-- Beth Padilla

Updated: 03/16/2017
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What is mediation?

Black’s Law Dictionary defines mediation as “the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute.”

Why should I mediate?

Mediation can be helpful in order to resolve disputes without involving the court. Often, clients that are able to mediate even one issue save thousands of dollars on attorney’s fees. Mediation can also preserve a working relationship between the parties because it can eliminate or lessen the amount of time the parties spend in court. In addition, meditation can offer a relatively quick resolution to a dispute.

What type of case should be mediated?

Many types of cases can be mediated. Mediation is often very beneficial in dissolution of marriage and child custody cases. It is not uncommon for a dissolution of marriage case to cost each party thousands of dollars. If the parties are able to sit down with an impartial party with experience in family law matters, it will likely save them a substantial amount of money.

How does mediation work?

Every mediator will handle mediation differently. Generally, we will ask the parties to submit a pre-mediation statement outlining the issues and the parties’ position. Then, the mediator will meet with both of the parties at the same time. The mediator will facilitate the discussion between the parties. The goal of mediation is for the parties to reach an agreement that will be binding in the case. If the parties reach an agreement, the mediator will draft the agreement and the parties will sign it. The agreement will then be filed with the court.

Padilla Law Mediators

Paul Padilla has been successfully mediating cases for five years. He was professionally trained in Denver. Beth Padilla recently underwent forty hours of professional training. Both Paul and Beth are accepting mediation clients. Padilla Law will offer one Saturday mediation slot per month.

-- Beth Padilla

Child custody matters often come to a head around the holidays. Parents frequently want to change the parenting plan (a.k.a. the custody arrangement) for special holiday events. The reality of our court system is that making changes that require court review or intervention a few weeks before Christmas is unlikely to occur before the holiday. However, this does not necessarily mean parents are stuck with a parenting plan that neither of them wants for the holidays. We often encourage our clients to come up with sensible agreements with their ex-partner to benefit the children, especially during the holidays.

So what can you do if you and your ex agree to change the plan but do not have time to go to court? We suggest you draft a written stipulation explaining in great detail how the parenting plan ordered by the court will be modified for the holiday season. The parties should notarize the stipulation and file it with the court. We can assist families with stipulations on an hourly basis without a retainer. If you would like help drafting a stipulation, please contact us.

-- Paul E. Padilla

This week, the New Mexico Court of Appeals ruled that if a parent’s parental rights are terminated, his or her financial responsibility for the child is also terminated. 

Previously, if the New Mexico Human Services Department terminated a parent’s rights, the parent still had to pay child support to the other parent or the State, if the child was in foster care.

In Colorado, if the Department of Human Services terminates a parent’s rights, the parent no longer has to pay child support.  However, if a parent voluntarily relinquishes his or her rights, they still have to pay child support.  This distinction is to ensure that parents don’t abandon their children simply to avoid financial responsibility.

However, in New Mexico, because the Court of Appeals created a new rule based on the circumstances of a single case, rather than creating a statute that makes a distinction between voluntary and involuntary termination, parents can potentially end their financial responsibility by giving up their parental rights.

Unfortunately, this may incentivize many parents to simply give up their parental rights to avoid paying child support.

The New Mexico Supreme Court may still reverse this decision.  However, until it does, there is no distinction between voluntary and involuntary termination, which may cause significant problems in enforcing child support orders.

Attorney Beth Padilla was chosen as the first attorney to be featured in the Office of the Child's Representative's quarterly newsletter section entitled, "Meet an OCR Attorney." A portion of the article is re-published below:

"Beth Padilla practices in the Sixth and Twenty-Second Judicial Districts in Colorado. She is licensed to practice law in Colorado and New Mexico.

Q: Why did you choose to practice child welfare law?

A: I studied juvenile and family law in law school and was interested in the subject matter. However, I did not practice child welfare law until I relocated from Denver to Durango, Colorado and opened a firm with my husband, Paul Padilla. I decided to contact OCR on the advice of a mentor and judge. It made sense to me that I might be able to help kids in southwest Colorado because I am bilingual in English and Spanish and have an immigration background.

Q: What has been the most rewarding moment for you while working with
children and families in the dependency and neglect system?

A: One of the first D&N cases I received was a family of three young children. The children were removed from one foster home and placed into another based on allegations of abuse. One of the kids, aged six, was asked by a caseworker who the child would contact if he felt unsafe and he responded that he would call his GAL. I was so excited that he not only remembered me but also would turn to me if he felt unsafe in his new placement.

Q: What drives you to continue in this line of work?

A: I am driven to continue with child welfare because I really think I can
help the kids in these cases. The kids in dependency and neglect cases need an adult they can talk to and that is looking out for them. I try to be that
adult."

