Under New Mexico law, the parents of a child are presumed to be the people best able to take care of that child. The reality is some people are simply incapable of stepping up and being the parent their children need. Oftentimes this is the result of physical disability, mental health issues, substance abuse, or incarceration. In these situations, the parent needs to work on taking care of themselves before they can begin to meet the emotional and physical needs of a child.
Kinship guardianship allows people who have a strong relationship with a child to step up when that child is in need. It is a way to protect children whose parents are unable or unwilling to care for them themselves.
At Matteucci Family Law, Attorney Bob Matteucci helps New Mexico residents who are concerned about the welfare of a child they love to navigate the family law system and become kinship guardians.
What is a Kinship Guardian?
Kinship guardianship is a legal process that allows a relative, godparent, member of a child’s tribe or clan, or another adult who has a significant bond with a child in need, to come forward and take physical and legal custody of the child.
The guardian steps into the role of the parent, taking physical and legal custody of the child. The guardian becomes completely responsible for the care and welfare of the child and may make important decisions on the child’s behalf.
Kinship guardianships may or may not be permanent. Some guardians serve until the child in their care reaches adulthood. Other guardians relinquish their role when a child’s birth parent is willing and able to resume their role as the primary caretaker. If a guardian is not properly caring for a child, the court will revoke guardianship.
The Benefits of Kinship Guardianship
A kinship guardianship is a great way to make sure a child is well taken care of when his or her parents are unable or unwilling to do so themselves.
- Rather than taking a child who is being neglected, abused, or otherwise poorly cared for away from his or her family and friends, kinship guardianship keeps that child connected to his or her existing support system. The alternative to kinship guardianship is often foster care, which can take a child away from everyone he or she knows, and force him or her to move several times before aging out of the system.
- There are also certain legal benefits that come with kinship guardianship. While family members or friends often step in informally when a child they love is in need, a kinship guardianship formalizes that relationship. It allows the guardian to obtain medical and dental care for the child and make decisions about the child’s education. The guardian may also be eligible for financial assistance from various state agencies or child support from the parents.
- The fact that kinship guardianships can be terminated by the child’s birth parents, or by the court, means there is an incentive for anyone who loves the child to do their best to care for him or her. Birth parents know if they can prove they can handle it, they may get their children back. Guardians know they must do what is best for the child or the court will step in.
How Can I Become A Kinship Guardian?
Being appointed guardian of a child you love who is not being well cared for is not a simple process. New Mexico courts are hesitant to remove children from their parent’s homes unless there is clear evidence it is in the best interest of the child to do so.
Filing a petition for guardianship is the first step in the lengthy legal process. In the petition, you must allege that at least one of the following is true:
- The custodial parents have consented in writing to allow the appointment of a kinship guardian
- The custodial parents have had their parental rights terminated or suspended
- The child has lived with the individual petitioning for guardianship for at least three months (90 days) without his or her parents present
- Extraordinary circumstances
If at least one of those conditions is met, the court will then ask for evidence proving the custodial parents are unwilling or unable to properly care for the child. This could include evidence of:
- A physical disability or illness that prevents the parents from adequately caring for the child
- Drug or alcohol abuse
- Mental illness
- Abuse or neglect of the child
- Abandonment of the child
- The unwillingness of the parents to raise the child
The court will also need proof that you will make a suitable kinship guardian:
- You have a close relationship with the child. Most guardians are relatives, godparents, or members of a child’s tribe or clan, but anyone with a close relationship with a child can petition for guardianship.
- You are a responsible adult with the capacity to care for the child. The court will want to know about your living arrangement, finances, and criminal history.
- It would be in the best interest of the child for you to take custody.
During the guardianship appointment process, the courts often hire a separate attorney for the child, called a Guardian ad Litem, to assist with the investigation and determine what is best for the child.
Contact A New Mexico Kinship Guardianship Attorney
If you are concerned about the welfare of a child you love, now is the time to take action to protect them. Seeking kinship guardianship is one way to do so.
Working with an experienced family law attorney like Bob Matteucci increases the likelihood that your petition for kinship guardianship will be approved. Bob will help you file the necessary paperwork, assemble and present the evidence, and represent you in court.
He will answer any questions or concerns you have about the process and will let you know what your legal rights are if the court approves your petition. Give Matteucci Family Law a call today to get started.