When both parents are unable or unwilling to care for their child, New Mexico allows for a close family member or other qualifying person to take legal and physical custody. Kinship Guardianship may be granted by consent (i.e. both parents agree to the order). If one or both parents do not agree to the guardianship, the Court must decide the parents are incapable of caring for their child before awarding guardianship.
Final orders of Kinship Guardianship can be changed. The guardianship may be revoked (and legal and physical custody return to one or both parents) with the agreement of the guardian. One or both parents may also ask the Court to revoke the guardianship without the guardian’s consent.
Kinship Guardianship cases can be difficult for families, especially if the parents and guardian do not agree on what is best for the child. However, the Court can make temporary orders to make sure custody of the child is stable during a case until a final decision is made. If a Kinship Guardianship case is contested by either parent, or if a parent asks the Court to revoke the guardianship without the agreement of the guardian, the Court often hires an attorney for the children, called a Guardian ad Litem, to assist with the investigation and determine what is best for the child.