Kinship Guardianship
In New Mexico, “kinship” means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s tribe or clan or an adult with whom the child has a significant bond (Kinship Guardianship Act 40-10B-3) “Kinship guardianship” establishes a legal relationship between a child and a kinship caregiver, fostering a stable and consistent environment to physically, mentally, and emotionally nature the child when the parents are not willing to do so.
There is an array of legal options provided to Caregivers in New Mexico. Every situation of a child going to live with a Kinship Guardian is unique. In some instances, this stay may be temporary; while in others, this stay may be permanent. There are different options of legal supports for caregivers to explore.
CAREGIVER AFFIDAVIT
- Used by a caregiver with whom a child is living for any amount of time.
- Valid for one year.
- Protects person who provides services pursuant from criminal or civil liability, or disciplinary action.
- Must be signed by the caregiver before a notary
- Any caregiver can receive authorization to enroll a child in school and school-related medical services.
- Only “classified relatives,” including adults with whom children have a significant bond, can authorize any other medical care.
POWER OF ATTORNEY
- Must be signed by a parent before a notary.
- Can limit which particular authority is delegated.
- Any power can be delegated except power to authorize marriage or adoption.
- Must be renewed every six months.
- Revocable at will.
- Must be signed by a parent before a notary
- Can limit which authority is delegated (school, health, etc.)
- Does not interrupt parent’s rights.
KINSHIP GUARDIANSHIP
- Proceedings shall be in the court of the county of the child’s legal residence or the county where the child resides if different from the county of legal residence.
- A kinship guardianship petition may be filed by a kinship caregiver; or by a caregiver who has reached his twenty-first birthday, with whom no kinship with the child exists, who has been nominated to be guardian of the child by the child, and the child has reached his fourteenth birthday or a caregiver designated by a parent in writing.
- After the petition is filed, the court may appoint a temporary guardian to serve for 180 days or less or until the case is decided on the merits, whichever comes first.
- At the court hearing on the petition, if the court finds that a qualified person seeks appointment, 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, it shall make the appointment of guardianship.
- A kinship guardian may 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 regarding 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 an adoption of a child and rights and duties that the court orders retained by a parent.
REFERENCES