When parents are unable to care for their children because of substance abuse, child abuse or other parental fitness issues, a guardianship proceeding may be initiated by another family member or other caregiver depending on the specific circumstances. New Mexico has a specific statute that is designed to protect the relationship between a caregiver and a minor child. Although the statute has strict requirements that must be satisfied, the statute can be an effective way for a grandparent or other family member who has lived with the children to maintain his or her relationship with them.
The requirements and procedures involved in this process are set forth in the New Mexico Kinship Guardianship Act. While the party seeking guardianship under this provision will often be a family member who has taken care of a child in the same sense as a parent, a family relationship is not necessarily essential when seeking a guardianship under this provision. The policy behind the statute is to ensure that caregivers including grandparents may be authorized by the court to act as legal guardians to provide children with a stable, safe, and secure living situation.
The statute imposes specific requirements that include the following:
1. The applicant must have lived with the child without a parent for a duration of longer than ninety days;
2. The parents must consent or the parents must be unwilling or unable to care for their children.
A recent New Mexico Supreme Court decision clarified these requirements in reaching a result that makes it easier for a kinship guardianship application to be approved. In the case of Freedom C. v. Patrick D., the court of appeals had ruled that an applicant under the statute must show that both parents satisfy the conditions above.
In Freedom C., mom approved a kinship guardianship in favor of the maternal grandparents. While the children had resided without dad for ninety days, mom lived with the kids in the maternal grandmother’s home, so only dad satisfied this part of the test. Because mom consented to the guardianship, the court found that each parent was either unfit OR unable to take care of the kids was sufficient, rather than mandating that both qualify under the same criteria as the other parent.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
If you have questions about a guardianship of grandparent visitation in New Mexico, Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque during which we discuss your situation and answer your questions. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.