Albuquerque Divorce Lawyer Blog

There is a perception that when a divorce or other contested child custody situation, the children involved can automatically decide which parent they would like to live with if they are 14 years or older. This perception may not be entirely accurate, as the court will take into account many factors beyond the desires of the child.

In some cases, a judge may not be particularly persuaded by the desires of a child older than 14 due to immaturity, the fitness of the parents, the environment of the child's desired home and numerous other factors depending upon the situation. Likewise, the family court judge may consider the desires of a child younger than 14 based upon many of the same factors.

There are many reasons why this issue is not clear cut. To begin with, New Mexico courts are guided by a "best interests of the child" standard when evaluating child custody. While the goal of this standard is to provide for the child's needs in the best way possible, this standard is somewhat ambiguous and thus subject to varying interpretations.

Typically under the "best interests" standard, the judge considers the child's age, the relationship he or she has with both parents, the living conditions of both parents, the willingness of both parents to support a relationship with the child and the other parent, the relationship that each parent had with the child before the divorce, the fitness of the respective parents and finally the child's preferences.

More weight may be given to a child who demonstrates more maturity, but this is not guaranteed. Instead, a judge may examine the reasoning behind the child's desires, as in an instance where a child speaks of how much they are needed by one parent. Custody would certainly be challenged if the child appears to be more of a parent than the parent requesting custody. They may also call into question situations where the child has been promised certain gifts or rewards for choosing one parent over another, or where the child may prefer the parent who makes more money.

Perhaps most common of all, a teenage child may prefer the household with the least supervision and the most freedom. The courts are very reluctant to place a child in an unsupervised setting despite the attraction that this may hold for teenage child.

Ultimately, even the most articulate and perceptive child is still considered a minor by law. They cannot make legally binding decisions. So, while the courts may consider the wishes of children in child custody cases, it will probably not be the deciding factor. The courts simply will not rely entirely on a child to decide what is or is not in the child's best interests.

Collins & Collins, P.C.
Albuquerque Attorneys

Most teenagers want to be treated like adults long before they reach the legal age of majority, which in New Mexico is eighteen (18). However, in some circumstances, a minor may become emancipated before they turn eighteen (18), which means that in the eyes of the law the child is now an adult.

In New Mexico, minors can become emancipated once they reach the age of sixteen and meets one of the following criteria: 1) he or she has entered into a valid marriage; 2) he or she is on active duty in the armed forces; or 3) he or she has been declared emancipated by a court in accordance with the Emancipation of Minors Act ("EMA").

Generally, a person must be eighteen (18) years old before they can obtain a marriage license in New Mexico, although they can be sixteen (16) with parental consent or younger with an order from the Children's Court. Similarly, a person must be eighteen (18) to enlist in the military or may be seventeen (17) if they have parental consent.

The rules regarding emancipation by marriage or military service are fairly straight forward. However, the EMA is not as clear. Instead it requires that a minor seeking emancipation be willingly living separate and apart from his or her parents or guardian, that the child is managing his or her own financial affairs and that the Court finds that emancipation is in the child's best interest.

As is true with many issues in family law, what is in a child's best interest can vary depending on who you ask, although what really matters in the end is what the Court determines to be in the child's best interest. Given the Court's discretion to determine the best interest of the child in EMA cases, it is important for any person involved in an emancipation case to consult a family law attorney to help guide them through the complicated issue of emancipation under the statute.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico statute governing the dissolution of marriage (divorce) lists four reasons that can be given to the court as grounds for divorce: 1) incompatibility; 2) cruel and inhuman treatment; 3) adultery; and, 4) abandonment.

Practically speaking, the vast majority of divorces in New Mexico are granted on the basis of incompatibility, which is known as a "no-fault" divorce. The policy of no-fault divorce has been a part of New Mexico law for more than sixty years and is so strongly favored by the courts that the other three grounds are rarely used anymore.

Even if one of those grounds is used as a basis for a divorce petition, the court will often not investigate that claim. Instead the court will recognize that the parties are incompatible and move on to the parties' debts and assets and addressing issues of custody and support.

This means that parties to a divorce in New Mexico will generally not have to spend time (and the associated attorney's fees and costs) proving that the other party committed adultery, behaved cruelly or is otherwise a bad person because the courts will deem that information irrelevant.

Often the no-fault policy can be hard for parties to a divorce to accept. This is especially so in cases where there has been adultery or cruel treatment by a spouse during the marriage. There is no shortage of animosity associated with financial affairs as well. Far too often, parties go into the divorce with the intention and the need to prove the other party is at fault. Sometimes, they simply will not be content until they have shown the court that the other party is simply a bad person.

In fact, the spouse may be a bad person guilty of all kinds of bad and sometimes atrocious behavior. Unfortunately, this behavior is with rare exceptions irrelevant to the divorce and the division of property and debt. It may or may not be relevant to child custody and time-sharing. Even when it is not, there are many occasions when the battlefront is shifted to the children. Child custody and time-sharing disputes will often to the great detriment of the parties, and especially the children, serve purely to punish the other spouse for the misdeeds during the marriage.

Consulting with an experienced divorce attorney can help parties focus on the relevant facts and applicable law, so that they can get through the divorce process efficiently and get on with their lives. In the absence of domestic violence, domestic abuse, child abuse, or child neglect, battles for moral superiority have no place in a divorce action. No-fault divorce has grown over time with the knowledge that the fault based divorces were often devastating to the parties and the children. The courts of New Mexico have made clear that allegations of fault will no longer be entertained.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico parents involved in a divorce or child custody dispute should pay attention to the results of a recent study from the University of Toronto. The study shows the long term affects that divorce can have on children.

The research, which was published by the Journal Psychiatry Research, showed that adults from divorced families were more likely to have had suicidal thoughts at some point in their lives than those from non-divorced families. The results showed that men from divorced families were more likely to experience suicidal thoughts than women.

The study further found that factors such as physical abuse, emotional abuse, parental unemployment and parental addiction could also influence the occurrence of suicidal thoughts.

Many of these issues are commonly present in New Mexico divorces. Parents should be aware of these risk factors. When they are present, they should be even more vigilant in protecting the children from the effects of divorce. Some of the risk factors may be difficult to avoid such as unemployment. The others are either within the control of the parents or a phone call away from help in dealing with these issues.

Obviously, this study shouldn't cause all parents contemplating divorce, or who are already divorced, to panic. However, it should remind all parents that their focus during a divorce or custody dispute should be on their children and protecting their children's best interests.

The New Mexico courts will often order the parties in domestic relations cases to participate in counseling or co-parenting classes, but that may not be enough. A counselor cannot monitor parents 24 hours a day. Neither can the Courts. It is up to the parents to minimize the negative effects divorce will have on the children.

Keep in mind that even the most amicable divorce leaves lasting scars on a child. Just imagine what a high conflict divorce and child custody action will do to a child. Both actions and words have lasting consequences. This is never more true than in a divorce action.

Collins & Collins, P.C.
Albuquerque Attorneys