How to Get Legal Guardianship of a Child in Albuquerque, New Mexico

 

ALBUQUERQUE NEW MEXICO CHILD GUARDIANSHIP

 

The new normal has been dramatic change that is mixed with profound stress and uncertainty.

In some cases, the unparalleled stress and uncertainty of 2020 has left a friend or family member unable to care for a child.Possibly a parent that you know has experienced a stress-induced relapse and is currently unable to care for their child. Potentially the child has been left in your care for an extended period of time and you are searching for your legal options.

Now, more than ever, stability within a child’s home is an essential ingredient for a child’s overall well-being.

Caregivers often encounter three hurdles when caring for a child over an extended period:

• Problems with the child’s medical care or insurance coverage;
• Educational issues; or
• Fear of parents suddenly retrieving the child.

Caregiver Power of Attorney:

 

A Power of Attorney is a legal document that can grant an individual the legal authority to temporarily make decisions on a child’s behalf.  The Power of Attorney document is often used as a temporary Band-Aid for guardianship.

The benefits of a Power of Attorney include:

• The document can include a statement that the caregiver can make any and all decisions regarding the minor child, including medical and educational decisions.
• The document becomes effective instantly.
• Creating the document is relatively quick and easy.

The drawbacks of a Power of Attorney include:

• Easy come easy go. Although the document becomes effective instantly, it can also be revoked instantly.
• The biological parent can revoke the document and demand to retrieve the child.

What is Kinship Guardianship Act in New Mexico:

 

The Kinship Guardianship Act (KGA) creates procedures for establish legal guardianship between a child and caregiver, when the child is not living with either parent.  The KGA was created to provide children with a stable and consistent relationship with a caregiver that enables children to develop physically, mentally, and emotionally when the child’s parents are unable to do so.

Benefits of Guardianship vs. Power of Attorney:

 

• The KGA provides a clear and enforceable court order that the police can enforce, in situations where an unfit parent tries to retrieve the child.
• The child’s parent must take a sequence of legal steps to revoke Guardianship. These legal steps can take months — even years — whereas a Power of Attorney can be revoked in seconds.
• The Guardian steps into the parent’s shoes and has all legal rights, other than the right to consent to adoption.

Legal Guardianship of a Child Process:

 

The Kinship Guardianship process begins by filing a Petition for Order Appointing Kinship Guardian.

Any caregiver has standing (ability) to file the Petition, provided that the caregiver has a significant bond with the child.

The process becomes considerably more complicated when the child is an Indian child as defined by the federal Indian Child Welfare Act of 1978.  According to the Act: “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

The child’s Indian status can create jurisdictional issues (i.e. whether the Indian Tribe or State Court has the power to grant Guardianship).

The child’s Indian status also impacts the burden of proof that the proposed Guardian must bear to demonstrate that it is in the child’s best interests for the caregiver to be named as the child’s legal guardian.  Generally, the burden of proof for proposed Guardians is “clear and convincing evidence.”  Nevertheless, cases that involve Indian children have the highest burden of proof: “proof beyond a reasonable doubt.”  See Freedom C. v. Julie Ann D., 149 N.M. 588, 252 P.3d 812, 2011-NMCA-40.

Under the Kinship Guardianship Act, the Court may appoint a Guardian after a Hearing if:

1. The parent consents in writing;
2. The parent’s rights have been terminated or suspended by prior court order; or
3. The child has lived with the Petitioner, and without a parent, for 90 days or more and the parent with legal custody is currently unwilling or unable to care for the child or there are extraordinary circumstances; and
4. No guardian is currently appointed under the Probate Code.

After the Petition is filed, based on 1-4 above, the Petitioner/Caregiver can request (i.e. Motion the court) to be appointed as the child’s temporary guardian.  When this Motion is filed, the court must schedule a hearing within 20 days.  At this hearing, the court can grant temporary guardianship that either lasts for 180 days, or until the court can determine whether there is sufficient evidence for the Caregiver to be appointed as the child’s permanent guardian.

