Rules Regarding Parental Fitness in New Mexico Kinship Guardianship

The New Mexico Kinship Guardianship Act (“the Act”) establishes a legal procedure that protects the relationship between a child and what is known as a kinship caregiver. Under the Act, a kinship caregiver is an adult who has been caring for a child as a parent would, but who is not the child‘s parent.

A kinship caregiver may be a family member, but does not have to be related to the child if that person has provided consistent care, maintenance and supervision of the child. The Act allows kinship caregivers to be appointed as legal guardians so that child they care for can have a safe and stable home.

Under the Act, a kinship caregiver may petition to be appointed as the guardian of a child when the child has lived with the kinship caregiver for more than 90 days, without either parent. The kinship caregiver must then show the court that the child‘s parents consent to the guardianship or that the parents are unwilling or unable to care for the child.

The New Mexico Supreme Court recently overturned a New Mexico Court of Appeals case involving the Act. In the case of Freedom C. v. Patrick D., the Court addressed a very specific portion of the Act that applies when one or both parents refuse to consent to the appointment of a kinship guardian.

The central issue before the Court in Freedom C. was whether both parents have to be deemed unfit and unwilling to care for a child before a kinship guardian can be appointed, or if a kinship guardianship is appropriate as long as each parent is either unfit or unwilling. The Supreme Court concluded that the legislature intended that each parent must meet only one of the requirements regardless of whether each parent meets the same requirement.

In Freedom C., the mother consented to the grandparents being appointed as the kinship guardians of her child. However, the father objected to the appointment. Prior the filing of the petition for kinship guardianship, the mother and the child resided with the grandparents for more than 90 days, but the father did not. Also prior to the filing of the petition for kinship guardianship, the grandparents were granted temporary custody of the child, but the parents were provided with visitation privileges.

The Court concluded that both parents satisfied the requirements of the Act because the father did not reside with the child during the 90 day period when the grandparents petitioned for guardianship and both parents were either unable or unwilling to adequately care for the children.

Pursuing a kinship guardianship can be similar to a traditional custody action in that the court is always concerned about reaching a decision that is in the best interest of the child. However, as Freedom C. shows, the procedural requirements for a kinship guardianship are very specific and can differ from those that apply in more typical custody disputes.

Anyone considering pursing a kinship guardianship action should consult with a family law attorney as soon as possible to ensure that they meet the initial requirements of the Act and to discuss how to successfully pursue a kinship guardianship claim.


Related Reading:
Extended Family Members Have Few Rights Over Children
Acquiring Third Party Child Custody in New Mexico
Petitioning for Guardianship Under New Mexico‘s Kinship Guardianship Act

Collins & Collins, P.C.
Albuquerque Attorneys

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