Children Testifying in Court - The Pros and Cons

CAN MY CHILD TESTIFY IN NEW MEXICO FAMILY COURT?

As an Albuquerque family law attorney, I am routinely asked, “Can my child testify in New Mexico family court?” Children are a vital part of the family structure and have firsthand knowledge about the family dynamic. Children see and hear what is going on in a family home. Children pick up on issues within the home.

At times, during a New Mexico child custody dispute, one parent raises allegations of abuse or neglect against the other parent. This abuse and neglect comes in many forms, including:

Possibly the child has information that supports one parent’s claim. Because of this fact, parents often try to use the child’s information through:

Recording the child
Written statement from the child
Asking for the child’s voice to be heard in court

New Mexico judges detest the idea of children testifying in court. I have handled child custody cases across New Mexico for over a decade. I have never seen a judge, in any courthouse in New Mexico, request or allow a child to testify in court. Even the act of asking a judge for a child to testify in court will raise red flags in the judge’s mind regarding the parent’s motives, and can suggest that a parent is not looking out for the child’s best interests.

Testifying in court can be incredibly stressful. Adults routinely cry and are highly emotional during testimony. Being questioned and cross examined isn’t a pleasant experience. In short, it is highly detrimental to a child’s well being to thrust them into litigation and courtroom testimony.

Generally speaking, NM family courts do not want children involved with the custody or divorce case. In the court’s eyes, the costs of child involvement with family cases greatly outweighs the benefits. Judges don’t like parents talking to the child about the divorce or custody case — much less thrust the child into the case.

With this said, at times child involvement cannot be avoided. In these instances the court uses the following methods to hear the child’s voice, while minimizing the detrimental impact of being thrown into the tornado of family court litigation.

HEARING A CHILD’S VOICE REGARDING ABUSE, NEGLECT, OR BEST INTERESTS

Child custody issues are decided based on the child’s best interests. When allegations of abuse, neglect, or parental fitness are raised, the child’s voice can be extremely important. New Mexico court’s generally use the following methods to hear a child’s voice:

Guardian Ad Litem
Court Clinic/Advisory Consultation
11-706 Child Custody Evaluation

A Guardian Ad Litem (GAL) is an attorney that represents the child’s interests and speaks on behalf of the child. GAL’s are an arm of the court that function as the court’s ears and eyes. GAL’s are usually the court’s preferred witness in custody matters, when an investigation is needed to determine a child’s best interests.

GAL’s often interview the child, parties, and “collateral sources” such as counselors, family members, teachers, family friends, to determine what is actually happening in the child’s life.

It can be very difficult to get certain information into evidence, such as witness statements, beliefs, or reports, during trial. The GAL effectively interviews the necessary witnesses, conducts home visits, and can achieve a feel for the child’s best interests that often cannot be captured in court. This “feel” is then reflected to the court in the form of Recommendations.

In Albuquerque, when available, the GAL process is provided by Court Clinic. The Court Clinic process involves a Court Clinician that performs an investigation often called a priority consultation or scheduled consultation.

Court Clinic a low cost means for the court to interview the child, collateral witnesses, and gather necessary information. The Court Clinic process is usually far less expensive than the GAL process and is used in relatively the same manner as a GAL. The ultimately goal of Court Clinic is to provide the court with recommendations regarding the child’s best interests.

HOW OLD DO YOU HAVE TO BE TO TESTIFY IN FAMILY COURT?

New Mexico family courts generally only adults to testify in court. New Mexico courts are extremely reluctant to have minors testify in family matters. A child’s voice is heard through a Guardian Ad Litem, Court Clinician, Advisory Consultant, or 11-706 Child Custody Expert.

CAN MY 14 YEAR OLD CHILD TESTIFY IN FAMILY COURT IN NEW MEXICO?

No. Just because a child is 14 does not mean that the child can or will testify in family court. In New Mexico, if a child is fourteen years or older, the court must consider the child’s desires regarding with whom the child wishes to live. See 40-4-9 (B). The most important word here is consider. The child’s desires are one factor among many that ultimately forms the court’s conclusion regarding the child’s best interests.

Similar to younger children, a fourteen year old’s voice is heard through a GAL, Court Clinic, or Advisory Consultant.

CHILD TESTIMONY THROUGH “IN CAMERA INTERVIEW”

An in camera interview is a meeting or conversation between the judge and child. This conversation usually involves:

In New Mexico, in camera interviews of children generally only occur in smaller, more rural areas such as Valencia County or San Miguel County. NM family courts generally prefer the GAL/Court Clinic process over an in camera interview, because these processes minimize the child’s involvement and exposure to litigation.

If an in camera interview occurs, the child’s thoughts and comments are kept confidential. The judge usually only reports generalities regarding the conversation, and the judge’s beliefs regarding the child’s best interests.

In Albuquerque, in twelve years of practice, I have only seen one judge conduct an in camera interview with a child. This judge has a master’s degree in child psychology and had vast experience as GAL before becoming a judge. This judge is the exception, rather than the norm regarding in camera interviews in Albuquerque.

In NM family court, judges want to hear the child’s best interests. Nevertheless, judges do not want children involved with the process and do not want children testifying in family court.

(505) SANCHEZ HELPS YOU UNDERSTAND CHILD TESTIMONY DURING CUSTODY CASES IN NEW MEXICO

Are you still curious about your Albuquerque custody case or, “Can my child testify in New Mexico family court?” Matthew Legan Sanchez is a tested and trusted child custody lawyer in Albuquerque. Call (505) SANCHEZ for more information regarding your specific child custody case in Second Judicial District Court, Rio Rancho, Belen, Los Lunas, or Santa Fe.