New Mexico Kinship Guardianship
Many people contact our law practice asking about how they can acquire legal protections and the authority needed to care for a child(ren). The questions and answers below provide some information on this special area of law.
What is the Kinship Guardianship Act in New Mexico?
The Kinship Guardianship Act sets out the legal rules for a person to become a Kinship Guardian. This applies to people who wish to get guardianship over a child they have a relationship of caregiver with. For instance, a grandparent or relative who has had the child living with them.
Who can it apply to?
The Kinship Guardianship Act only applies to children. The persons who can obtain guardianship under the act is rather broad. It includes relatives, but also non-relatives who have a close bond with the child, sometimes called “fictive kin”. Usually the child needs to have lived with the person seeking guardianship for the 90 days preceding the filing of the Petition, but in some emergency cases that time period can be waived.
What is the definition of Kinship/Guardianship?
Kinship/Guardianship is the full-time care, nurturing and protection of children by relatives, members of their tribes or clans, godparents, stepparents, or any adult who had a kinship bond with a child.
What is informal kinship care?
This is when an individual is given directly, or indirectly, the custody of a child. This individual has what is called revocable legal authority (power of attorney or caregiver's affidavit). When kinship care is informal, the biological parents can remove the child without notice. In the absence of written paperwork, individuals’ caring for a child have no true power or legal standing when challenged by biological parents. This is most often used in temporary situations where a guardian is needed to enroll children in school or obtain medical care for them, usually when a parent will be absent for a short time such as a military deployment.
What do I need to be an informal kinship guardian under New Mexico’s Kinship/Guardianship Law?
- Power of attorney
- Must be signed by a parent before a notary
- Can limit which authority is delegated (school, health, etc.)
- Any power can be delegated except power to authorize marriage or adoption
- Must be renewed every six months
- Revocable at will
- Caregiver's Authorization Affidavit (Kinship Guardianship Act,
What is formal kinship care?
This is when an adult has legal guardianship (and paperwork) giving custody of the child to them. In order to obtain the order, the potential kinship guardian must file paperwork with the Court and have a hearing before a judge.
What are the advantages of formal kinship guardianship?
There are many instances where formal kinship/guardianship is appropriate. When a child requires care and the caregiver needs the legal empowerment to function in the best interest of the person(s) they are caring for – a formal kinship/guardianship becomes vital.Sometimes the parent of the child may be unable to care for the child, such as a drug addiction or mental illness. Other times a parent may not have the financial means to care for the child and wishes a relative to care for their child.
Advantages to children under formal kinship guardianship:
- Keeps the family together and preserves cultural ties
- Avoids the trauma ofbeing removed from familiar surroundings or moving in with strangers
- Legally establishesthat the caregiver(s) have legal authority and can prevent the parents from removing the child at will
- Gives the kinship guardian all legal powers over the child except to consent to their adoption
- Promotes stability for the child and consistency in their schooling and residence
How do children end up in kinship care?
There are many reasons why children wind up in the custody of another family member (or other individual) under kinshipguardianship care. A few examples are:
- Biological parents can voluntarily place children with family or kin because they are unable or unwilling to take care of the children themselves. This is often due to substance abuse, incarceration, mental illness, or some other dysfunction.
- Family members can intervene and remove child or prevent the biological parent(s) from removing child from home.
- New Mexico Children Youth and Families Department (CYFD) worker suggests placement with family or kin after referral for abuse or neglect. In these instances CYFD may have put a safety plan in place, but no legal framework for the new caregivers to legally provide for the child.
What is the legal procedure for establishing kinship/guardianship from the court?
In New Mexico, if a child has resided with you for an extended period of time (over 90 days) and you want to continue to care for the child, you may be able acquire guardianship over the child through New Mexico‘s Kinship Guardianship Act. You do not have to be a blood relative in order to file a Kinship Guardianship Petition. However, if you are not a relative, or a member of the child‘s tribe, you will have to demonstrate that you have a significant bond with the child.
The grounds for guardianship, the bonds with the child, the bests interests of the child and other considerations must be set forth clearly in the Petition for Guardianship.The Kinship Guardianship Act is meant to address situations in which a parent has left a child with another person for more than ninety (90) days without “appropriate care, guidance or supervision.” If you are appointed the legal guardian of a child, the parent’s rights are suspended and transferred to you. This also means that you are responsible for caring for the child as if he or she were your own, which not only means feeding and clothing the child, but making decisions about things like medical care and education for the child too.
The New Mexico Courts will only appoint a Kinship Guardian if that appointment is in the best interest of the child. If both of the child’s parents agree to appointment of a legal guardian, then they can sign a Consent of Appointment of Guardian and they can also waive the requirement that a child live with you for at least ninety days before you can file a petition for kinship guardianship. However, if one or both of the child’s parents dispute the guardianship, the Court must appoint a Guardian Ad Litem to represent the child‘s interest.
