A. The department is designated as the single state agency for the enforcement of child and spousal support obligations pursuant to Title IV D of the federal act with the following duties and powers to:

(1) establish the paternity of a child in the case of the child born out of wedlock with respect to whom an assignment of support rights has been executed in favor of the department;

(2) establish an order of support for children receiving aid to families with dependent children and, at the option of the department, for the spouse or former spouse with whom such children are living, but only if a support obligation has been established with respect to such spouse or former spouse, for whom no order of support currently exists and seek modification, based upon the noncustodial parent's ability to pay, of existing orders in which the support order is inadequate to properly care for the child and the spouse or former spouse with whom the child is living;

(3) enforce as the real party in interest any existing order for the support of children who are receiving aid to families with dependent children or of the spouse or former spouse with whom such children are living;

(4) provide services to non-aid families with dependent children in the establishment and enforcement of paternity and child support obligations, including locating the absent parent. For these services, the department is authorized to establish and collect fees, costs and charges permitted or required by federal law or by regulations adopted pursuant to that federal law; and

(5) adopt regulations for the disposition of unclaimed child, spousal or medical support payments.

B. In all cases handled by the department pursuant to the provisions of this section, the child support enforcement division or an attorney employed by the division represent the department, to the exclusion of any other party, in establishing, modifying and enforcing support obligations.

C. An attorney employed to provide the Title IV D services represents only the department's interests and no attorney-client relationship shall exist between the attorney and another party.

D. The department shall, at the time an application for child support services is made, inform the applicant that neither the Title IV D agency nor the attorney who provides services under this section is the applicant's attorney and that the attorney who provides services under this section shall not provide legal representation to the applicant.

E. The department may initiate an action or may intervene in an action involving child support.

F. The attorney employed by the department pursuant to this section shall not act as a guardian ad litem for the applicant.

G. A court shall not disqualify the department in a legal action filed pursuant to the Support Enforcement Act of the federal Social Security Act because the department has previously provided services to a party whose interests are now adverse to the relief requested.

History: 1978 Comp., § 27-2-27, enacted by Laws 1981, ch. 90, § 1; 1982, ch. 12, § 1; 1984, ch. 98, § 1; 1995, ch. 46, § 1; 2003, ch. 283, § 2; 2004, ch. 41, § 1.

Repeals and reenactments. — Laws 1969, ch. 182, § 1 repealed 13-1-27, 1953 Comp., relating to notice to law enforcement officials of furnishing of aid to deserted or abandoned child, and enacted a former 27-2-27 NMSA 1978.

Laws 1981, ch. 90, § 1 repealed former 27-2-27 NMSA 1978, as enacted by Laws 1969, ch. 182, § 1, relating to duties of the department of health and social services regarding an absent parent of a dependent child, and enacted a new 27-2-27 NMSA 1978.

Cross references. — For state case registry of child support obligors and other enforcement procedures, see 27-1-8 NMSA 1978 et seq.

For provision requiring welfare payments be disregarded in making award of child support, see 40-4-11 NMSA 1978.

For child support guidelines, see 40-4-11.1 NMSA 1978.

For Mandatory Medical Support Act, see Chapter 40, Article 4C NMSA 1978.

Compiler's notes. — Title IV D of the federal act, referred to in the introductory paragraph, means Title IV D of the federal Social Security Act, which appears as 42 U.S.C. § 651 et seq. See 27-2-2 NMSA 1978.

The 2004 amendment, effective May 19, 2004, amended Subsection B to add "to the exclusion of any other party" and added new Subsections C through G.

The 2003 amendment, effective June 20, 2003, added the Subsection A designation; redesignated former Subsections A to D as Paragraphs A(1) to (4) and Subsection E as present Subsection B; substituted "currently" for "presently" following "order of support" in Paragraph A(2); and added Paragraph A(5).

The 1995 amendment, effective June 16, 1995, deleted "human services" preceding "department" in four places; in Subsection D, substituted "provide services to" for "represent" at the beginning of the first sentence and "For these services" for "For such representation" at the beginning of the second sentence; and added Subsection E.

Paternity action on behalf of child past majority. — The child support enforcement division could not bring paternity and past child support action on behalf of twenty-year-old child; although such action could be maintained by the child under the Uniform Parentage Act, its outcome had no bearing upon the department, and, therefore, department had no standing. State ex rel. Salazar v. Roybal, 1998-NMCA-093, 125 N.M. 471, 963 P.2d 548, cert. denied, 125 N.M. 322, 961 P.2d 167.

Substitution of child as real party in interest. — Where it was held that human services department was without standing to maintain action on behalf of twenty-year-old child, child could be substituted as real party in interest with no effect on his substantive rights, if, on remand, it was determined that the department's error was an honest mistake. State ex rel. Salazar v. Roybal, 1998-NMCA-093, 125 N.M. 471, 963 P.2d 548, cert. denied, 125 N.M. 322, 961 P.2d 167.

State not barred by laches in determining paternity. — 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.

Law reviews. — For article, "Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings," see 14 N.M.L. Rev. 275 (1984).