue the hearing doesn’t mean it has been granted. Make sure you have heard from the judge’s administrative assistant that you do not need to appear before you fail to appear.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

What do you do when a court has ordered someone to do something in a family law case, and they don’t do it?

You file a Form 4A-209, Verified Motion for Order to Show Cause (Domestic Relations).

Attach a copy of the order you think is being violated to your Motion for Order to Show Cause.

Be aware that what you are requesting with this Motion is for the other party to tell the judge (“show cause”) why he or she shouldn’t be put in jail for failing to follow the order.

Because the other party’s freedom is at stake, he or she will be entitled to a court-appointed attorney.

If you are the person who filed a Motion for an Order to Show Cause, you are NOT entitled to an attorney to represent you, because you are not accused of doing something (or failing to do something) for which you can be jailed. Instead, you are the one who is accusing the other person of violating the law or a court order.

A Motion for Order to Show Cause must be personally served on the other person. A Return must be filed to prove that the person got notice of your Motion. If you do not make sure the other person is properly served, the judge cannot hear your Motion.

If you want to present your motion in person to the judge, you will need to also file a Request for Hearing on your motion.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

Resolution Day

Twice monthly, the Family Law judges hold a Resolution Day to resolve order to show cause cases. A group of volunteer attorneys act as settlement facilitators and meet with the parties for a half hour.

Parties scheduled for Resolution Day, sign a consent form which agrees to utilize the volunteer attorney to reach resolution without a hearing. If an agreement is reached, the volunteer attorney will draft a court order, which each party approves by signing it. The order, containing the agreement is read to the judge, then becomes binding once the order is signed by the judge. If partial agreement is reached, a court order will be drafted, signed by the parties and presented to the judge. The judge will hear and decide on the unresolved issues. If parties do not reach an agreement, the judge will hear and decide the issues.

Resolution Day for Civil cases is scheduled into the court docket as needed.

Court-Appointed Attorneys

The court may appoint an attorney to represent anyone who is at risk of being jailed for violation of a law or court order, if they can’t afford to pay an attorney. This is the ONLY time the court will appoint a lawyer to represent someone.

If you are accused of violating a civil law or a court order, you will have been served with an Order to Show Cause. DO NOT IGNORE THIS ORDER! This Order tells you to come to court and tell the judge (“show cause”) why you should NOT be put in jail for violating the law or an order. If you do not appear at your Show Cause hearing, the judge may issue a Bench Warrant for your arrest.

If an Order to Show Cause has been issued against you, you may obtain a packet for Application for Appointment of Attorney from the Self Help Center. The packet includes a Motion for Appointment of Attorney, an Affidavit of Indigency, and an Order for Appointment of Attorney. Fill in the Motion and Affidavit and take them to the Judge assigned to the case. The Judge will review your documents and either grant your motion or deny it. Then take the Motion for Appointment, Affidavit of Indigency, and Order for Appointment of Attorney to the Clerk’s office for filing.

If your Motion is approved, an attorney will be appointed to represent you.

If you are the person who filed a Motion for an Order to Show Cause, you are NOT entitled to an attorney to represent you, because you are not accused of doing something (or failing to do something) for which you can be jailed. Instead, you are the one who is accusing the other person of violating the law or a court order.

The information on this website is not intended as legal advice, and does not substitute for seeking independent legal advice regarding the handling of a lawsuit or related legal matters.

What is “ADR”?

“ADR” is an abbreviation for Alternative Dispute Resolution. Courts resolve disputes  in which lawsuits have been filed. This process is called “litigation”. Litigation can be very expensive and take a long time to complete. To better serve the public, many courts have introduced alternatives to litigation. Some alternatives to litigation are settlement conferences and mediation; some courts also offer other forms and processes, such as arbitration, for resolving disputes and managing conflict between people.

What is a settlement conference?

A settlement conference occurs when a case is already in litigation, that is, when a lawsuit has already been filed. All the parties and their attorneys, if any, sit down with a neutral third party, the settlement facilitator, to try to work out a settlement on their own. Faster settlement of the case without the time and expense of going to trial is the primary goal.

What is a settlement facilitator?

