- According to the New Mexico Probate Code, sections 45-5-101 et seq., NMSA 1978, the father is the natural guardian. In the event of the father's death, guardianship naturally passes to the mother. If neither parent is alive or if they are unfit, the county will appoint a guardian. If the minor child is under the age of 10, the court will appoint a guardian and if the minor child if over the age of 10, a guardian may be chosen by the child. In this case, the court is obliged to accept the minor's choice and supersede prior guardians. Guardianship can be specified in a will unless a challenge is made.
- Under New Mexico laws, three types of guardianship classifications are acknowledged; traditional guardianship, testamentary guardianship and temporary guardianship. With temporary guardianship the parents may, in a properly drafted will, have the ability to appoint or indicate who they would like to step in as guardian for the child. In this case the court will make the determination as to the appropriateness of the parents' selection. Temporary guardianship is generally granted by the courts when care of a child is needed for a certain amount of time. If you are seeking temporary guardianship, once the purpose of the arrangement has been accomplished, the guardianship will be terminated. In a traditional guardianship arrangement, if approved by the court, you will be the child's guardian until he reaches the age of 18.
- You must inform all involved parties that you are seeking guardianship. The parties generally include the biological parents of the child. You must also inform any other parties with whom the child is living at the time you file your guardianship petition or 60 days prior to the filing of the petition. A copy of the notice of the hearing as well as a copy of the petition must be mailed at least 19 days prior to the hearing date. If the petition and notice are hand-delivered, you must be sure to deliver at least 14 day before the hearings. If no objections are filed, you will be able to proceed and present your petition to the court.
- According to New Mexico's Kinship Guardianship Act, interests of a minor child are best served when they are raised by their biological parents. When neither parent is capable of providing support, the policy of the state is that the child should be raised by family members. The Act is intended to arrangements that would need to be made if the child is left without appropriate supervision. The court may order a parent to pay the reasonable costs for support and maintenance of the child.
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