Guardianships in New Mexico

At our law firm, we understand the importance of keeping families together, and that includes ensuring children are raised by their parents whenever possible. However, we also recognize that there are situations where a child may need to be placed in the care of a family member or kinship caregiver for their well-being. That's where the Kinship Guardianship Act comes into play.

The Kinship Guardianship Act, found in Section 40-10B-1 of the New Mexico Statutes Annotated, is designed to help children who have been left in the care of another for 90 consecutive days without appropriate care, guidance, or supervision. Under this act, a person who meets the qualifications can file a petition to be appointed as the child's guardian. A hearing will be held, and a guardian may be appointed if:

1. A living parent has given written consent to the appointment and has not withdrawn it;

2. A living parent's rights have been terminated or suspended by a court order; or

3. The child has lived with the petitioner for 90 days or more without a parent present, and the parent with legal custody is unwilling or unable to provide adequate care or there are extraordinary circumstances.

The burden of proof is by clear and convincing evidence, and for cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, the burden of proof is proof beyond a reasonable doubt.

As part of the judgment entered under the Kinship Guardianship Act, the court may order a parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay. The court may also use child support guidelines to calculate a reasonable payment.

It's important to note that the Uniform Probate Code also has provisions for appointing a guardian for minors, but this is limited to situations where all parental rights of custody have been terminated or suspended by circumstances or court order. This statute has been narrowly interpreted by the courts, and in contested guardianship proceedings, the Kinship Guardianship Act is typically used or the case is heard in Children's Court on abuse/neglect grounds.

If you need assistance with a guardianship matter, our experienced family law attorneys are here to help. Contact us today to schedule a consultation.

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