Can Children Express Preference in New Mexico Custody Proceedings?

An overview of the effects a child’s preference on custody in New Mexico.

Children may prefer a certain parent at different ages and stages. However, for parents in the midst of a custody battle, a child’s preference has consequences that last well beyond a childhood stage. A judge determines how much weight to give a child’s parental inclination. In deciding custody, the court’s job is to find the arrangement that serves the best interests of the child.

This article provides an overview of the impact of a child’s preference on custody proceedings in New Mexico. If after reading this article you have questions, please contact a local family law attorney for advice.

Child Custody Basics in New Mexico

A judge can’t determine a child’s best interests by using simple formula. Custody decisions are based on a number of factors. Furthermore, judges have a lot of discretion when it comes to determining what’s in a child’s best interests.

The following factors are considered in every custody case, including:

  • each parent’s wishes regarding custody
  • the child’s wishes regarding custody
  • the child’s relationship with siblings
  • the child’s adjustment to home, school and community
  • each parent’s physical and mental health, and
  • the child’s physical and mental health.

A court may also evaluate any other factor it deems relevant to custody. In some cases, a child’s religious upbringing and scholastic achievements are also considered. For more information about custody decisions in New Mexico, see Child Custody in New Mexico: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A court must consider the wishes of a child who is 14 years old or older. Still, a younger child who can make an independent decision can have his or her wishes considered as well. While a court will listen to a 14 year-old’s custody desires, it isn’t bound by the child’s preference.

For example, in one New Mexico case a 14 year-old boy’s custody preferences were considered, but weren’t followed. The court refused to grant the boy’s wish to change custody from his father to his mother even though the boy was of sufficient age, discretion and intelligence. The court looked at the child’s preference but ultimately found that it wasn’t in the child’s best interests to change custody.

Similarly, in another case a 14 year-old’s wishes were heard but not awarded. The 14 year-old boy expressed a preference to live with his maternal grandparents over his father. However, the court decided that the child’s desires didn’t mirror his best interests. Although the child was sufficiently mature, his grandparents had limited the boy’s contact with his father. Thus, while the child’s desires were considered, the court refused to give the grandparents custody.

Well-intended parents can’t use a letter or diary from their child to demonstrate the child’s custodial desires. Moreover, a parent can’t compel his or her child to testify in a custody proceeding. In some cases, children can tell their custody wishes to a child therapist or custody evaluator. Nevertheless, a child’s maturity, judgment skills and overriding best interests will ultimately determine how much weight his or her custody wishes are given.

Will My Child Have to Testify in Open Court?

Children rarely take the witness stand during custody trials. Typically, judges shield children from their parents’ custody disputes. A child can be frightened or stressed if he or she is forced to testify.

However, many children want to have a voice in their parents’ custody proceedings. These children can still have their wishes heard without taking the witness stand. A judge may hold a private interview with the child in chambers. Parents are excluded from these in chambers interviews. A court reporter is required to attend the in chambers hearing and attorneys may also attend. Although the court reporter will take notes of the hearing, the transcript will not become part of the court record unless the case is appealed.

In certain situations a guardian ad litem may be appointed to interview the child and ascertain his or her custody wishes. The guardian ad litem, not the child, represents the child’s best interests and wishes at any trial on custody.

If you have additional questions about the effects of children’s preferences on custody proceedings in New Mexico, contact a local family law attorney for advice.

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