Kinship guardianship is a separate section of custody law in New Mexico that’s used when neither parent has custody of the child. Kinship guardianship allows a family caregiver, often a grandparent or aunt/uncle, to gain custody of a child when the parents are either unwilling or unable to care for the child.
To start a kinship guardianship case, you will need to file a petition, just like in any other custody case. The kinship guardianship statutes, NMSA §40-10B-1 et. sec., specify what specific information must be listed in the petition. For example, you must state your relationship to the child, the address of both yourself and the child, the addresses and names of the parents, and why you are seeking kinship guardianship.
Additionally, the parents must either consent to the kinship guardianship or you must be able to prove that they are unwilling or unable to provide adequate care, maintenance, and supervision for the child, and the child has lived with you for ninety days prior to filing the petition. If parents object to the appointment of a kinship guardian, the court must appoint a Guardian ad Litem to act in the child’s best interest and make recommendations for custody to the court.
Kinship guardianship often arises because one parent is deceased, or the parents are struggling with an addiction problem. Being appointed the kinship guardian of a child gives you all the legal rights of a parent to the child, except the ability to consent to the adoption of the child. It allows you to enroll the child in school, add the child to your health insurance, and make all decisions regarding the child’s day-to-day life. The guardian can also determine what contact if any, the child should have with the parents.
Any person, including a child who has reached their fourteenth birthday, may file for revocation of the guardianship. If the revocation is contested, and either the guardian or parent does not agree that the guardianship should be terminated, the court must again appoint a Guardian ad Litem to investigate if it’s in the child’s best interest to return to the parents. If the Guardian ad Litem recommends that guardianship terminates, a transition plan must be created to facilitate the reintegration of the child into the home of a parent or new guardian. Revoking a guardianship is a huge burden, as is being appointed a guardian of a child.
In summary, kinship guardianship is a useful mechanism when a family member is caring for a child and the parents are unable or unwilling to provide appropriate care. It allows the family member to become the legal guardian of the child and grants them the power to make decisions regarding their day-to-day life and care.
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