Life sometimes resembles the roller coaster at Cliff’s amusement park – a series of ups and downs. The ground seems impossibly far away and irrelevant when one is at the top of the roller coaster and eye level with the clouds. The good times seem like they will never end. Suddenly a dramatic shift occurs. The bottom drops out and one falls faster than a rock, with “up” transforming into a seemingly endless “down.”
At times people hit rock bottom and need family support to pick oneself back up. During these difficult times one might find themselves in need of a family member to care for one’s child or children. In New Mexico the Kinship Guardianship Act (“KGA”) allows a caregiver to assume the parental rights and responsibilities over a child when the parent is either unwilling or unable to provide appropriate care, guidance, and supervision.
The KGA is intended to provide children with a safe and stable household. The KGA provides a child’s family member, caregiver, or any adult with whom the child has a significant bond to Petition the court for guardianship over the child. A caregiver that is awarded guardianship over the child effectively steps into the parent’s shoes. The guardian assumes the parent’s legal rights and duties except the right to consent to the child’s adoption, or any other parental rights and duties that the biological parent retains by court order.
A caregiver can be named as a child’s kinship guardian in the following scenarios:
- The parents of the child are living and have consented in writing to the appointment of a guardian and the consent has not been withdrawn;
- The child’s parents are living but all parental rights regarding the child have been terminated or suspended; or
- The child has resided with the caregiver (“Petitioner”) without the parent for at least 90 days before the Petition is filed and the parent having legal custody of the child is either currently unwilling or unable to provide adequate care, maintenance and supervision for the child or extraordinary circumstances exist; and
- No guardian of the child is currently appointed according to the Uniform Probate Code.
See NMSA 1978, § 40-10B-8.
In any of the scenarios above, the process begins with the caregiver filing a Petition for Order Appointing Kinship Guardian. See NMSA 1978, § 40-10B-1. The Petition establishes key elements such as the parties involved, any relevant and pending matters such as a custody dispute, CYFD involvement, or abuse and neglect proceedings. The court reviews the Petition and then schedules an initial hearing to determine if one of the requisite elements is present. The court’s chief concern is whether it is in the child’s best interest for the proposed caregiver to be named as the child’s guardian.
Generally the smoothest path for one to become a child’s guardian is for the biological parent to consent — in writing — to the appointment (i.e. scenario number one above). This written consent is a notarized document and generally states that the biological parent understands that the purpose of the proposed guardianship is to establish a legal relationship between the proposed guardian and the child, so the child has a stable and consistent caregiver that enables the child to develop physically, mentally, and emotionally. The consent generally also states that the parent understands the legal process, signs the consent knowingly and voluntarily, waives the right to be served with the Petition and notices of hearings, voluntarily and unequivocally consents to the Petitioner serving as the child’s legal guardian, and it is in the child’s best interest for the Petitioner to be appointed as the child’s guardian.
The parent’s consent can also be established through verbal testimony during the initial hearing.
It is important to note that both parents must either provide the requisite consent, or the proposed guardian must demonstrate that one of the elements above applies to both parents.
Procedurally, both parents have a due process right to be served with a copy of the Petition and notice for subsequent hearings – unless both parents waive the right to be served with notice, as explained above. It is also important to note that unlike the New Mexico adoption laws, both parents must be served with the requisite notice – even when the parent is an “alleged parent” and has not been involved or present in the child’s life. Lastly, children over the age of fourteen are also entitled to notice.
In situations where the child’s parent(s) contest the proposed guardianship, the initial hearing will involve testimony regarding whether the proposed guardian can meet one of the requisite elements listed above. Assuming that one of the elements is established, the court will name the Petitioner as the child’s temporary guardian for a period not to exceed 180 days. In contested matters, the court also orders a Guardian Ad Litem (attorney representing the child) to get involved with the matter, and schedules a subsequent “merit’s hearing” to review the GAL’s recommendations, to determine if the temporary guardianship will become permanent. Before this merit’s hearing, the GAL conducts a diligent investigation of the circumstances surrounding the petition, including visiting the child in the home, interviewing the person proposed as guardian, and interviewing the child’s parents – if available. The GAL then testifies at the subsequent merit’s hearing with recommendations on whether the temporary guardianship should be extended beyond 180 days (i.e. if the guardianship should become permanent).
The term “permanent” is illusory and does not mean that the Petitioner will forever serve as the child’s guardian. After the Petitioner is granted “permanent” guardianship, such guardianship can be subsequently revoked if the parent is able to demonstrate that a material change in circumstances has taken place, and it is now in the child’s best interests to revoke the guardianship.
Lastly, in situations where the Petitioner is appointed as the child’s kinship guardian, the court may also order the child’s biological parent(s) to pay child support