-- Paul E. Padilla

Recently, several people have come into my office with questions about property rights and what to do after someone has passed away. Unfortunately, many of these people waited too long to do anything, and there was very little I could do for them.

However, this situation is very understandable. The process of losing a loved one and dealing with the property was stressful, and they thought their family would agree on how to handle everything. But, after a couple of years of family conflict, they found out that they had waited too long, and now they have limited options.

When someone passes away, the legal process of handling their affairs and distributing their property is called probate. If there is a Will, it is filed with the court and a person is appointed to make sure the terms of the Will are followed. If there is not a Will, then the person’s property is distributed based on default statutory laws, called intestacy. 

In both Colorado and New Mexico, the general rule is that this process has to start within three years of the person’s death. If you wait too long, then a court will not accept a Will, and its terms will not be enforced. This means that some people may not get the property that was intentionally left to them in the Will.

Obviously, any time lawyers and courts are involved, the process can be expensive and even more stressful. But, surprisingly, in some cases this process can be relatively easy.

When a person dies and does not have a lot of property, their assets can be dealt with without having to go to court.  In Colorado, if a person died in 2013, did not have any real estate, and the total value of their personal property is less than $63,000, the property can be dealt with by using a process called Collection of Personal Property by Affidavit.  In New Mexico, the requirements are similar, but the asset limit is $50,000.

This process allows a person to sign an affidavit and collect all of the deceased person’s assets in order to distribute them according to a Will, or distribute them to the deceased person’s family. To execute the affidavit, all you need is a notary public, and nothing needs to be filed with the court. So, this can save a lot of time and money.

As I said above, the deceased person cannot have any real estate after their death.  But there are several situations that this can occur, even if the person lives in and owns a home at the time of their death. If the property is held in joint tenancy with right of survivorship, or if there is a beneficiary deed or life estate, the property transfers to someone else the moment the person dies.

Therefore, depending on how much other personal property the person had, it may be possible to use the Collection of Personal Property by Affidavit process, and avoid going to court.

The Secretary of the Department of Homeland Security (DHS), Janet Napolitano, recently announced that DHS will treat immigration petitions filed by same-sex married couples the same as petitions filed by heterosexual married couples. This change is fundamental for same-sex partners where one partner is a non-citizen of the United States. Now, all United States citizens or residents may file an immigration petition for their immigrant spouse.

Before the Supreme Court’s recent ruling that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, a same-sex partner was unable to obtain immigration status for his or her spouse. After the Supreme Court’s decision, a spouse may petition for his or her spouse if they were lawfully married in a state that recognizes same-sex marriage.

While the change is a major success for human rights activists and the LGBT community, there are still many questions that must be litigated to resolve. For example, what if a couple is united in a civil union under Colorado law? What happens if a couple marries in a state that recognizes same-sex marriage but then returns to a state that does not recognize same-sex marriage?

For now, immigration attorneys are discussing these issues and preparing to litigate cases that are unjustly denied. If you and your partner are lawfully married and want to petition for immigration status, it may be a good idea to speak with an immigration attorney about your options.

-- Beth Padilla

Often, clients will ask me whether they can help their family members obtain lawful immigration status in the United States. In certain circumstances, a client may petition to bring a family member to the United States.

For example, if Jane is a United States citizen and she wants to bring her sister to the United States from Mexico, she may complete and file immigration documents on behalf of her sister. It is important to understand that for many visa categories, there is a very long wait until a visa is available. In this situation, if Jane filed a petition on May 1, 2013, to bring her sister to the United States, her sister will have to wait about seventeen years until she is legally allowed to come to the United States. Currently, the United States government is processing visa applications filed by United States citizens for their brothers and sisters from Mexico that were filed in 1996. This means that if Jane would have filed for her sister in 1996, it would now be Jane’s sister’s turn to immigrate to the United States.

It is important to understand that the wait time is not the same for all countries. Individuals wishing to immigrate from China, India, Mexico, and the Philippines have the longest wait before a visa is available. You can learn more by viewing the April 2013 visa bulletin, available at: http://www.travel.state.gov/visa/bulletin/bulletin_5900.html.

Keywords: inmigracion de hermanos, hermano ciudadano, Durango immigration, Cortez immigration, Farmington, abogado de inmigracion

-- Beth A. Padilla

Although I have no desire to discuss politics or the recent election, I feel it is important to discuss the current state of immigration law as it relates to Mitt Romney's statements about "amnesty" and undocumented children in the United States.

President Obama established a program in June of this year called Deferred Action for Childhood Arrivals (or DACA). DACA allows young undocumented individuals to receive work authorization in the U.S. and protection from deportation for a period of two years.  The requirements to qualify for DACA include:

• You must be between the ages of 15 and 31;

• You came to the U.S. before the age of 16;
• You have been in the U.S. for 5 years; and
  
• You have no serious criminal activity.