The settlement facilitator is a neutral third party whose only job is to help the parties resolve their differences. The settlement facilitator is expected to be able to help each party evaluate their own and the other party’s cases. This is why the Court’s ADR Program requires that all the settlement facilitators on its list be licensed attorneys with at least 5 years of subject matter experience who also have training and experience in mediation techniques. The settlement facilitator is not on anyone’s “side”. Settlement facilitators do not represent or give legal advice to either party. Settlement facilitators do not make decisions for you. The settlement facilitator can be very active in suggesting ways to resolve the lawsuit and in persuading each party to compromise for settlement.

Does the settlement facilitator have to be an attorney?

If the parties choose the settlement facilitator, he or she can be anyone the parties believe can help them come to an agreement. It doesn’t have to be a lawyer, and it doesn’t have to be someone on the Court’s list.

Only attorneys who have mediation training and have met the Court’s standards are on the Court’s list.

What’s the difference between “Mediation” and “Settlement Conferences”?

Settlement conferences and mediation are both processes which use an impartial third party – the “neutral” – to facilitate discussion between the parties, but the timing of the process and role of the neutral in each process is somewhat different.

Settlement conferences occur when a lawsuit has already been filed. They are an attempt for the parties to settle the case instead of having the judge decide it. Settlement facilitators, because of their legal training, can help each party evaluate the strengths and weaknesses of their own and the other side’s legal case. They may take a more active role than mediators in encouraging both sides to come up with possible solutions.

In contrast, mediation may occur before a lawsuit is filed; it is often used in an attempt to avoid litigation. It may also be used in cases that have already been filed. New Mexico courts offer mediation in cases where the parties cannot agree on child custody. Mediations are conducted by trained, experienced mediators who may also, but are not required to, be attorneys. The mediator’s role is to help the parties talk to each other to help them resolve their dispute. A non-lawyer mediator is not qualified to, and should never offer evaluation of the relative strengths and weaknesses of each party’s legal case.

“Settlement facilitators” conduct settlement conferences.

“Mediators” conduct mediations.

Neutrals, whether they are settlement facilitators or mediators, never represent any party in any case in which they are the facilitator, do not decide how the case will be resolved, and they should never give legal advice to either party.

What kind of ADR services does the Court offer?

Family Court Services offers mediation and evaluation (consultation) services for child custody issues only.

Court Constituent Services offers settlement facilitation in civil (CV), domestic (DM), probate (PB), and foreclosure (FRC) cases.

How does my case get referred to a settlement conference?

Any party (you or the other side) can file a Request for Referral to Settlement Conference. Judges may also refer cases to settlement conferences, with or without the request of the parties. Follow the directions in “How to Request A Settlement Conference”.

Where do I get the forms?

You can get all the forms from the Court’s website: “Forms” or from the Self Help Center on the ground floor of the Courthouse. Use the Court’s forms! The Self Help Center’s phone number is 505-455-8146; the email address is sfedselfserv@nmcourts.gov.

How do I file a request for referral?

Follow the directions in: “How To Request A Settlement Conference”. Use the Court’s forms!

How is the settlement facilitator chosen?

The parties may choose the settlement facilitator, if you can agree on one person. If you agree on a settlement facilitator, you should file a Stipulated Request for Referral to Settlement Conference using the Court’s form.

If the parties can’t agree on a settlement facilitator, Court Constituent Services will assign someone from the court’s list of lawyers who are qualified settlement facilitators. The settlement facilitator’s areas of expertise is matched with the type of case to make sure the settlement facilitator has the experience and background to understand the legal issues in the case and help the parties come to an agreement.

What if the settlement facilitator has a conflict, or one of the parties doesn’t want him/her to serve for any reason?

Any party or the settlement facilitator may file a Request for Replacement of Settlement Facilitator. Use the Court’s form! No explanation for the request needs to be given. The Court will appoint a different settlement facilitator. If both parties agree on a replacement settlement facilitator, they should file a Stipulated Request for Replacement of Settlement Facilitator.

How much will it cost?

If the Court assigns the settlement facilitator, the fee schedule set by the Court is $500 plus Gross Receipts Tax for four hours in cases with pro se litigants, and $1,000 plus Gross Receipts Tax for four hours in cases with counsel.

When do I have to pay?

You have to pay the settlement facilitator for the first 4 hours before the settlement conference starts, unless you have made other arrangements with the settlement facilitator beforehand. If you have made other arrangements, be sure you have those arrangements in writing before you start.

What if I can’t afford to pay my share?

You can file a Motion for Free or Reduced-Fee Settlement Facilitation. The Court will decide whether free or reduced-fee settlement facilitation is appropriate, and will issue an order stating how much you have to pay.

