How To Get Kindship/Guardianship In New Mexico

In New Mexico, there are several ways for you to get guardianship of the child in your life. There are a variety of reasons you may wish to get guardianship, whether the child is facing abuse or neglect or their current caretakers are unfit or unable to provide them with the care and stability they need, you may be called upon the take on those responsibilities. This article will discuss the basics of kinship/guardianship in New Mexico and under what circumstances it is appropriate. 

Guardianship Book and Kids painting with glasses. NM Guardianship

Requirements for Guardianship in New Mexico 

There are two types of guardianship in New Mexico. One where the state already has legal custody and one where the child is in their parent’s or another private individual’s custody. If the State has custody,  the State must consent to the appointment of the guardian. Thus, obtaining guardianship through the courts is only possible in select situations. One common standard is if the child has resided in a person's home over ninety (90) consecutive days unaccompanied by their parent and not in the custody of the state, that is when a person can file a petition under the “New Mexico Kinship Guardian Act” to be assigned the legal guardian of that child. 


Non-Relative Guardianship Rights In New Mexico 

When seeking legal Guardianship, a person is required to have some relation with the minor child and must be able to show that they can provide a safe and sustainable household, but does not necessarily have to be related to the child while doing so. In New Mexico, the law prefers the child to stay within their family or with the legal parents. If the parents cannot provide care, appropriate supervision, and guidance, then a guardian can apply. Once the Kinship-Guardian act is in place all the parent's responsibilities concerning the child and the child’s freedoms are then transferred onto the new legal guardian. After the transfer of rights and responsibilities, the court can now ask the parents to provide child support payments to the new guardian. The court may also appoint an attorney to the child in the case, also know as a Guardian Ad Litem (GAL). 


Grandparent and Great-Grandparent guardianship 

Grandparent guardianship in not uncommon in New Mexico. In Bernalillo County New Mexico, Grandparents and Great Grandparents are considered to be Loco Parentis- “in place of a parent” and they are granted visitation rights if they can meet the requirements of a parenting plan, come up with a schedule with dates and times that works with both parties and is meeting with the child or children on account of the child’s best interest. They must fill out a verified petition and bring it to the county which the child is residing in. Grandparents can must also have visitation rights if:

  • The legal parents of the child are in the process of divorcing in New Mexico. 
  • The legal parents are not in fact married during the time the petition was signed. 
  • One of the legal parents has passed away or has been missing for a minimum of ninety days, or three months. 
  • The Court finds that it would be in the child’s best interests 

Grandparents can also petition the court for kinship guardianship if the parents are unwilling or unable to properly care for the child and that inability can be proven. 

Guardianship contested 

Becoming a Guardian can be a smooth process but things get more complicated when one or both of the legal parents try to fight for their child to stay with them. The contested case will then go to Children's court usually hearing the proceedings of neglect, or abuse.  That is when the state comes in and overlooks the child’s case. The other aspects that can make the guardianship transition more complicated can have to do with if the child is a part of a Native American tribe and or, if the child is disabled. When these exceptions arise, the best thing to do at that point is to talk with a local New Mexico Family Law attorney to see what can be done for the specifics of the case and what avenues of law can be examined.

You can chat with someone now using our live chat function or you can reach us at (505)-317-4455 to set up your consultation with Albuquerque's premier divorce, custody and guardianship attorneys. 

Anthony Spratley
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Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond