In most cases, children are raised by their biological parents, who retain responsibility for their care and well-being until they reach adulthood. However, there are some instances when kinship custody must be enacted, either for the safety of the child or to provide support for the parent(s). In New Mexico, the guardianship of a child is determined by the New Mexico Guardian Act, which states that while New Mexico prefers for children to remain with their biological parents, there are situations in which this is not possible or advisable. In these cases, another person should be appointed to raise the child.
How Kinship Custody Works
When a new legal guardian is appointed via the Kinship Guardian Act, that person takes on the role of parent, which includes day-to-day parental responsibilities for the child and becomes responsible for their health, well-being, and educational needs. They will be entitled to consent to any medical treatment that is necessary for the health of the child and may apply for government services on their behalf. In some cases, the biological parents may be ordered to pay child support to the kinship guardian and may visit their child only if the court grants visitation rights.
Kinship custody is usually requested by one of the child’s relatives, such as a grandparent, aunt, uncle or, in some cases, godparent. However alternative, unrelated, caregivers will be considered. When a child is over the age of 14, they may nominate their own caregiver, provided that the chosen caregiver is at least 21 years old. A child’s biological parents can also designate a caregiver to assume all kinship responsibilities.
When a kinship caregiver is appointed, they need to prepare and file legal paperwork in order to accept these responsibilities. They must confirm that they understand the purpose and effect of the guardianship agreement, that they may be required to appear in court with respect to the guardianship arrangement, and that they could be served with a petition or notice of hearings.
How to Apply for Kinship Custody
If you have concerns about a child and wish to take on kinship guardianship of them to safeguard them, you will need to file a petition with the appropriate court outlining why you wish to assume guardianship. In the case you’re unfamiliar with this field of law and the responsibilities it entails, you should enlist the services of a lawyer who is experienced with kinship custody law in New Mexico to support you in putting together an appropriately structured case.
You will need to serve notice to the child’s biological parents to inform them that you have applied for guardianship. You may then be subjected to a criminal background investigation and potentially a home study to ensure that you are capable of providing a stable and safe home for the child, or children, in question. The court will also ask a number of questions to establish whether appointing a new legal guardian for the child is in the child’s best interests and will consider all the information supplied in the decision making process.
Assigning a Guardian in Your Will
A seperate but related issue is assigning a guardian through your will. Although you may have no intention of ever seeing your children leave your care, if you are writing a will and have children under the age of 18, it’s sensible to consider who would care for them if you were to pass before your child becomes an adult. If you are divorced, your ex partner will usually assume full parental responsibilities without the need for legal intervention, depending on which parent has custody rights.
If you and the other parent are not married, the other parent is absent or you have raised your children on your own from birth, you should consider appointing a guardian for them. You may choose anyone who you feel would be up to the task to care for your child in your absence. You should always ensure that careful consideration is given to this scenario for obvious reasons.
Whether you are preparing for the future, unable to care for your children, or wish to assume responsibilities for someone else’s children, the New Mexico Kinship Guardianship Act may provide some direction. If you need legal support, the Law Office of Dorene A. Kuffer is here to help you. Our team is experienced, compassionate, understanding and can help you navigate the kinship custody process. Contact us to get started today.