A guardianship in New Mexico is a legal relationship that is created when a court appoints a person to care for another person who is not legally competent to care for themselves. Courts in New Mexico may appoint one person to be the guardian of another in a variety of situations. A person does not actually get custody of a sibling in New Mexico. However, they may be appointed to serve as the guardian of their minor sibling in the appropriate circumstances.
Courts may grant a guardianship for a minor child whose parents are both unfit to have custody of their child in New Mexico or whose parents have both passed away. Guardianships are also granted for adults with disabilities or people who are no longer able to manage their affairs because of illness. A local attorney in New Mexico would be able to provide more information about guardianships in that state.
Guardianship is the answer whenever a child’s biological parents are unable or unwilling to act as the child’s guardian. A court in New Mexico will name a guardian for a minor if the court decides that it would be in the best interest of the minor under the following circumstances:
- The parents agree.
- The parent’s parental rights have been taken away by a court.
- The parents are not able to care for the minor because they have passed away.
- A person named as the guardian for the minor dies or becomes incapacitated, and they did not name a replacement guardian.
The guardianship of a minor may be temporary, in which case it may last for 6 months. Or a guardianship may be permanent. A permanent guardianship lasts until the child turns 18. If the facts warrant it, a permanent guardianship may be revoked by a judge before the child reaches the age of 18.
What Is the Process for Obtaining Custody of a Sibling?
A person who wants to be appointed guardian must petition the court in the county where the proposed ward lives. The court holds a hearing on the petition to determine whether the guardianship would be in the ward’s best interests.
The person who seeks appointment as a guardian has the burden of proving that they should be appointed. The court makes a searching investigation of a person who wants to be appointed the guardian of a minor child. The person can expect to have to testify in court during a hearing on a petition for appointment as a guardian. Expert testimony from physicians, psychologists, and social workers may be needed or would at least be helpful.
New Mexico also has a type of guardianship for a child that is known as “kinship guardianship.” The New Mexico Kinship Guardianship Act governs this relationship. Kinship guardianship may come into play when a parent has left a child in the care of an adult who is not the child’s parent.
This adult may petition a court to establish a legal relationship for them and the child. If a kinship guardianship is established by a court, it suspends most of the rights and duties of a child’s parents. The parents’ rights and duties are transferred to the guardian. A kinship guardian does not have the legal authority to allow the child’s adoption. A court may also direct that there are certain parental rights and duties that the parents retain.
However, generally, a kinship guardian would assume the responsibilities of the ward’s parent.
A person would do well to have a legal consultation before seeking to be appointed as the guardian of a minor.
How Old Do You Have to Be to Take Custody of a Sibling in New Mexico?
A guardian in New Mexico must be at least 18 years old. They must otherwise be qualified to take on the responsibility of caring for the needs of a minor child. There are special requirements to be a kinship guardian.
Can a Sibling Be a Legal Guardian?
A court in New Mexico may appoint any person they think is suitable to be a guardian, including an adult sibling. On the other hand, a guardian does not have to be a relative of the prospective ward. However, a New Mexico court does give preference to the protected person’s relatives if more than one person seeks to be appointed the guardian. Again, a guardian must be at least 18 years old.
If a relative is not available, a person who knows the child might step up to serve as their guardian. For example, a neighbor, teacher, or friend of the family might be willing to take on the role.
One person may petition a court to be appointed guardian. However, 2 people, usually a couple, may serve as co-guardians also.
If more than one person seeks to be a guardian, the court will give preference to one of them on the following basis:
- People nominated for guardianship by the parent if the ward is a minor child
- The court considers a request regarding the choice of a guardian made by a minor ward who is 14 or older, but the court does not have to honor the request.
A New Mexico court may require a guardian to complete training that the court thinks is appropriate for a personal guardianship case as well.
There are requirements for a person to serve as a kinship guardian as follows:
- The kinship guardian is an adult who is not the child’s parent and with whom the child has been living for at least 90 days immediately before filing the kinship guardianship case.
- The kinship guardian is at least 21 years old, and the child, who is at least 14, has been living with them for 90 days immediately before filing the kinship guardianship case. In addition, the child has asked for this person to be their legal guardian.
- A caregiver that the child’s parent has chosen in writing. If both parents consent, the child does not have to live with the caregiver for 90 days immediately before filing the kinship guardianship case.
What Else Should Be Considered?
As noted above, a child who has been orphaned may need a guardian. Also, guardianship might be appropriate if a New Mexico court has determined that it is in the child’s best interest to terminate the parental rights of a child’s biological parents per the child custody laws in New Mexico. A court might terminate a parent’s right to custody of their child in cases that involve child abuse or neglect, drug or alcohol addiction, or parental incapacity.
In some situations, a child’s parents themselves may have named an adult sibling in their will to serve as the child’s guardian if the parents pass away or become incapacitated.
It is possible that an adult sibling of a minor child would be the person who petitions a court to terminate the parent’s rights. A New Mexico family law attorney would be able to help an adult sibling collect evidence to support termination of parental rights and show that it would meet the child’s best interest standard. Courts use this standard for all child custody decisions in New Mexico.
They might also prepare the legal petition to get the adult sibling appointed as guardian.
If there is no adult sibling to serve as guardian and no other person qualified and willing to serve as a guardian, a court may appoint a public guardian. This is a person or entity who has the necessary qualifications and is registered and approved by the county probate court to serve as a guardian.
The guardianship of a minor sibling would come to an end when the minor reaches the age of 18 years old or is emancipated by marriage or the order of a court.
Do I Need an Attorney for Sibling Custody Issues?
To become the legal guardian of your sibling who is under the age of 19, you want to consult a New Mexico custody lawyer. LegalMatch.com can quickly and easily connect you to a lawyer who understands the forms, documents, and court procedures required and can help you make your best case.
