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My Blog
Jay R Mueller: Posted on Friday, November 28, 2014 6:43 PM
Grandparents and
Child Custody Part 1
The Holidays seem to bring out the questions in people and a
couple of folks have asked about their rights as grandparents when it comes to
physical custody of their grandchildren. Sometimes children are left with grandparents,
aunts and uncles, or other family members by the child’s parent for one reason
or another. And usually this is done in the best interests of the child or
children. What do you do when a weekend
becomes six months and mom or dad are nowhere in sight? What can a grandparent do to protect their grandkids
when they know the parents are engaged in dangerous or immoral behavior?
The New Mexico Kinship Guardianship Act Kinship
Guardianship (NMSA §40-10B-1 et seq.)
- Kinship
guardianship establishes a legal relationship between a child and a
kinship caregiver and provides the child with a stable and consistent
relationship with a kinship caregiver that will enable the child to
develop physically, mentally and emotionally...when the parents are not
willing to do so.
- 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appointment of a guardian and the consent has not been withdrawn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 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 statute is meant to address the issue of
when parents leave their children with their parents, siblings, or friends. The
law helps the new guardians protect and care for the children while the parents
are “taking a time-out” for lack of better terms. If the parents fight the petition, they must
appear in Court. A guardian ad litem is appointed to represent the child’s best
interest or the teenaged child. The Court then must decide what is in the child’s
best interest while considering the petition for kinship-guardianship.
But what if the above scenario is not the case? What
if your daughter is an unfit mother and who knows where dad, what then? Find
out in our next installment.
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