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Grandparents and Child Custody Part Two

Posted on March 30, 2015 at 10:50 AM Comments comments (45)
There are three conditions where grandparents can petition the Children's Court for custody of their grandkids. The New Mexico Grandparents Visitation Privileges Act provides the following scenarios:  

We discussed one of those scenarios in our November 28, 2014 installment. That article focused on the Kinship-Guardianship process whereby grandparents can petition for custody and guardianship for their grandchildren in cases where the biological parents have left the children with grandma and grandpa for an extended period of time and with no real end in sight.

The second scenario is pretty easy to understand and that's when the child's or children's parent dies leaving the grandparents as the children's only suitable family to parent them. Sometimes this situation is covered in the biological parent's will or estate plan. Oftentimes it's not and the parent's death is quite unexpected.

The third situation is during any legal separation, divorce, or paternity case involving the children. For example, the parents are divorcing, grandparents can basically intervene in the case and petition the district court for custody of the children.

These scenarios are just that and do not guarantee that the grandparents will prevail. The Court must consider what is in the best interests of the child, the very same standard that the Court applies in all cases dealing with child custody. Often grandparents will need to prove through expert testimony why the Court should grant them custody as opposed to one of the biological parents or perhaps another intervening grandparent(s).

Another situation is a pending child abuse/neglect case. If the children are taken into CYFD custody because of allegations of suspected abuse/neglect by the biological parent(s) the grandparents can contact CYFD and fight for custody. In these types of cases there's a presumption that the child should be staying with blood relatives such as grandparents. The basic caveats are that the grandparents can provide a safe environment etc.

If you have additional questions, please contact me. Thanks

Grandparents and Child Custody Part One

Posted on November 28, 2014 at 8:43 PM Comments comments (109)

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.