In this day and age where there are more step parents, grandparents and even family members who are caring for children the law must address the custody rights of third parties. A common situation is this: a grandparent takes care of a child because the parents have severe drug problems and cannot care for the child. When the grandparents go to court, however, they are faced with the fact that they do not have the same sort of standing as a biological parent.
New Mexico recognizes the parental rights doctrine. This means that the law assumes that a parent is the best fit for the child. We all know this isn’t always the case. So what is a third party to do when it comes to custody? Be aware that your burden is to show that the parent is unwilling or unable to care for the child and that the parent is unfit or there are extraordinary circumstances that warrant the third party having custody.
The best way to handle this is usually through a guardianship case and not an outright custody fight. Be on alert, however, that you cannot merely argue that it’s in the best interests of the child to be with the third party. There must be more! That is the difficulty when fighting for custody over a biological parent.