Who will be at the settlement conference?

The settlement facilitator, and all parties, their attorneys if they have any, and any other persons who have authority to settle the case such as insurance company representatives, finance or mortgage company representatives, or guardians ad litem.

Where will the settlement conference be held?

It could be at the settlement facilitator’s office, or at the office of one of the attorneys, or at the courthouse, or any other place that all parties and the settlement facilitator agree on.

How are the date and time for the settlement conference decided?

In CV and PB cases, all the people who are required to participate decide among themselves. If they can’t come to an agreement, the settlement facilitator decides.

In DM cases, the court sets the date and time of the settlement conference.

What happens during a settlement conference?

The settlement conference is an informal proceeding. That means that the rules are much more relaxed – basically, anyone can say anything as long as they’re polite and non-threatening. You’re there to try to figure out a way to resolve your case that everyone can live with. The settlement facilitator is a neutral third party whose job is to help everyone have their say, and search for mutually agreeable solutions. The settlement facilitator is not a judge, and will not make decisions for you.

Each settlement facilitator has his or her own style. Sometimes all the parties will be in the same room during most of the conference; sometimes they will start out together and then separate into different rooms with the settlement facilitator going back and forth between them; and occasionally they may never see each other and communicate only through the settlement facilitator. If you have strong feelings about either being together or being separate, be sure to let the settlement facilitator know.

Will I be expected to actively participate in the discussion during the settlement conference?

Yes. This is your case, and you will be affected more than anyone else by how it is resolved. If you and your attorney decide that you’d rather not talk much, you can, but no one, including your attorney, can finally decide for you if you are satisfied with any particular resolution.

Do I have to have an attorney to request or attend a settlement conference?

No.

What if I don’t want to go to a settlement conference?

If the court orders it, it’s just like any other kind of court order: you have to do it, or tell the court why you couldn’t or wouldn’t and ask the court’s permission not to comply with the order. You must comply with the Referral Order – or any other Order – until the judge tells you that you don’t have to. If you refuse to follow the court’s order, and the judge thinks you didn’t have a good reason for it, you may be liable for “sanctions” for contempt of court. That means the court can fine you or even put you in jail.

If you do not want to participate in a settlement conference, you can file a Motion for Excusal from Settlement Conference in which you will tell the judge why you don’t want to participate. The other parties will have an opportunity to respond to your Motion. The judge may decide whether to excuse you from participation based on what you and the other parties said in your Motion and their response, or the judge may hold a hearing to get more information. Just because you file a Motion for Excusal from Settlement Conference doesn’t mean the judge will grant it!

Do I have to settle my case at the settlement conference?

No. Not every case can be settled. Even though you may be ordered to attend a settlement conference, you cannot be ordered to settle. If an agreement cannot be reached, your case will proceed to trial and the judge will decide it. You always have the right to have the judge make the decisions about how to resolve your case. You will not be penalized for not settling.

What if I have a complaint about the settlement facilitator’s conduct?

You should first address your concerns with the settlement facilitator in the hope that any misunderstandings can be resolved amicably. If you are not satisfied, you can file a complaint with the Court Constituent Services Division.

