Kinship guardians are caregivers that step into a parent’s shoes, assuming full parental rights for the child in one’s care.
Caregivers can request to be appointed as a child’s kinship guardian in the following situations:
- The child’s parent(s) are living and have consented in writing to the guardianship;
- The parent is living but all parental rights have been terminated or suspended; or
- The child has lived with the Petitioner, without the parent, for a period of 90 days or more before the Petition is filed and the parent is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances; and
- No guardian is currently appointed.
The guardianship process beings when a caregiver files a Petition stating that one of the required elements above is present. New Mexico courts routinely dismiss Petitions for Guardianship when the caregiver lacks standing based on an inability to demonstrate one of the required elements above.
In situations where one of the elements above is present, a Motion to appoint a temporary guardian is generally filed in tandem with the Petition. A hearing must be held within 20 days of said Motion being filed.
Assuming that the proposed guardianship is contested and good cause is demonstrated, the court can enter an ex parte order appointing the Petitioner as a temporary guardian for up to 180 days. This ex parte Order is a temporary order that is entered without a formal hearing, based on extraordinary circumstances. According to New Mexico case law, extraordinary circumstances can be found when the biological parent is either unwilling or unable to provide the child with adequate care. See In re Guardianship of Victoria R., 145 N.M. 500, 201 P.3d 169.
Ex parte orders are routinely entered in Order of Protection cases (i.e. Restraining Orders), when a Temporary Order of Protection is entered without a hearing. This Temporary Order can be entered without a hearing when the Petition for Order of Protection establishes “probable cause” that an act of domestic abuse has occurred.
In relation to the Kinship Guardianship Act, when an ex parte order is entered granting temporary guardianship without a hearing, and an objection is subsequently filed, the court must set a hearing within 10 days of the objections being filed. Similarly, when an ex parte order is entered in the form of a Temporary Order of Protection, a hearing must be set within ten days from the date that the order is issued.
(505) SANCHEZ IS HERE TO ANSWER QUESTIONS ABOUT THE KINSHIP GUARDIANSHIP ACT AND EX PARTE ORDERS IN ALBUQUERQUE
Do you still have questions regarding paternity, parental rights, or custody in Albuquerque, New Mexico? Custody cases often require the experienced hand and knowledge that comes with years of courtroom practice. Matthew Legan Sanchez has the experience needed to handle your unique case. Sanchez can be reached by calling (505) SANCHEZ.
Kinship Guardianship Act and Ex Parte Orders in Albuquerque, New Mexico
