A. In cases where the department has provided cash assistance to children in a household, the court shall award judgment in favor of the department and against the noncustodial parents of the children for child support, calculated pursuant to Section 40-4-11.1 NMSA 1978, for all months in which the children received cash assistance benefits.
B. Equitable defenses available to the noncustodial parent in claims by the custodian for retroactive support or past due support shall not operate to deprive the department of its right to request retroactive support or past due support for months during which the noncustodial parent's children received cash assistance benefits.
C. Amounts of support collected that are in excess of the amounts specified in Subsections A and B of this section shall be paid by the department to the custodian of the child.
D. No agreement between any custodian of a child and a parent of that child, either relieving the parent of any duty of child or spousal support or responsibility or purporting to settle past, present or future support obligations, either as a settlement or prepayment, shall act to reduce or terminate any rights of the department to recover from that parent for support provided, unless the department has consented to the agreement in writing.
E. The noncustodial parent shall be given credit for any support actually provided, including housing, clothing, food or funds paid prior to the entry of any order for support. The noncustodial parent has the burden to prove that the noncustodial parent has provided any support.
F. An application for public assistance by any person constitutes an assignment by operation of law of any support rights the person is entitled to during the time the person's household receives public assistance, whether the support rights are owed to the applicant or to any family member for whom the applicant is applying for or receiving assistance. The assignment includes all support rights that accrue as long as the applicant receives public assistance.
G. By operation of law, an assignment to the department of any and all rights of an applicant for or recipient of medical assistance under the medicaid program in New Mexico or supplemental security income through the social security administration:
(1) is deemed to be made of:
(a) any payment for medical care from any person, firm or corporation, including an insurance carrier; and
(b) any recovery for personal injury, whether by judgment or contract for compromise or settlement;
(2) shall be effective to the extent of the amount of medical assistance actually paid by the department under the medicaid program; and
(3) shall be effective as to the rights of any other individuals who are eligible for medical assistance and whose rights can legally be assigned by the applicant or recipient.
An applicant or recipient is required to cooperate fully with the department in its efforts to secure the assignment and to execute and deliver any instruments and papers deemed necessary to complete the assignment by the department.
History: 1978 Comp., § 27-2-28, enacted by Laws 1981, ch. 90, § 2; 1982, ch. 12, § 2; 1991, ch. 223, § 1; 1995, ch. 202, § 1; 2009, ch. 32, § 1.
ANNOTATIONSRepeals and reenactments. — Laws 1981, ch. 90, § 2, repealed former 27-2-28 NMSA 1978, as amended by Laws 1973, ch. 376, § 12, relating to actions brought by the department of health and social services against the person responsible for the support of a spouse or minor children who are recipients of public assistance, and enacted a new 27-2-28 NMSA 1978.
The 2009 amendment, effective June 19, 2009, deleted former Subsection A, which provided for the liability of a noncustodial parent for repayment of public assistance; deleted former Subsection B, which provided for payment of support for the period prior to the granting of public assistance; added new Subsections A and B; in Subsection E, at the end of the sentence, deleted "on the issue of any payment" and added "to prove that the noncustodial parent has provided any support"; in Subsection F, deleted "from any other person" and added "during the time the person's household receives public assistance" and deleted the former provision in the last sentence that limited support rights to those that had accrued at the time of application for public assistance and that provided that the assignment continues as an assignment of all support rights the applicant is entitled to receive.
The 1995 amendment, effective June 16, 1995, deleted a proviso relating to claims for reimbursement by the human services department six years prior to filing an action from the end of Subsection A and made a minor stylistic change in Subsection C.
The 1991 amendment, effective June 14, 1991, inserted "human services" preceding "department" throughout the section; added Subsections F and G; and made a minor stylistic change in Subsection C.
Contempt proceeding brought to enforce child support order is civil in nature. State ex rel. Dep't of Human Servs. v. Rael, 1982-NMSC-042, 97 N.M. 640, 642 P.2d 1099.
State brings action as assignee of claim for nonsupport. — Where the state brings an action under this section, it is merely acting as an assignee of the minor's mother's claim for nonsupport rather than exercising its police power, and is therefore acting as a private party. State ex rel. Dep't of Human Servs. v. Rael, 1982-NMSC-042, 97 N.M. 640, 642 P.2d 1099.
State not barred by laches. — Where a determination of the paternity of a child is in the public interest, as when the state is seeking reimbursement for payments it has made in the past, as well as future support payments for so long as the child receives public assistance, absent proof of inexcusable neglect, the state will not be barred by the doctrine of laches from maintaining such an action. State ex rel. Dep't of Human Servs. v. Davis, 1982-NMSC-139, 99 N.M. 138, 654 P.2d 1038.
Court cannot relieve parent of duty to support child. — In adopting a valid decree, a judge cannot discharge a parent of his or her duty to support his or her child and thereby place the burden on the taxpayers. Martinez v. Martinez, 1982-NMSC-097, 98 N.M. 535, 650 P.2d 819.
Parents cannot enter into an agreement to extinguish a parent's duty to support their children before executing an assignment of support rights to a state agency. Parents have a duty to support their children and cannot rid themselves of it by transferring the duty to someone else. Martinez v. Martinez, 1982-NMSC-097, 98 N.M. 535, 650 P.2d 819.
Court cannot relieve parent from obligation to department for public assistance paid, in the past and in the future, on behalf of the children. Martinez v. Martinez, 1982-NMSC-097, 98 N.M. 535, 650 P.2d 819.
Noncustodial parent's repayment of public assistance. — A noncustodial parent's obligation for repayment of public assistance spent on children may be ascertained without regard to the obligations of any other parent, including other noncustodial parents. State ex rel. Human Servs. Dep't v. Barela, 1994-NMCA-036, 117 N.M. 526, 873 P.2d 272.
Parent's pro se status does not relieve parent of statutory burden to prove affirmatively her contribution to her children's support. State ex rel. Human Servs. Dep't v. Barela, 1994-NMCA-036, 117 N.M. 526, 873 P.2d 272.
Equitable reduction. — This section aids in the implementation of the subrogation provisions of Section 27-2-23 NMSA 1978 and provides the same equitable remedy; the human services department is not entitled to full reimbursement in every case where an injured recipient of medicaid recovers from a tortfeasor. Kahrs v. Sanchez, 1998-NMCA-037, 125 N.M. 1, 956 P.2d 132, cert. denied, 124 N.M. 589, 953 P.2d 1087.
Law reviews. — For article, "Child Support Enforcement: The New Mexico Experience," see 9 N.M.L. Rev. 25 (1978-79).
For article, "Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings," see 14 N.M.L. Rev. 275 (1984).