Once guardianship has been appointed, the legal guardian has full physical custody and financial responsibility for the care of the child. The financial burdens associated with custody of a child can be significant for a guardian. As such, the guardian can petition and the court will generally award child support from one or both parents for the care of their children while the guardianship is in effect.
What is the actual legal procedure for being awarded kinship/guardianship in New Mexico?
- A Petition for Appointment as Kinship Guardian is filed with the Court
- All parents and children over the age of 14 must be personally served with the Petition
- Usually a Motion for Temporary Guardianship is filed at the same time as the Petition. This allows the potential kinship guardian to serve temporarily (up to 180 days) while the Petition is investigated and before it is made permanent by the court.
- If there is a hearing on the petition, the court must find that the potential kinship guardian is a qualified person, the venue is proper, the required notices have been given, the requirements of the statute have been proven, and the best interests of the child will be served by the requested appointment before it can enter an Order of Kinship Guardianship.
- The law states that a kinship guardian will be appointed only if:
- A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn
- A parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order
- The child has resided with the petitioner without the parent for a period of ninety (90) days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extreme circumstances; and no guardian of the child is currently appointed.
- A guardian has the legal rights and duties of a parent, except the right to consent to adoption of the child and rights and duties that the court orders retained by a parent.
- The person getting kinship guardianship may also receive child support from the parents of the child if it is appropriate.
Elder Law - Don’t Just Hire Any Attorney
Elder law attorneys are advocates for the elderly and their loved ones. Most elder law attorneys handle a wide range of legal matters affecting an older or disabled person. The focus on the needs of older adults is very different than the those of younger adults. Elder law attorneys are usually sensitive to the unique challenges involved in this area of practice. It’s very important that any attorney you choose be knowledgeable and experienced in the area you require help with.
Elder law covers a variety of legal issues typically beginning at age 65. These would be specific legal issues unique to individuals at this age or older. Some examples are:
- Powers of attorney
- Advance directives for healthcare
- Guardianship and conservatorship
- Planning for incapacity and long term care
- Social security and disability claims and appeals
- Veterans benefits
- Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
- Supplemental and long-term health insurance issues
- Disability planning, including use of durable powers of attorney, living trusts, "living wills," for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity
- Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills, and other planning documents
- Divorce for individuals in retirement
For example, if you are going to write or rewrite your estate plan or will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether any inheritance your spouse receives from you will affect his or her ability to receive Medicaid. Medicare only pays for the first 100 days of a stay in a nursing home and if a stay is longer, the person staying in the nursing home will need to receive Medicaid if they cannot afford the stay with their own funds.
How can an Elder Law attorney can help me?
An elder law attorney can help with any one of the following:
- Discussing the importance of wills and estate planning, including planning for a minor or adult with special needs, probate proceedings, and other matters.
- Creating a power of attorney for your finances. This needs to be done while you are still healthy.
- Providing help with health care and planning for long term care. It may include patient rights, Medicare, and a health care power of attorney.
- Financial representation and assistance with locating a financial planner and housing and guidance on income, estate, and gift tax matters.
- Guardianship: help with selecting and appointing a legal guardian and/or conservator.
- Help locate long term care facilities and manage assisted living cost.
- Explaining nursing home resident rights and help file nursing home claims.
- Drafting a living will or other advance directives, including a health care power of attorney and long term planning documents.
- Providing insight and advice on the effects of a divorce when you are in retirement.
An elder law attorney can provide essential guidance required for you to plan your future. She can clarify the issues and problems you are or will likely be facing, and provide you with the tools you need to make a solid plan. She will help you deal with these issues before they become crises.
Certain questions come to mind like:
- Who will manage your financial affairs if you become unable, and with what authority will they do so?
- How do you establish the authority for someone to help manage your finances?
- What if someone has been abusing that authority?
- Where do you want your estate to go when you are deceased?
- Do you need to worry about estate taxes?
- There are answers to these questions. And this is where an experienced elder law attorney can help you. A good attorney can ask you some questions you didn’t even think to ask yourself! They can help you legally set forth your wishes.
Hiring an Attorney
When hiring an elder law attorney, you should consider a few important factors:
- Does the attorney in question have the background and experience to advise you properly?
- How long have they been practicing?
- How much of their practice actually involves “elder law”?
- What is the total cost for the advice and for doing the legal work if you hire them?
Coming prepared before your initial meeting with a potential attorney is important. You should gather:
- lists of major assets and information on how the assets are titled,
- lists of major debts and credit card bills,
- an overview of monthly income and expenses,
- any existing wills
- any existing powers of attorney,
- any important contracts you may have signed which would impact any legal issues
- copies of recent retirement account and bank statements
- copies of any insurance policies you have, including those for long term care
- copies of your most recent income tax returns
When it comes to getting older, planning is vital. An experienced elder law attorney can help make sure you and your family are prepared for what lies ahead. From estate planning to healthcare, in addition to preparing legal documents, an elder law attorney can help provide the information and resources you need to make sound decisions – both now and down the road.