The Difference Between Guardianship and Child Custody in Albuquerque, New Mexico

 

Some words are used interchangeably.  Some people describe any soda as a “Coke.”  Depending on the sentence and context, calling something “bad” could be either positive or negative. Like “Coke” and “bad,” Guardianship and custody are distinct legal concepts but are often used interchangeably.

Despite their similarities, guardianship and child custody have significant differences. Let us uncover some of the legal differences between guardianship and child custody in Albuquerque, New Mexico.

WHAT’S THE DIFFERENCE BETWEEN GUARDIANSHIP AND CUSTODY IN ALBUQUERQUE, NEW MEXICO?

 

Guardianship is a legal relationship between a child and family member or someone with whom the child has a close relationship.  Guardianship does not apply to parents. Custody is a legal relationship between a parent and child that is based on parentage.

 

WHAT ARE THE LEGAL DIFFERENCES BETWEEN GUARDIANSHIP AND CUSTODY IN NEW MEXICO?

 

Guardianship can be granted to a family member, or someone bonded to the child.  Guardianship is generally requested and granted under the Kinship Guardianship Act.  Guardianship is like custody because a guardian can step into a parent’s shoes and assume parental rights and responsibilities.  These rights or responsibilities can be limited by court.

Unlike child custody, guardianship is temporary in nature and subject to revocation.  Guardianship is granted by a NM court and can be modified or terminated by a New Mexico court.  With that said, once granted, guardianship can potentially extend until the child turns 18 or is otherwise emancipated.  If a Motion to Revoke Guardianship is never filed, the guardianship will extend indefinitely.

Custody is determined by parentage.  There are two forms of custody: Legal Custody and Physical Custody.  Legal custody means the right to make decisions on behalf of the child regarding religion, education, medical, school, extra-curricular activities.

Physical custody means the time the child spends with each parent.

 

WHAT ARE THE SIMILARITIES BETWEEN GUARDIANSHIP AND CHILD CUSTODY IN ALBUQUERQUE, NM?

 

Guardianship and child custody both involve rights and responsibilities for a child.  With guardianship, these rights and responsibilities are appointed when the proposed guardian has a legal basis to request guardianship, based on:

• The child’s parents consent to the guardianship in writing;
• Parental rights have been suspended or terminated;
• The child has lived with the proposed guardian for 90 consecutive days before the request is made; and
• Parents are currently unfit to care for the child or there are extraordinary circumstances.

Child custody also involves parental rights and responsibilities for a child. Parental responsibilities such as child support are based on Albuquerque,NM child support guidelines.  Parental rights such as custody and timesharing are based on the child’s best interests.

 

HOW DO YOU ESTABLISH GUARDIANSHIP IN NEW MEXICO?

 

Guardianship is generally established by filing a Petition for Kinship Guardianship.  This Petition will need to demonstrate a legal basis for requesting guardianship.

 

HOW DO YOU ESTABLISH CUSTODY IN NM?

 

Custody can be established by filing a Petition to Establish Paternity, Custody, Timesharing and Child Support.

 

HOW DO YOU REVOKE GUARDIANSHIP IN ALBUQUERQUE, NEW MEXICO?

 

Guardianship is generally revoked through a motion to revoke.  This motion is generally filed by a parent that can show a big change in circumstances since the guardianship was entered and that revocation is in the child’s best interests.

 

HOW DO YOU TERMINATE PARENTAL RIGHTS IN NM?

 

Custody relates to parental rights and parental rights can only be terminated by NM children’s court.  The family court that determines child custody and timesharing cannot terminate parental rights.

New Mexico family courts, however, can grant one parent sole legal custody.  Sole legal custody basically means that one parent can make all the decisions impacting the child.  Sole legal custody generally also means that a parent has limited, or no timesharing with the child.

Sole legal custody does not mean that a parent’s rights have been terminated.  Additionally, sole legal custody can always be modified based on a material change in circumstances that demonstrates sole legal custody is no longer in the child’s best interests.

In other words, sole legal custody can be modified based on a big change that impacts the child’s best interests.  On the other hand, termination of parental rights is final and cannot be modified.

 

CAN THERE BE GUARDIANSHIP AND CHILD CUSTODY AT THE SAME TIME?

 

Generally, no.  Guardianship usually requires a finding that the parents’ are unfit to care for the child.  In situations where one parent is unfit to care for the child, the other parent generally will be awarded sole legal custody.

HOW IS ADOPTION DIFFERENT THAN GUARDIANSHIP IN NEW MEXICO?

 

Although there are some similarities, adoption is different than guardianship, in the following ways:

• Adoption permanently terminates a parent’s rights.
• Guardianship can temporarily grant the guardian full parental rights. However, guardianship does not permanently terminate a parent’s rights.
• A parent that appoints a guardian may be required to provide the guardian with child support.
• Because adoption terminates a parent’s rights and responsibilities for a child, the parent is no longer required to provide child support for the child’s benefit.
• A child does not have inheritance rights with a Guardian.
• A child’s inheritance rights with an adoptive parent are the same as a biological parent.

 

DO I NEED AN ATTORNEY TO ESTABLISH GUARDIANSHIP OR CHILD CUSTODY IN NEW MEXICO?

 

It is always a good idea to have an experienced attorney guide you through the guardianship or child custody process.  An experienced NM guardianship and custody attorney can explain New Mexico law, help with filing complicated documents, and represent you in court.  An experienced NM custody and guardianship attorney can make the legal process less stressful, enabling you to focus on your relationship with the child.

 

(505) SANCHEZ HELPS YOU UNDERSTAND THE DIFFERENCE BETWEEN GUARDIANSHIP AND CHILD CUSTODY IN ALBUQUERQUE, NEW MEXICO

 

Do you have questions about the difference between guardianship and child custody in Albuquerque, New Mexico?  Matthew Legan Sanchez is an top rated New Mexico guardianship and custody attorney.  Sanchez has handled guardianship and custody trials for over a decade and can help you understand the difference between child custody and guardianship in Bernalillo, Sandoval, Santa Fe, or Valencia County in Albuquerque, New Mexico.  For more information about your NM guardianship or child custody case, call (505) SANCHEZ.