Albuquerque Divorce Lawyer Blog

In the recent case of Vescio v. Wolf, the New Mexico Court of Appeals discussed the issue of third-party child custody, which refers to a situation in which a person other than a child's mother or father seeks custody of that child. In Vescio, a child's aunt filed a petition for custody and timesharing against the child's mother and grandmother, who had been appointed the kinship guardian of the child (the child's father was not involved with the child's life or this case).

The aunt initially based her petition on alleged abuse of the child by the mother and grandmother, however, the New Mexico Children Youth and Families Department (CYFD) found the allegations of abuse to be unsubstantiated. The district court dismissed the aunt's petition because she lacked standing to seek custody under the regular child custody statutes.

In the Vescio opinion, the Court of Appeals listed five primary situations in which a third-party may be awarded child custody in New Mexico: 1) when extraordinary circumstances exist and there is no other adequate remedy available; 2) during an action for dissolution of marriage; 3) when a parent or guardian for the child dies, the court can award custody to a third-party under the Probate Code; 4) when there has been a finding of abuse and neglect by CYFD; and 5) when a third-party files a petition for custody under the Kinship Guardianship Act.

The Court of Appeals upheld the dismissal of the aunt's petition because it did not properly fall within any of the situations listed above. However, the Court ruled that the aunt would have standing to file a motion to revoke the grandmother's guardianship under the Kinship Guardianship Act.

If you are a third-party thinking about seeking custody of a child, this case illustrates that importance of consulting with an attorney in order to ensure that you use the proper body of law as a basis for your claim.

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Unfortunately, there comes a time in the lives of many adults when they are impaired to the point where they can no longer make decisions for themselves. This impairment can be the result of mental illness, physical disability or drug and alcohol abuse. In such situations, the New Mexico Probate Code Adult Guardianship provisions allows for the appointment of a guardian and/or a conservator to make important decisions for the impaired person. A guardian makes personal and health care decisions for the impaired person, which a conservator makes decisions related to the financial affairs and property of the impaired person.

Any person over the age of eighteen, or properly registered corporation, may serve as a guardian or conservator and the same person or entity does not have to serve as both guardian and conservator. For instance, often the spouse of an incapacitated person will be appointed as their guardian, but a bank will be appointed as conservator. Every guardian and conservator must be appointed to serve by the District Court.

While any party interested in the estate, affairs or welfare of an incapacitated person may file a petition to be appointed as guardian or conservator, the process is very complicated. The courts take these appointments very seriously because by appointing a guardian or conservator, the court is essentially taking away the fundamental right of the impaired person to make decisions for themselves. The incapacitated person and certain family members must be given notice of the appointment proceeding and the court will appoint a guardian ad litem to represent and protect he incapacitated person.

The court will also appoint a court visitor, which is usually a health care professional or social worker, and a qualified health care professional to evaluate whether or not the person is actually incapacitated to the extent that a guardian or conservator is necessary.

To further complicate things, a guardian or conservator can also be given limited guardianship authority, if the court believes that the person is only partially incapacitated and is still capable of making some decisions for his or herself. Given the wide variety of issues involved in the appointment of a guardian or conservator, it is a good idea to consult an attorney about the process if you believe that family member or loved one is in need of such supervision.

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What should you do if a family member or friend has left their child with you for an extended period of time? In New Mexico, if a child has resided with you for an extended period of time and you want to continue to care for the child, you may be able acquire guardianship over the child through New Mexico's Kinship Guardianship Act.

Though there are numerous requirements under the Act, you do not have to be a blood relative in order to file a Kinship Guardianship petition. However, if you are not a relative, or a member of the child's tribe, you will have to demonstrate that you have a significant bond with the child. The grounds for guardianship, the bonds with the child, the bests interests of the child and other considerations must be set forth clearly in the Petition for Guardianship.

The Kinship Guardianship Act is meant to address situations in which a parent has left a child with another person for more than ninety (90) days without "appropriate care, guidance or supervision." If you are appointed the legal guardian of a child, the parent's rights are temporarily suspended and transferred to you. This also means that you are responsible for caring for the child as if he or she were your own, which not only means feeding and clothing the child, but making decisions about things like medical care and education for the child too.

The New Mexico Courts will only appoint a Kinship Guardian if that appointment is in the best interest of the child. If both of the child's parents agree to appointment of a legal guardian, then they can sign a Consent of Appointment of Guardian and they can also waive the requirement that a child live with you for at least ninety days before you can file a petition for kinship guardianship. However, if one or both of the child's parents dispute the guardianship, the Court must appoint a Guardian Ad Litem to represent the child's interest.

Once guardianship has been appointed, the legal guardian has full physical custody and financial responsibility for the care of the child. The financial burdens associated with custody of a child can be significant for a guardian. As such, the guardian can petition and the court will generally award child support from one or both parents for the care of their children while the guardianship is in effect.

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