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Grant v. Cumiford3/31/2005
{1} Both Mother and Father appeal from the district court's custody, timeshare, and child support order that arose from Father's motion to modify custody, timesharing, and support. The district court sealed the trial on the merits, but allowed a local television station to attend and televise the proceedings, while prohibiting the release of the recording. The court determined that there had been no material change in circumstances to warrant a change in legal and physical custody, but clarified timesharing and support responsibilities of the parents and ordered the parties to pay their own attorney fees. The court also ordered Father to pay Mother's share of the guardian ad litem's (GAL) fees and to deduct that amount from his support responsibilities. Mother appeals the rulings on child support and attorney fees; Father appeals the custody ruling. Both parents challenge different aspects of the court's rulings sealing the hearing but permitting television cameras in the courtroom. We affirm the court's custody ruling, but for the reasons that follow, we reverse and remand the support issues. In light of our rulings, we also reverse and remand the issue of attorney fees.
BACKGROUND
{2} Father and Mother were never married, but had a child on November 2, 1994. On April 22, 1996, the district court entered a stipulated judgment and decree of custody and child support giving the parents joint legal custody. By that time, Mother and Child were living in Albuquerque, and Father was living in Norman, Oklahoma. The order provided that Mother would have primary physical custody and Father would have periods of visitation, but stated that Child would not sleep away from his own bed and/or Mother until he was at least two and one-half years old. Evidence was presented at trial that Child made his first visit to Oklahoma in December 1998. Between 1999 and 2000, Child made approximately two visits to Oklahoma, with his parents meeting in Amarillo, Texas to transfer him from one parent to the other. In the summer of 2001, when Child was six, he began to fly to Oklahoma, and in the summer of 2002, Father told Mother that he wanted Child to spend most of the summer with him, but Mother wanted Child to stay in Oklahoma for only two to three weeks. Father testified that negotiations about visits became increasingly difficult, and in June 2002 he filed a motion to modify custody due to a significant change in circumstances. In his motion to modify custody, Father sought primary physical custody, claiming that Child wanted to spend more time with him and that Mother was failing to comply with the provisions of the 1996 decree. Father requested the appointment of an expert under Rule 11-706 NMRA to conduct a custody evaluation and to make recommendations as to Child's best interests.
{3} Following the filing of Father's motion to modify custody, the relationship between Child's parents appears to have become increasingly contentious, and a GAL was appointed to represent Child's best interests. Then in November 2002, the court appointed an expert under Rule 11-706 to perform a custody evaluation. The court-appointed expert completed the psychological evaluation and parenting plan on March 14, 2003, which recommended a continuation of joint legal custody and primary residence with Mother.
{4} By this time, numerous motions had been filed, alleging claims by Father that Mother was not complying with the joint custody and visitation provisions, allegations by the GAL that Mother had made unsubstantiated claims of sexual abuse against Father, and claims by Mother that the GAL was hostile to her and not objective. The conflict between the parties culminated in Father's filing a motion
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