How Kinship Custody and Guardianship Work From a Legal Perspective

Generally, the biological parents of a minor child are legally responsible for the child’s care. If the child’s parents are unable or unwilling to provide that care, another adult may need to step in and become the child’s legal guardian. Guardianship may also be necessary for a disabled or incapacitated adult who is unable to make decisions or manage finances.

New Mexico Kinship Law

In the State of New Mexico, guardianship over a minor is usually governed by the New Mexico Kinship Guardian Act. 40-10B-2(A) of the New Mexico Kinship Guardian Act says:

“It is the policy of the state that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers.”

Commonly referred to as kinship custody, a legal guardian appointed through the Kinship Guardian Act has similar rights and responsibilities as the child’s biological parent would have. For example, a kinship legal guardian (KLG) may have the legal right to make decisions about the child’s day-to-day care, consent to medical treatment, decide where the child will attend school, and apply for government services on the child’s behalf. Although birth parents no longer have legal custody of a child once someone else has been granted KLG status, the parent’s parental rights are not terminated. Consequently, the birth parents may be ordered to pay child support for the child and may be entitled to visitation with the child if visitation is granted by the court.

Who Can Be a Kinship Legal Guardian?

The New Mexico Kinship Guardian Act specifies who is eligible to petition for guardianship of a minor child. According to that Act, the following people are eligible to become a KLG:

  • A kinship caregiver. “Kinship” is defined as “the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s tribe or clan or an adult with whom the child has a significant bond.”
  • A caregiver, who has reached his twenty-first birthday, with whom no kinship with the child exists, who has been nominated to be the guardian of the child by the child, and the child has reached his fourteenth birthday.
  • A caregiver designated formally or informally by a parent in writing if the designation indicates on its face that the parent signing understands:
    • The purpose and effect of the guardianship
    • That he has the right to be served with the petition and notices of hearings in the action
    • That he may appear in court to contest the guardianship.

How Do I Become a Kinship Legal Guardian?

Kinship custody and guardianship attorneys in New Mexico.

You must file a petition with the appropriate court if you are seeking KLG status over a minor child in New Mexico. The petition must contain specific information as outlined in the Kinship Guardian Act. Petitioning the court is required even if the child’s parents agree to your guardianship; however, if the parents do consent you should attach a sworn statement from them acknowledging that consent to your petition. Either way, the child’s parents must be served notice that you have filed for guardianship. You will need to submit to a criminal background investigation and the court may order a home study to make sure that you can provide a safe and stable home for the child. At a hearing, the court may also question you regarding your relationship with the child to establish that appointing you as the child’s guardian is in the child’s best interests. Ultimately, the court will approve or deny your petition. If approved, you may be appointed as the child’s temporary or permanent guardian. Although you are not legally required to work with a guardianship lawyer when you petition for KLG status, attorney guardianship proceedings are less stressful and have an increased likelihood of a successful outcome.

Guardianship of a Disabled or Incapacitated Adult in New Mexico

The law operates under the assumption that once an individual reaches the age of majority (18) that the individual is capable of making decisions and caring for himself/herself. In fact, personal autonomy is considered a fundamental right in the United States. Sometimes, however, an adult is unable to make decisions or safely complete daily tasks because of a disability or mental incapacity. When that is the case, a legal guardian may need to be appointed for the protected person.

Types of Guardianship in New Mexico

Adult guardianship operates much the same way as guardianship over a minor; however, because adults are presumed to be capable of making their own decisions and taking care of themselves, an adult guardianship often has limits unlike guardianship over a minor child. New Mexico recognizes four types of adult guardianship, including:

  • Mental Health Treatment Guardian. Grants the guardian authority to make substituted decisions regarding mental health treatment (including psychotropic medications) for individuals determined by the court to lack the capacity to provide informed consent, for a specified period of time not to exceed one year.
  • Temporary Guardian. May be granted when a petition for guardianship has been filed alleging that immediate and irreparable harm will result to the alleged incapacitated person. Temporary guardianship cannot last more than 60 days.
  • Limited Guardian. Grants limited authority and decision-making when a court decides the protected person can manage some but not all aspects of their personal care.
  • Full or Plenary Guardian. Grants all legal rights and powers of the protected person to the guardian.

How Do I Become the Guardian of an Adult?

The process by which a guardian is appointed for an adult is similar to that of a minor child. A petition must be filed with the appropriate court and both the alleged disabled/incapacitated adult and certain family members must be provided with notice that the petition has been filed. When considering a petition for adult guardianship the court must use the least restrictive means available, meaning a court will not grant full guardianship without convincing evidence that it is necessary to protect the individual. Meeting this high legal standard can be challenging which is why it is always best to work with an experienced guardianship attorney if you wish to obtain guardianship over an adult.