There is a common misconception that adoption and guardianship are basically the same thing or at least very similar, and the two indeed are similar. However many differences set them apart from each other. The biggest difference between the two is that adoption is permanent and guardianship is temporary. Also, in a guardianship case, the parents still have rights over the child, but parental rights are terminated in an adoption. Both adoption and guardianship of a child require special circumstances, specific requirements, and special procedures that typically differ from one to the other. However, in New Mexico, the processes and rights for adoption and guardianship vary quite a bit. There are multiple ways to go through the adoption process and as well as guardianship, and those will be explained later in the article. The requirements for adoption and guardianship are different although they are complex for each case. There is no “right” way to adopt or become a guardian, and because each case consists of its specific circumstances, each process varies in its complexity. Crucial topics such as legal rights, biological parents, public benefits, and successorship are important to keep in mind during the process of becoming a guardian or adoptive parent.
Are The Processes Different in New Mexico?
The process to adopt a child is much different than the process to become a guardian of a child. Being that adoption is permanent, there are many more steps to take to become eligible to adopt and the process is longer. Although there is not a singular best way to become an adoptive parent, below you can find a general outline of what steps to take if you are looking to adopt:
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Attend your local foster/adoption information meeting.
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Complete an application and provide personal references.
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Schedule and complete a background check to get your fingerprints taken.
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Attend 32 hours of required pre-service training.
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A home study must be completed and approved by the Children, Youth, and Families Department of the State of New Mexico. (This procedure will include interviews with members of your household and are used to define your strengths as a family).
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You will also be asked to have a medical exam completed by your physician to ensure that you are healthy
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Submit additional documents.
If you are licensed through the Children, Youth, and Families Department (CYFD), adopting a child is free. You may also receive financial support and other resources to aid during and after the adoption process.
The process to become a guardian is not simple yet it is less difficult than applying to be an adoptive parent. Again, each circumstance is different therefore the application process may vary from case to case but below you will find a general overview of the guardianship process if you are applying under the Kinship Guardian Act:
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You'll first need to file a petition for guardianship with the district court where you and the minor reside. (You must file this petition even if their parents agree you should become the child’s guardian).
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A full investigation is conducted to determine if you're a competent guardian and if your guardianship is in the child's best interests. (This may include an examination of the home you can provide, any criminal history, job stability, and the type of relationship you have with the child or children. Based on the findings, the court then makes a ruling).
Note: Procedures for guardianship filing under the Uniform Probate Code or the Children’s Code are similar: a petition to the court, a competency investigation, and a court ruling.
Depending on the exact circumstances, the court may deny your petition for guardianship, grant temporary guardianship, or award permanent guardianship of the child.
What Rights Do Adoptive Parents and Guardians Have?
The rights of adoptive parents and temporary guardians are what set each other apart. This link is a great resource for reviewing the specific differences between adoption and guardianship.
How Do The Two Differ From Custody?
Although custody and guardianship are completely different, they are commonly mistaken for being the same thing. Custody refers to the parent’s care of a child, whereas guardianship refers to a person who assumes responsibility for a child. For example, parents may still have legal custody over their child even though the child is under the guardianship of someone else. In some cases, although there may be a custodial parent, the child’s guardian is the person who makes decisions for the child. With adoption, parental rights are terminated therefore the adoptive parent(s) have exclusive custody rights over the child.
Can Guardianship Turn Into Adoption?
The short answer is yes, a guardian may adopt the child that is in their care. Although the child has presumably been in the guardians' care already, the process for adoption is the same as if the child had not lived with their guardian before. Typically in a guardianship case where the child and guardian are related, the child welfare agency likes to opt for adoption so that the child has a permanent home because guardianship is not a permanent option as it can be contested at any point. A home inspection is typically done to determine where the child would be in a safe environment. The next step is for the legal parents to surrender their paternal rights. If the parents decline to do so then the courts may intervene and if they think that it is in the best interest of the child a judge may terminate the parental rights.
Is Guardianship Reversible?
Unlike adoption, guardianship is not permanent, therefore it may be reversed. Reasons for reversing guardianship may include the following:
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Guardian is no longer able or willing to carry out the duties of guardianship
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The guardianship expires on its own
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Legal parents want to regain custody of their child
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Child no longer seeks guardianship or believes guardian is not fulfilling their duties
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A third party believes the child is not taken care of due to abuse or neglect
The process to reverse guardianship is started with a petition to the court. Then the court revises the petition and sets a hearing. At the hearing, evidence and testimonies will be heard to help the judge determine the outcome of the petition.
How Can a NM Family Law Attorney Help You
At Genus Law Group we understand that family law is complex and sometimes confusing. If you or someone you know is dealing with a case involving custody, adoption, or guardianship, you may need to consult with a professional in the family law field. Our Albuquerque Family Law Attorneys will be more than happy to provide you with a consultation as to how best to achieve your goals. Feel free to contact us at 505-317-4455 or chat with a representative online.
