Can a Child Pick Which Parent They Want to Live with?

Parents that are experiencing custody or timesharing issues commonly wonder, “Can a child pick which parent they want to live with?”

Technically a child does not have the legal capacity to choose until the child reaches eighteen.  Like most legal issues, however, there are gray areas involved with children choosing which parent they want to live with.

NEW MEXICO COURT’S BELIEF 

New Mexico courts believe that children are best served when raised by both parents.  When a NM court becomes involved with a custody or timesharing matter, the court is always guided by a child’s best interests.  NM courts try to maximize time between each parent, based on the following:

• The child’s age
• Distance between parents
• Communication between parents
• Child’s adjustment to current school
• Each parent’s participation in the child’s life
• Particularly in Albuquerque, the Suggested Timesharing Guidelines

A child’s preference can play a role with the court determining the child’s best interests.  A child’s preference and concerns are generally considered either through a Court Clinic or GAL evaluation and recommendations.

A child’s preference is only one factor among many that NM courts use to determine the child’s best interests.

CAN CHILDREN UNDER FOURTEEN CHOOSE WHICH PARENT THEY LIVE WITH IN NEW MEXICO?

No.  Children under fourteen cannot choose which parent they live with.  A minor turning fourteen does not grant the child power to decide that the family court must follow without question. With that said, New Mexico courts always listen to children of any age regarding safety issues, or other concerns, within a parent’s home.

A child’s voice is generally heard through:

• Guardian Ad Litem
• Court Clinic
• 11-706 custody evaluation

New Mexico courts never allow a child to testify in court, and usually only will allow in-camera interviews in rare, emergency situations.  NM courts prefer for a child’s voice to be heard through a court appointed individual, or evaluation.

NEW MEXICO COURTS MUST CONSIDER A CHILD’S DESIRES AT FOURTEEN

New Mexico law draws a clear line in the sand at fourteen.  New Mexico law requires family courts to consider the desires of a minor that is fourteen years of age or older.   This law, however, only requires the family court to consider the child’s desires.

The family court is not forced to follow a child’s desired timesharing that is against the child’s best interests.  At times, the court may determine that the child’s desired timesharing is not in the child’s best interests.  At other times, the court may find that the child has been coached, manipulated, or potentially that parental alienation is present.

Once again, the child’s best interests will guide the court’s ultimate decision.

NEW MEXICO COURTS USUALLY ALLOW CHILDREN THAT ARE SIXTEEN TO “DECIDE WITH THEIR FEET.”

New Mexico law requires the courts to consider, but not necessarily follow a child’s desires at fourteen.  When minors turn sixteen, largely because they have greater independence and are nearing emancipation, the court will enable the minors to “decide with their feet.”

The general practice with NM family courts is that the court will not go against a sixteen-year old’s desires unless there are:

• Mental health issues
• Medical concerns
• Other physical, mental, or safety issues are present

(505) SANCHEZ HELPS YOU UNDERSTAND, “CAN A CHILD PICK WHICH PARENT THEY WANT TO LIVE WITH IN ALBUQUERQUE, NEW MEXICO?”

Matthew Sanchez has over a decade of child custody trial experience to help you understand, “Can a child pick which parent they want to live with?”.  Sanchez has the real world, tested experience to guide your  custody case in Bernalillo, Sandoval, and Valencia counties. For more information on divorce and family law in New Mexico call (505) SANCHEZ.