Does a child live in your home, and you are wondering how to get guardianship in New Mexico & win your case? If so, it is first important to understand how the Kinship Guardianship Act applies to your unique situation.
The first step towards requesting guardianship in New Mexico is filing a Petition in the county where you and the minor child live. For instance, guardians that are living in Albuquerque should file/open the guardianship case in Second Judicial District Court.
Will the child’s parents agree to the proposed guardianship? If the child’s parents agree then you will need to complete and file the Consent to Appointment of Guardian.
Are the child’s parents fighting the guardianship? If so, all is not lost. The court will examine both parents’ ability to care for the child, and the child’s best interests, when guardianship is contested. Guardianship cases are usually resolved in three ways when the guardianship is contested:
- Guardianship is denied because the court either lacks standing (power), or because the requested guardianship is not in the child’s best interests;
- Temporary guardianship is granted for 180 days or less and a GAL becomes involved with the case to make recommendations on the child’s best interests; or
- Permanent guardianship is granted until revoked.
Here are some tips on how to get guardianship and win your case in New Mexico.
DEMONSTRATE STABLITY AND YOUR ABILITY TO CARE FOR THE CHILD
It’s hard to argue that the child’s parents are unfit to care for the child when you are also incapable of caring for the child.
When seeking guardianship, demonstrate your history of stability, consistency, and ability to care for the child. Avoid any red flags that will cause concern about your ability to care for the child in your home.
Consider demonstrating the following:
- Your relationship and bonding with the child;
- Your safe and stable home that does not have:
Guardianship centers on the child’s best interests. When the child’s parents are unwilling or unable to properly care for the child – the assigned judge wants to know that the child is best served by being in your care and home.
Don’t give your assigned judge any reason to doubt your ability to provide the child with care, safety, and maintenance.
HAVE THE CHILD LIVE IN YOUR HOME FOR 90 CONSECUTIVE DAYS BEFORE FILING
Some judges believe that a child must live in your home for 90 consecutive days before the court has power to grant guardianship. With that said, some guardianship cases are so extreme that the court can find “extraordinary circumstances” and grant temporary guardianship even when the child has not lived in the proposed guardian’s home for 90 consecutive days.
Extraordinary circumstances can de demonstrated when a parent is unable or unwilling to care for a child due to:
- Substance abuse issues;
- Domestic violence issues;
- Mental Health Issues; or
- Any issue that prevents the parents from caring for the child.
In cases where a parent poses an immediate threat of danger to the child, the court can grant an ex parte order (order without a hearing).
MAKE SURE THAT THE CHILD HAS LIVED IN YOUR HOME WITHOUT A PARENT
New Mexico guardianship law requires the child to live in the proposed guardian’s home – without a parent – for 90 days or more before the petition is filed.
The court may find that the proposed guardian lacks the legal power to request guardianship if the child’s parent has lived in the home during the 90 days before the request is filed. To strengthen your guardianship case, ensure that the child lives in your home for 90 days, without the parent also living in your home.
GUARDIANSHIP CANNOT REMOVE CHILDREN FROM A PARENT’S HOME
It is important to note that the child must be in the proposed guardian’s home before a case is opened.
The kinship guardianship act does not authorize the court or law enforcement to remove a child from a parent’s home. If the child is still in the parent’s home, CYFD will need to move forward with abuse and neglect proceedings to remove the child.
Even when extraordinary circumstances are present – and the parent is unfit to care for the child – the child must be living in the proposed guardian’s home when the guardianship case is opened/filed.
BOTH PARENTS MUST BE SERVED WITH LEGAL DOCUMENTS
Parents and other parties may be entitled to notice of the guardianship case that you have filed. The Petition and Notice of Hearing must be served upon:
- CYFD if there is any pending matter relating to the child;
- The child, if the child has reached the age of fourteen;
- Both parents of the child;
- A person having custody of the child or visitation rights by court order; and
- If the child is Indian born, then the tribe must be served.
Failing to properly serve any of the necessary parties could result in the guardianship case either being continued or dismissed.
(505) SANCHEZ HELPS YOU UNDERSTAND HOW TO GET GUARDIANSHIP IN NEW MEXICO & WIN YOUR CASE
Guardianship gives you the rights and responsibilities of a parent. For over a decade, Matthew Sanchez has handled guardianship cases all across New Mexico, including: Albuquerque, Rio Rancho, Santa Fe, Los Lunas/Belen, Estancia/Socorro, Taos/Raton. Talk to a tested and trusted guardianship attorney. Talk to (505) SANCHEZ.
