Girl outdoors blowing dandelion seeds.

People who study child development claim giving kids the opportunity to make decisions, and the tools to understand how their decisions impact themselves and others, is one of the most important things parents can do. Flexing their decision-making muscles can help kids feel less upset and anxious when challenges arise. 

This is one of the reasons why New Mexico policymakers, who want judges to make decisions in the best interest of the child, have mandated that courts consult children about their preferences when child custody decisions are being made. 

Below is a rundown of the different ways judges typically approach this important task, and some tips Attorney Bob Matteucci has for families in the Albuquerque area who are concerned about how their child’s wishes will impact their attempt to co-parent.

Most Families Negotiate a Parenting Plan Before Heading to Court 

Most of the families Attorney Bob Matteucci works with choose to negotiate a parenting plan rather than allowing a judge to decide how much time they get to spend with their child. Parents work with their attorneys or a mediator to come to an agreement everyone can live with, and the judge signs off on it. 

The judge will review the parenting plan to ensure it is in the best interest of the child, and may also check that it includes: 

  • (1) statements regarding the child’s religion, education, child care, recreational activities, and medical and dental care;
  • (2) designation of specific decision-making responsibilities;
  • (3) methods of communicating information about the child, transporting the child, exchanging care for the child, and maintaining telephone and mail contact between parent and child;
  • (4) procedures for future decision-making, including procedures for dispute resolution; and
  • (5) other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.

State law encourages all parents to address these issues in their parenting plans.

The judge may want to speak with the children about the plan just to confirm they understand what is going on, but this is typically done in the judge’s office, in a somewhat casual setting, to put the child at ease. Except under very rare circumstances — like if the child reveals they are being abused by one of their parents — the parenting plan negotiated by the parents will be approved. 

When an Amicable Agreement Cannot Be Reached

Although New Mexico family court judges prefer that parents craft their own parenting plans and negotiate a custody agreement amongst themselves, they will step in and force a court-crafted agreement on the family if necessary. 

State law specifies the factors judges are supposed to consider in these cases — including the wishes of the child. 

NM Stat § 40-4-9 says: 

A. In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including, but not limited to:

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

B. If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor.

C. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken.

Children Under the Age of Fourteen 

If your child is under the age of fourteen, the judge is required to consider his or her wishes, as well as a number of other factors. The weight the judge ascribes to the child’s wishes depends on their age and maturity. 

As noted in section C, the judge will take testimony from the child in his or her office so the child is not on public display and is more inclined to speak freely. 

The best thing a parent can do to help their child in this situation is to reassure them the judge is someone who wants to help them. And encourage the child to be honest with the judge. 

The worst thing a parent can do is attempt to coach their child to say they want a particular outcome or to badmouth the other parent. Judges see right through this and do not take favorably to it. 

Children Over the Age of Fourteen 

If a child is over the age of fourteen, the judge is required to give more weight to his or her wishes regarding child custody. However, this does not mean that the judge will award primary physical custody to whichever parent a teenager tells them to. Judges may still weigh other factors and must do what is in the best interest of the child. 

Serving New Mexico Families with Dignity & Compassion

Figuring out how to co-parent with your former spouse is never easy. While you both want what is best for your children, you may disagree about what that means. Taking your child’s wishes regarding custody into consideration may help you come to an agreement with your former partner. 

If you cannot come to an amicable agreement, the court will step in to craft a parenting plan for you, and the judge will consult your child during this process. Depending on their age, their preferences may have a significant impact on the final agreement. 

Whether you know you and your child’s other parent are ready to negotiate a child custody agreement, or you fear a judge will make the final decision in your case, Attorney Bob Matteucci is here to help. He will put the best interest of your child first, and help you move forward as a family. Contact the Matteucci Family Law Firm today to schedule a meeting.