GUARDIANSHIP AND GRANDPARENT'S RIGHTS
LEGAL GUARDIANSHIP IN NEW MEXICO
Legal guardianship is one way by which an adult caretaker may acquire the legal rights and financial means to care for a child who is not their own. Because there are limitations to the legal rights of guardians and because other avenues by which legal custody may be acquired, you should consult with a family law attorney to determine if legal guardianship is the best option for your situation.
TEMPORARY GUARDIANSHIP IN NEW MEXICO
Sometimes parents need to turn over guardianship temporarily to another adult they trust and are willing to consent to a temporary guardianship. Often, this includes grandparents or another relative, but sometimes may be a friend of the family. When this happens, it is important to obtain proper legal documentation to reflect this change and protect your relationship with your child.
In the State of New Mexico, guardianship may be informal or formal.
INFORMAL GUARDIANSHIP means that a caretaker has limited or no legal authority over the child. Unless temporary guardianship is court ordered, the parent(s) may take the child out of the guardian’s care at any time.
FORMAL, OR LEGAL GUARDIANSHIP means that a caretaker has legal custody of the child, giving the caretaker legal rights to make decisions about a child’s education, medical care, etc. A parent cannot revoke legal guardianship at will.
Legal guardianship allows the most stable living situation for a child whose parents are unable or unwilling to care for him or her, reducing trauma and emotional stress on the child.
If you are legal guardian to a child, it means you are responsible for the child’s:
Health care: Legal guardianship means you can make medical decisions, including treatments, counseling and therapy.
Education: You will choose the child’s school, including any Individualized Education Programs. You may also help the child choose extracurricular activities.
Financial support: You must support the child financially, however, you may be eligible for help in the form of welfare, foster care payments and other social services.
Living situation: You may be permitted to move with the child if you obtain permission from the Court ahead of time.
Driver’s license: You may give the child permission to obtain a driver’s license, however, you will have to pay for any damages if the child is in an accident.
Armed forces: You may give the child permission to join the armed forces if he or she is under 18.
SEEKING CHILD SUPPORT PAYMENTS AS A LEGAL GUARDIAN
Legal guardians who have physical custody of a child may be eligible to receive child support payments from the non-custodial parent(s). If there are no existing child support orders or if existing child support orders must be modified to assign a new recipient and/or recalculate the amount based on the guardian’s income and need, you should seek the help of an experienced family law attorney.
IS LEGAL GUARDIANSHIP RIGHT FOR MY SITUATION?
Taking care of children is a big responsibility, one that parents by circumstance or by choice may not bear. If parents are not willing or able to take care of their child or children, another adult with whom the child has a relationship (kin) may step in. Formalizing the relationship by pursuing legal guardianship can give the caretaker the rights and resources they need to adequately provide for and make decisions concerning the child’s welfare.
The family law specialists at Terry & deGraauw, P.C. in Albuquerque, NM have an in-depth knowledge of family law and years of experience. They can help you understand the advantages and disadvantages of legal guardianship and other options for caretakers.
GRANDPARENT VISITATION RIGHTS IN NEW MEXICO
While grandparent visitation in New Mexico is considered a privilege rather than a right, there are special circumstances in which grandparent’s rights laws permit grandparents to seek visitation in court. Grandparent’s visitation cases in New Mexico typically apply to grandparents who have a strong pre-existing relationship with the child prior to the death or divorce of the child’s parents.
In all grandparent’s visitation cases, the court decides visitation based on the best interests of the child. In many cases, the issue of grandparent visitation will first be referred to a custody mediator or grandparent’s rights attorney who attempts to resolve disputes and work out a visitation agreement. If your case goes to court, a Family Court judge will consider factors like:
- Why the parents object to grandparent visitation.
- The previous relationship between you and the grandchildren.
- Any visitation agreements already in place.
- If the family has a history of physical, emotional or sexual abuse.
- If you have ever been the child’s caretaker for a significant length of time.
If you were previously left in charge of your grandchild and the child’s parents are unfit, you may be able to present your case for grandparent custody rights in court through a guardianship petition. Similar to visitation rights, a Family Court judge will consider your previous relationship with the child, the death of one of the child’s parents and whether one or both of the child’s parents are unfit. In the latter circumstance, you may be granted temporary custody or guardianship of your grandchild, depending on what is best for the child.
If you are a grandparent who would like to continue your relationship with your grandchild after divorce or other circumstances, the family law attorneys at Terry & deGraauw, P.C., can help. Whether it is by joining a divorce proceeding or filing a separate petition for visitation, our attorneys find creative solutions that increase your chance for visitation.
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