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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86560
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My sister lives in NM and her boyfriend just called her and

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My sister lives in NM and her boyfriend just called her and said he has an injunction that she needs to sign so she cannot take their son over state lines without permission. They are having problems, always have, so my question is this something that if she signs with out a notary is it legally binding? He is also not on the birth certificate. I would appreciate any help. Thank you, XXXXX
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. I am here to help you. There may be a slight delay between your follow ups and my replies as I type out a reply. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not to tell you what you necessarily wish to hear.

I am sorry for your sister's situation. First, can you please tell me if they have official custody orders in place, or, is the custody arrangement informal?

This not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.

Customer: replied 1 year ago.

They have made no arrangements. She has left him several times, for long periods of time in which he has made no attempt to see his son. He is not a good father and has a drinking problem and I know he is doing this just to spite her. I have been trying to get her to move to San Diego with me for a while now and we are trying to make that happen. The child in question is only 2.

Expert:  Ely replied 1 year ago.
Thank you, Emmy. I am working on your matter now, apologies for the wait.
Customer: replied 1 year ago.

It just so happens that she and her son are flying out to visit me tomorrow and he is very manipulative and will force her to sign this before she leaves. Let me know if you need anymore information and thank you so much!


 


Emmy

Expert:  Ely replied 1 year ago.
Emmy,

Custody
Custody can be official (via court order) or unofficial. If he is not on the birth certificate, then he does not even have standing to tell her what to do unless he files in court to have his paternity recognized (see below).

Even if he was on the birth certificate, her taking he child out of state would still be allowed. As parent, both have natural rights to the child and can take the child anywhere they want to. Under N.M. Stat. Ann. § 30- 4-4(A)(5)(a), if she knows that it is his child, she may still take the child with her anywhere, provided that she is not "maliciously taking, detaining, concealing or enticing away or failing to return that child without good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child of his right to custody." So if she tells him where she is headed, it is generally seen as fine to do.

Filing in Court
To Stop her, he'd have to file for an injunction in court and show that she should not relocate with the child because it is not in the "child's best interest." Jaramillo v. Jaramillo, 823 P. 2d 299 - NM: Supreme Court 1991. However, the Court generally lets the mother go as long as her move is due to family, employment, better living environment, etc. The Court generally favor's the formal/informal custodian's request. However, the father may get an injunction in Court to have this matter heard.

She should really not sign anything, because we do not know what she'd be signing. It may be a request to sign an agreement making her stay here, etc. We do not know. However, he cannot do anything without a court order, or stop her, unless she signs. So she probably should not. And he cannot make her sign anything.

As for the injunction he already has, she can call the Court (tomorrow morning) and see if this is true, and/or ask him to fax over the order, although it has to be signed by the Judge, and not just a copy of an order without the Judge's signature.

IMPORTANT INFO: I hope this finds you well. Please use REPLY TO EXPERT to keep talking, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then SUBMIT, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

He is going to scare her into signing it as she will be gone for 10 days and if she doesn't who knows what he will do to her stuff while she is gone. How can I tell if it a real document?

Expert:  Ely replied 1 year ago.
Hello,

If she knows her rights, she does not have to sign, so communicate with her as soon as you can. What part of NM is this so I can provide a number for her to call and verify?
Customer: replied 1 year ago.

She lives in Las Cruces. Can I call or does it have to be her? She can't make phone calls like this with him around.

Expert:  Ely replied 1 year ago.
It has to be her, I am afraid.

This would be the Third Judicial District Court. She can call the court at(NNN) NNN-NNNN ask for the family court, and explain that she needs to see if anything has been filed under her name and give them the name to run.

IMPORTANT INFO: I hope this finds you well. Please use REPLY TO EXPERT to keep talking, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then SUBMIT, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86560
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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