The Kinship Guardianship Act
It is the policy of the state of New Mexico that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers.
The Kinship Guardianship Act [40-10B-1 NMSA 1978] is intended to address those cases where a parent has left a child or children in the care of another for ninety consecutive days and that arrangement leaves the child or children without appropriate care, guidance or supervision.
When this has occurred, a person who qualifies under the Kinship Guardianship Act may file a petition asking to be appointed as the child’s guardian. After all parties have been served with the petition, the Court will hold a hearing. A guardian may be appointed pursuant to the Kinship Guardianship Act [40-10B-1 NMSA 1978] only if:
(1) a parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn;
(2) a parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order; or
(3) the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances; and
(4) no guardian of the child is currently appointed pursuant to a provision of the Uniform Probate Code [45-1-101 NMSA 1978].
The burden of proof shall be by clear and convincing evidence, except that in those cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, the burden of proof shall be proof beyond a reasonable doubt.
As part of a judgment entered pursuant to the Kinship Guardianship Act [40-10B-1 NMSA 1978], 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 use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.
The Court may also appoint a guardian ad litem (attorney for the child) during the course of these proceedings.
Guardianships Under the Uniform Probate Code
The Uniform Probate Code does have provisions for the appointment of a guardian for minors. The statute, however, is limited to those situations where all parental rights of custody have been terminated or suspended by circumstances or prior court order.
The Courts have interpreted this statute very narrowly, commenting that the Probate Code was not designed to resolve custody disputes. In most guardianship proceedings that are contested by the parent(s), the guardian will be proceeding under the Kinship Guardianship Act or the proceedings will be heard in Children’s Court on abuse/neglect grounds.