1. Let the Court know you want a settlement conference. If you were referred to a settlement conference by a judge’s scheduling order, you must still follow this procedure. This procedure is also used to request a referral to foreclosure mediation.
   1. Obtain the proper forms:get them from the Self Help Center or from the ADR Office: call 505-455-8146 or email: sfedselfhelp@nmcourts.gov. You can also download the forms from the Court’s website. Use only these forms; do not make up your own forms.If you want the Court to assign a Settlement Facilitator from the Court’s list: Obtain a Request for Referral to Settlement Conference form. Complete the form. Settlement Facilitators on the Court’s list are attorneys with at least 5 years of experience in the subject matter area who have mediation training and experience.If you and the other party have agreed on a Settlement Facilitator (who may be, but is not required to be, a person on the Court’s list) and just need a Referral Order, obtain a “Stipulated Request for Referral to Settlement Conference”. Complete the form.Then make enough copies of the Request for Referral to Settlement Conference for yourself, the judge, the ADR Office, and all the parties. Make 2 sets of self-addressed, stamped envelopes to provide copies of the Request and the Referral Order to all parties or their attorneys.
   2. Then file the Request in the Court Clerk’s office.
      • Effective July 1, 2015 all attorneys are required to efile all pleadings.If you are a Court appointed attorney for Settlement Facilitation, you do not have to pay a fee for efiling Certificates of Compliance, Notices of Non-Compliance, or Requests for Replacement Settlement Facilitator. Individual attorneys must set up their own accounts to waive filing fees for these cases. Under the firm admin tab in the Odyssey File and Serve page, set up an account with a name, such as OBO State of NM or Court Appointee, and as a waiver account. When you are submitting something to be efiled, you will select the “waiver account”. If you have questions about efiling, please contact Tyra J. Martinez at 505-455-8200 or sfedtjm@nmcourts.gov
      • Pro se parties:file the Request in the Court Clerk’s office. The Clerk’s office will keep the original. Ask the filing clerk to endorse (stamp) each of the copies. If you can’t go to the Courthouse in person, you can file by fax 505-455-8280 or mail by mailing the original and copies to the Court Clerk’s Office, First Judicial District Court, P. O. Box 2268, Santa Fe, NM 87504-2268. Be sure to include stamped envelopes, one with your name and address, and one for each party with their name and address. Include a letter asking the Court Clerk to file your Request, return endorsed copies to you and the other party by mail, and provide a copy to the ADR Office.
   3. Pro se parties: Take another endorsed copy to the Self Help Center (next to the Court Clerk’s offices), along with one set of the self-addressed, stamped envelopes.
   4. You must also provide copies of the Request you file to all parties.Use the other set of envelopes to mail the Request to all parties. You must do this yourself; court employees will not mail copies of the Request to the other parties for you.

2. The ADR Office will assign a settlement facilitator, and will generate a Referral Order, which will be given to the judge’s assistant along with the envelopes.
3. The judge’s assistant will get the Order signed by the judge and entered in the court file, and then mail it to the Settlement Facilitator and all parties using the envelopes provided by the person who filed the Request.
   An Order of Referral to Settlement Conference is a court order and all of its terms MUST be obeyed by every person to whom it applies! DO NOT IGNORE ANY PART OF THE REFERRAL ORDER!

4. Each party MUST contact the Settlement Facilitatorwithin 10 days after entry of the Order to schedule a Settlement Conference. Scheduling of settlement conferences is NOT done by the ADR Office.
5. Each party must provide the information described on the Settlement Conference Information Sheetto the Settlement Facilitator no later than 5 business days before the date selected for the Settlement Conference. Do not return the Settlement Conference Information Sheet to the ADR Office. Fill it out completely, and be as specific as you can about the issues. The more information the Settlement Facilitator has, the better he or she will be able to help you.
6. All the participants – parties andtheir attorneys – in the Settlement Conference except the Settlement Facilitator must complete a short, anonymous, confidential, evaluation of the Settlement Facilitator’s performance within 5 business days after the Settlement Conference concludes. Completed form should be returned to the Court Constituent Services Division, ADR Office as directed on the evaluation form.
7. Within 5 business days after the settlement conference, the Settlement Facilitatorwill file a Certificate of Compliance with the Court Clerk.
8. If any participant at any time does not comply with any term of the Order, the other participants should remind him/her of the terms of the Order. If non-compliance continues, any other participant may file a Notice of Non-Complianceusing the court’s form. The judge may take any appropriate action in response to the Notice of Non-Compliance.
9. The Settlement Facilitator or any party may file a Request for Replacement Settlement Facilitatorusing the proper form. No explanation is required for requesting that the Settlement Facilitator be replaced. If you use this form, the ADR Office will assign a replacement Settlement Facilitator from the Court’s list. If you and the other parties agree on a replacement Settlement Facilitator, use the Stipulated Request for Replacement Settlement Facilitator. The rest of the procedures are the same as for a Request for Referral to Settlement Conference.
10. If your case is referred to settlement conference and you do not feel that a settlement conference will be helpful in resolving it, you may ask the Court’s permission not to have a settlement conference by filing a Motion for Excusal from Settlement Conference (get the form from the FJDC website or the Self Help Center). Remember, just because you ask for excusal doesn’t mean the judge will grant your request. You must continue to comply with the Referral Order until it is modified by another court Order. 

THEY are called the RESPONDENT

YOU must legally notify each respondent that you filed a petition against them.

YOU must file proof with the court that you did so.

The court WILL NOT do this for you.

1. Legal Notice by Personal Service
   If you know where the respondent works, lives, or can be found.
   A friend or family member (must be over 18) delivers a copy of all the paperwork to the respondent.