If you qualify for DACA, you must turn yourself in to the Department of Homeland Security and include evidence of the above qualifications in your application for the program.

DACA is not amnesty and it has nothing to do with the DREAM Act. It does not allow anyone to become a resident, a citizen, or to vote in the U.S.

Therefore, it is unclear why Mitt Romney has stated that President Obama gave amnesty to anyone, or that amnesty is now available.  In general, his statements regarding immigration law are wholly inaccurate.

http://www.bbc.co.uk/news/world-us-canada-20344750

-- Paul E. Padilla

There was a lot of commotion this week, with the election season coming to an exciting end and focus turning to how new officials and policies will unfold. In Colorado, Amendment 64 passed, which permits recreational use of marijuana. While legalizing marijuana has been a hot topic for a long time, Amendment 64 certainly doesn’t end the debate.

I admit that I voted for Amendment 64, based on my belief and observations that the concept of “medical marijuana” is a misnomer. Having previously lived one block away from “Marijuana Mile” (South Broadway) in Denver, I have seen firsthand that there is minimal health care taking place in the thriving cannabis industry of Colorado. And, while I have no interest in using marijuana myself or expanding the general population’s access to it, I think marijuana is already widely available, so we might as well collect tax revenue to fund our deteriorating educational system (and maybe fix some potholes – pun intended).

My personal beliefs aside, Amendment 64 will raise many more issues than it resolves. Once the Amendment goes into effect, it will allow people 21 years old and up to possess an ounce of marijuana and grow six plants in their homes. This may decrease the number of criminal prosecutions for possession of marijuana, but it will likely open the flood gates to other legal issues.

The most significant problem that exists with recreational marijuana is federal law. A looming black cloud (no pun intended) will exist over Colorado as long as the federal government prohibits its use and possession. The obvious risk this creates is that an individual will have a false sense of security buying and carrying marijuana, because it is allowed under Colorado law. But that person may still be prosecuted in federal court, which is generally much more serious.

An additional issue created by the conflict with federal law is that marijuana dispensaries cannot open bank accounts, because the banking industry is regulated at the federal level. Because any banking activity connected with illegal activity (i.e. marijuana) is considered money laundering, dispensaries cannot accept credit cards or open bank accounts. Thus, you have a multi-million dollar industry that is stuffing its mattresses with cash. And lots of cash usually means lots of crime.

In addition to the federal issues, it is important to recognize the other legal consequences of recreational marijuana. In the west, DUI rates are incredibly high due to minimal public transportation and significant cultural factors. With expanded availability of marijuana, it is essentially guaranteed that the DUI rates will also increase.

Also, just as alcohol and alcoholism has been pervasive in family and employment law, marijuana’s impact will also grow (pun intended). Even though marijuana will now be legal and available, it doesn’t mean that the courts will allow or tolerate its use in family and employment settings.

So, while you may soon be able to buy marijuana freely in Colorado, it remains to be seen just how big of an impact recreational marijuana will really have on the state.

The financial and moral implications of a DUI conviction are widely known. MSN reported that the financial implications of a DUI total approximately $10,000. This figure is based upon the cost of bail, towing your vehicle, impound fees, increased auto insurance, legal fees, probation fees, and perhaps even a breathalyzer system installed in your vehicle. The risk to human life is obviously a serious implication of drunken driving.

However, the true cost of a DUI may lie beyond the financial and moral implications. DUIs can impact a person’s child custody case and immigration
status.

In a child custody case, the judge must determine what is in the best interests of the child. Some factors judges use to determine the best interests of a child include the mental and physical well-being of both parents and the ability of each parent to place the needs of the child above his or her own needs. If a parent has a recent DUI conviction, a judge may believe that parent has a drinking problem and therefore could question his or her mental well being. In addition, a judge may believe that a parent with a DUI cannot put the needs of a child above his or her own needs to drink alcohol. A DUI conviction can negatively impact a child custody case.

In addition, a DUI may impact an individual’s immigration status. Many immigrants are brought to the attention of Immigration and Custom Enforcement (ICE) once they are arrested. Often, an immigrant will be arrested for a DUI and then will face a deportation case. Importantly, even lawful permanent residents, or people with a green card, may be deported. A DUI conviction impacts whether an individual can get an immigration bond if the immigration judge believes he or she is a danger to the community. Finally, a DUI conviction can impact an individual’s defenses to deportation.

In conclusion, the true cost of a DUI includes much more than $10,000 and the risk to human life. A DUI conviction may negatively impact your ability to see your children or remain in the United States.

Keywords: Aztec DUI, Bloomfield DUI, Cortez DUI, Durango DUI, Farmington DUI, Pagosa Springs DUI, cost of DUI, impact of DUI, DUI custody, DUI immigration, DUI defense, DUI inmigracion, DUI custodia de ninos.