Guardianship

Guardianships come in various forms. In its most simplistic form, a guardianship provides someone who is not a parent to maintain custody and control over a minor child. There are also guardianships over incapacitated adults, but we will not focus on this type of guardianship in this article.

The most common type of guardianship in New Mexico is that regarding Kinship Guardians. There are other types of guardianships as well, including those that fall under abuse and neglect cases, those that fall under the probate code and the incapacitated persons mentioned above. For purposes of this article, a Kinship Guardianship would allow a third party, who is not a parent, to maintain custody and control over a child.

The reason for the guardianship statute is because of what is known in New Mexico as the Parental Rights Doctrine. This doctrine is outlined in statute as indicating that a third party who is not a parent cannot gain custody of a child without showing that the parents are unfit. This is a very high standard in New Mexico. To overcome this statutory reality with the real world realities the legislature enacted the Kinship Guardianship Act.

Under this statute, a third party can petition the court for guardianship if a child has lived with someone other than a parent for the past 90 days and the person petitioning meets the definition of a caregiver under the law. Both of these requirements have more challenges associated with them that need to be factored when applying for guardianship.

There are several procedural strategies to use when applying for guardianship like obtaining an ex parte order, or obtaining parental consent or relying on the appointment of child over the age of 14. The most common way a kinship guardianship arises occurs when a parent is unable to care for a child and then a caregiver cares for that child, such as a grandparent. Then, for the protection of a child, the court will appoint a guardian if the statutory factors weigh in favor of the guardianship.

That’s why it’s important to work with experts in custody matters like the Justice Legal Group. Contact us today at info@JusticeLegalGroup.com or call us at 505-880-8737 for more information on obtaining guardianships in New Mexico.