Ex Parte Order in Kinship Guardianship Cases:

 

In extreme cases, where “good cause” is shown, the Petitioner/Caregiver can request for an Ex Parte Order (i.e. an Order that is entered pending a formal Hearing).  When an Ex Parte Order is entered granting temporary guardianship, if a parent objects to the guardianship, the court must schedule a hearing within ten days from the date that the objection is filed.

First Hearing:

 

At the initial hearing, the court will address the issues above, namely whether the Petitioner/Caregiver can satisfy elements 1-4 that are outline above.

In situations where the parent(s) of the child have consented to the Guardianship, the Court will enter an Order naming the Petitioner/Caregiver as the child’s Kinship Guardian.

In situations where the parent is present at the hearing, and objects to the proposed guardianship, the Court will determine if the child has lived with the Petitioner/Caregiver for 90 consecutive days, without the parent, prior to the Petition being filed. The court also addresses whether the parent is unwilling or unable to care for the child.

More complicated cases involve situations where the parent objects and the child did not live with the Caregiver for 90 consecutive days. In these situations, the Caregiver must demonstrate that extraordinary circumstances are present.  The NM Supreme Court has said that extraordinary circumstances are: “ . . . [a catchall that] allow courts to ensure that the Act is applied in a manner that adheres to the spirt of the Act” because “cases that come under the Act often involve unconventional family structures and unconventional facts.” Patrick D., 2012-NMSC-017,¶ 29.

Extraordinary circumstances were explored in the New Mexico case, In the Matter of the Guardianship of Victoria R, 2009-NMCA-007, ¶ 16.  In the Victoria case, the court held that extraordinary circumstances were established based on a showing that the child was primarily bonded to the Petitioners, considered the Petitioners her parents, and would suffer significant depression if her relationship with Petitioners was abruptly terminated.

Assuming that the elements above are demonstrated, the court will enter an Order naming the Caregiver as the child’s temporary guardian. This temporary guardianship either lasts for 180 days, or until a final evidentiary hearing is held.

Guardian Ad Litem “GAL”:

 

The court must appoint a GAL when a parent participates and objects to the guardianship.  The GAL represents the child’s interests, completes an investigation, and makes recommendations regarding the child’s best interests.

The GAL generally becomes involved after the initial hearing.  The GAL’s investigation generally takes place during the 180 days after the initial hearing, while the temporary guardianship is in place.  The GAL often speaks with the parties, family members, reviews documents, speaks with counselors/teachers and other “collateral sources,” and conducts a home visit. The GAL uses all of this information to make recommendations regarding the child’s best interests.

Report Back Hearing on GAL’s Recommendations:

 

A report back hearing generally takes place within 180 days from the date of the initial hearing.  At this hearing, the court hears testimony, reviews the GAL’s Recommendations, and determines if the Caregiver has presented sufficient evidence that warrants the Caregiver being appointed as the child’s Kinship Guardian.

 

Kinship Guardian’s Rights and Duties:

 

A Petitioner/Caregiver that is appointed as the child’s Kinship Guardian has all of the legal rights and duties of a parent, expect the right to consent to adoption.  Moreover, the Guardian does not have the parental rights and duties that the court grants the parent – if any.  The Guardian can make all decisions regarding visitation/communication between a parent child – unless the court orders otherwise.

 

Revoking Kinship Guardianship:

 

The Kinship Guardianship may be revoked by Court Order.  Any person, including a child 14 years or older, may request to revoke the Kinship Guardianship.  The person requesting the revocation must attach a transition plan to the Motion for Revocation, which a plan that proposes to facilitate the reintegration of the child into the home of a parent or new guardian.

The parent attempting to revoke the Guardianship must prove, by a preponderance of the evidence, that a change in circumstances has taken place such that revoking Guardianship is in the child’s best interests.

 

(505) SANCHEZ IS HERE TO HELP WITH QUESTIONS ABOUT HOW TO GET LEGAL GUARDIANSHIP OF A CHILD IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions about how to establish legal guardianship of a child in Albuquerque, New Mexico?  Caregivers that are looking to establish legal guardianship often benefit from the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your unique guardianship case.  Sanchez can be reached by calling (505) SANCHEZ.