We frequently receive inquiries from grandparents, aunts and uncles or other extended family who inquire about their ability to obtain guardianship of a minor child. While the New Mexico Kinship Guardianship Act does provide legal authorization and a process for a relative to obtain a guardianship of a child of a relative, there are certain requirements that must be satisfied to successfully obtain guardianship. We have provided an overview of the requirements imposed in this type of New Mexico Child Custody Dispute.
The first point that must be kept in mind is that the right of parents to raise their own children as they see fit is a highly protected right under the U.S. Constitution. The right to provide for the care and comfort of one’s own children is considered a “fundamental right” so the government may only intervene and infringe on this right with a compelling reason and must not adversely impact the rights of parents beyond what is necessary to obtain this compelling state interest. The public policy of New Mexico reflects these constitutional principles so it is presumed that it is in the best interest of children to be raised by their parents. Nonetheless, courts do grant guardianships to relatives under the Kinship Guardianship Act under certain circumstances.
Although the best interest of the child is the general standard for determining child custody disputes under New Mexico family law, this inquiry alone is not sufficient to trump parental rights protected by the Constitution. The standard for obtaining a guardianship under the Kinship Guardianship Act requires that the moving party satisfy a two part inquiry. The first prong of the test for guardianship under the act involves establishing at least one of the following:
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Both parents (assuming both parents are alive) must consent to the guardianship in writing; or
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The parental rights of the parents must have been legally terminated or suspended; or
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The minor child but not the child’s parents must have lived with the party seeking guardianship for the ninety days prior to filing for guardianship.
While a relative must satisfy one of these conditions to obtain a guardianship, this is only the first requirement that must be satisfied. The party seeking a guardianship in New Mexico must also establish that the parent(s) with legal custody of the minor child is unable or unwilling to provide satisfactory supervision and care to the minor child. This essentially amounts to showing a lack of parental fitness because of conduct like substance abuse, physical abuse, chronic neglect or abandonment. The law also provides that guardianship can be granted under this second prong of the test under “exceptional circumstances” that would provide a basis to terminate parental rights. If evidence is provided that a child may suffer severe emotional or physical harm or other serious detriment, this may form a basis for granting a guardianship. If a parent who is absent for three years or more, this also might constitute an exceptional circumstance, but this is not necessarily the case.
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The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.
If you have questions about obtaining custody or guardianship of a minor child, our experienced New Mexico Guardianship Lawyers have successfully represented many clients in guardianship actions. The Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your alternatives. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.
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