2. Legal Notice by Mail
   If you have a good mailing address for the respondent.

3. Legal Notice by Publication
   If you DON’T know where the respondent works, lives, or can be found.
   Your case will NOT move forward unless you legally notify each respondent that you filed a petition against them. You may want to see a lawyer for advice.
   This information sheet only highlights the 3 most common ways to serve the respondent. For details, see Rule 1-004 NMRA.

Step 1—Determine which type of expungement petition you need to file.

• Did your case result in a conviction? If the answer is yes, you will need to file a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-5 (Conviction).  Fill out Form 4-953.  See steps below for more instructions.

• Please note, a deferred sentence that was later dismissed is considered a conviction.

• Did your case result in release without conviction? If the answer is yes, you will need to file a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-4 (Release without Conviction).  Fill out Form 4-952.  See steps below for more instructions.  Your answer will be yes if:

• You were arrested but no charges were filed;
• Your charges were dismissed; OR
• You entered a guilty/no contest plea and received a conditional discharge.

• Are you seeking to expunge records of cannabis-related charges pursuant to the Cannabis Regulation Act? If the answer is yes, you will need to file a Petition for Request for Automatic Expungement Under NMSA 1978 Section 29-3A-9 (Automatic Expungement of Arrest and Conviction Records; Cannabis Regulation Act, Sections 26-2C-1 to -42 NMSA 1978).  Fill out Form 4-954.  You only need to fill out this form for this type of petition, and may skip the remaining steps.

• Were you a victim of identity theft and want to expunge arrest or criminal records that were a result of the identity theft? If the answer is yes, you will need to file a Petition to Expunge Arrest Records and Public Records Under Section 29-3A-3 (Identity Theft).  Fill out Form 4-941.  See steps below for more instructions.  You only need to fill out this form for this type of petition this type of petition, and may skip the remaining steps.

Step 2—Obtain the necessary documents to file with your petition.

• If you are filing a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-5 (Conviction), you will need to obtain the following records:

• Criminal background check from the New Mexico Department of Public Safety. This record must be current and have a date that is not older than 30 days before the expungement petition is filed.  Visit https://www.dps.nm.gov/top-links-for-nm-residents/fingerprinting-and-background-checks to request this record.

• Criminal background check from the Federal Bureau of Investigations (FBI). This record must be current and have a date that is not older than 30 days before the expungement petition is filed. Visit https://www.fbi.gov/services/cjis/identity-history-summary-checks to request this record.

• If you are filing a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-4 (Release without Conviction), you will need to obtain the following records:

• Criminal background check from the New Mexico Department of Public Safety. This record must be current and have a date that is not older than 30 days before the expungement petition is filed.  Visit https://www.dps.nm.gov/top-links-for-nm-residents/fingerprinting-and-background-checks to request this record.

Step 3—Send a copy of your petition to the right agencies by U.S. Postal Service certified mail.

• If you filed a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-5 (Conviction), you must send your petition (including your background checks) to the following agencies:

• New Mexico Department of Public Safety,
• First Judicial District Attorney’s Office, and
• The law enforcement agency that handled your case (Santa Fe Police Department, Santa Fe County Sherriff’s Office, or New Mexico State Police).

• If you filed a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-4 (Release without Conviction), you must send your petition (including your background check) to the following agencies:

• New Mexico Department of Public Safety, and
• First Judicial District Attorney’s Office.

Step 4—File a Certificate of Service. 

• The Certificate of Service tells the Court that you sent your petition to the right agencies.
• You must file a copy of the certified mail return receipts with your Certificate of Service as proof that you sent your petition to the right agencies.

Step 5—Wait for the agencies to file their responses.

• The agencies that receive your petition must file either a Notice of Non-Objection or a Notice of Objection within 60 days from the date they received the petition.

Step 6—File a Notice of Completion of Briefing and Affirmation in Support of Expungement.

• After the agencies file their notices, you must file your Notice of Completion of Briefing using the following forms:

• If you filed a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-5 (Conviction), you must file Form 4-960 and Form 4-960.3.
• If you filed a Petition to Expunge Arrest Records and Public Records Pursuant to NMSA 1978, Section 29-3A-4 (Release without Conviction), you must file Form 4-959 and Form 4-960.2.

Once Step 6 is complete, your case will either be set for a hearing or you will receive notice that your petition has either been granted or denied.