Not every parent is capable of providing the love and care 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.
Fortunately, other adults in the child’s life often step up to fill the gap their parent has created before the State of New Mexico can swoop in and send them to foster care. Formalizing this arrangement by seeking kinship guardianship of the child is often the best way to protect the child and ensure they continue to receive safe, consistent care.
At our Albuquerque-based law firm, Bob Matteucci and the rest of our experienced family law team regularly represent grandparents, aunts, uncles, adult siblings, and other extended family members who want to get kinship guardianship and take legal responsibility for a child they love.
Our job in these cases is to bring clarity, structure, and stability to what is often an overwhelming and emotionally charged rollercoaster.
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 the legal authority to care for a child when the child’s parents are unable to do so safely or consistently.
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.
Unlike adoption, a kinship guardianship:
- Does not permanently terminate parental rights
- Allows parents to retain certain rights, such as visitation (when appropriate)
- Can be temporary or long-term, depending on the family’s needs
- Prioritizes keeping the child within their biological family
In many cases, kinship guardianship is pursued specifically to prevent a child from entering foster care while still ensuring the child’s daily needs are being met.
Why Families Choose 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. Common reasons families seek kinship guardianship include:
- A parent’s substance abuse or addiction
- Repeated relapses after treatment
- Mental health instability
- Incarceration
- Chronic neglect or inability to provide structure
- Sudden emergencies or crises
People in the Albuquerque area often come to us with questions about kinship guardianships because they are already taking care of a child they love. Oftentimes an informal arrangement with the child’s parent allowed them to step in, but they are finding that is not enough. While well-intentioned, informal caregiving leaves both the child and caregiver legally vulnerable.
The Benefits of Kinship Guardianship
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
- Incarceration
- 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. Bob and his team can help you demonstrate:
- 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.
Frequently Asked Questions About Kinship Guardianship
While each family is different, and one child’s need for a kinship guardian will not exactly mirror another’s, many of Bob’s clients in the Albuquerque area share similar questions about the guardianship process. The following FAQs address common issues faced by families curious about kinship guardianships, and the answers may help you decide if it is an option you want to discuss with the Matteucci Family Law team.
Is kinship guardianship permanent?
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.
Do parents lose their rights?
Parents do not lose all their rights since it is possible for them to petition the court to terminate the guardianship. However, while a kinship guardianship is in place, the guardian gains legal authority to make all the day-to-day decisions for the child, including medical and educational decisions.
Can parents still have visitation?
Often, yes. Visitation may be agreed upon or ordered by the court, depending on what is safe and appropriate for the child.
Does substance abuse automatically mean guardianship is granted?
No. The court looks at the totality of circumstances. However, ongoing substance abuse that affects a parent’s ability to care for a child is unfortunately common in these cases.
Do I need an attorney to pursue kinship guardianship?
While not legally required, kinship guardianship involves statutory requirements, court procedures, and potential disputes. Working with an experienced family law attorney like Bob Matteucci can help avoid delays and mistakes.
Can kinship guardianship help keep a child out of foster care?
Yes. In many cases, kinship guardianship is specifically used to prevent foster placement. It formalizes the relationship between a reliable adult and the child they love.
Will the judge consider what the child wants?
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 course of action is in the child’s best interest. Depending on the child’s age and maturity, this often includes the child’s wishes.
Serving Families with Dignity & Compassion
Whether you are stepping in during a crisis or planning ahead to protect a child you love, 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
If you are concerned about the welfare of a child you love, now is the time to take action to protect them. Give Matteucci Family Law a call today to get started.
Matteucci Family Law Firm helps families with their family law matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.