2021 New Mexico Statutes
Article 10B - Kinship Guardianship
Section 40-10B-8 - Hearing; elements of proof; burden of proof; judgment; child support.

A. Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B of this section have been proved and the best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases, the court may dismiss the proceedings or make any other disposition of the matter that will serve the best interests of the minor.
B. A guardian may be appointed pursuant to the Kinship Guardianship Act only if:
(1) 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of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn;
(2) 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; or
(3) the child has resided with the petitioner without the parent for a period of ninety 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 extraordinary circumstances; and
(4) no guardian of the child is currently appointed pursuant to a provision of the Uniform Probate Code [Chapter 45 NMSA 1978].
C. The burden of proof shall be by clear and convincing evidence.
D. As part of a judgment entered pursuant to the Kinship Guardianship Act, the court may order a parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay. The court shall consider the potential impact of financial payments pursuant to this subsection on the relationship of the parent and child and on the prospects of family reunification. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.
E. The court may order visitation between a parent and child to maintain or rebuild a parent-child relationship if the visitation is in the best interests of the child.
History: Laws 2001, ch. 167, § 8; 2015, ch. 28, § 3; 2020, ch. 51, § 3.
Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901 et seq.
The 2020 amendment, effective May 20, 2020, required the court to consider the potential impact of financial payments when ordering a parent to pay costs of support and maintenance of a child; and in Subsection D, added "The court shall consider the potential impact of financial payments pursuant to this subsection on the relationship of the parent and child on the prospects of family reunification.".
The 2015 amendment, effective June 19, 2015, changed the standard of proof in cases involving an Indian child; in Subsection C, deleted "except that in those cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, the burden of proof shall be proof beyond a reasonable doubt".
Both parents must satisfy the conditions for appointment of a guardian. — Section 40-10B-8 NMSA 1978 requires both parents to satisfy at least one of the three conditions of Subsection B, but does not require both parents to satisfy the same condition. Freedom C. v. Brian D., 2012-NMSC-017, 280 P.3d 909, rev'g 2011-NMCA-040, 149 N.M. 588, 252 P.3d 812.
Both parents satisfied the conditions for appointment of a guardian. — Where the parents and the child lived with the child's grandparents for three years; one parent was the child of the grandparents; the other parent moved out of the house and ended the relationship with the other parent in 2008; in a custody proceeding filed by the parents, the district court awarded temporary sole legal and physical custody of the child to the grandparents and visitation rights to the parents; in 2009, almost nine months after they had been awarded custody, the grandparents filed a petition for kinship guardianship and custody of the child; one parent consented to the guardianship; the other parent did not consent to the guardianship; and the district court found the parents to be unfit to raise the child and granted the grandparent's petition for kinship guardianship, the district court properly applied 40-10B-8 NMSA 1978 because both parents satisfied the conditions of Subsection B(3) of 40-10B-8 NMSA 1978. Freedom C. v. Brian D., 2012-NMSC-017, 280 P.3d 909, rev'g 2011-NMCA-040, 149 N.M. 588, 252 P.3d 812.
Extraordinary circumstances defined. — Extraordinary circumstances for purposes of the Kinship Guardianship Act are circumstances other than the parent's current inability or unwillingness to provide the child with adequate care, maintenance and supervision that justify appointing guardians for a child over the objections of the child's parents. Debbie L. v. Galadriel R., 2009-NMCA-007, 145 N.M. 500, 201 P.3d 169, cert. denied, 2008-NMCERT-012, 145 N.M. 571, 203 P.3d 102.
Extraordinary circumstances. — A showing that the petitioners have assumed the role of the psychological parents of the child who is the subject of a Kinship Guardianship Act proceeding to the extent that the child will suffer a significant degree of psychological and emotional harm if the relationship with the psychological parents is abruptly terminated is sufficient to rebut the presumption that the biological parent is acting in the child's best interests and to establish extraordinary circumstances within the meaning of the Kinship Guardianship Act. Debbie L. v. Galadriel R., 2009-NMCA-007, 145 N.M. 500, 201 P.3d 169, cert. denied, 2008-NMCERT-012, 145 N.M. 571, 203 P.3d 102.
Extraordinary circumstances were not proven. — Where, in a divorce action, although respondent and respondent's ex-spouse were both found to be fit, custody of respondent's children was awarded to the ex-spouse; the ex-spouse and children lived in New Mexico for eleven years; respondent lived in Texas where the children visited respondent during summers and holidays; when the ex-spouse developed cancer, the children stayed with petitioners for brief periods while the ex-spouse receive medical treatments; when the ex-spouse died, petitioners sought to be appointed as kinship guardians over the children; petitioners were friends of the ex-spouse, but had no biological relationship to the children; the children wanted to stay with petitioners because they had strong ties with the community, wanted to finish school in the community, and were eligible for college scholarships in New Mexico; and there was no evidence that the move to Texas with respondent would cause serious psychological harm or other serious detriment to the children, the evidence did not establish that there were extraordinary circumstances to rebut the presumption that the welfare and best interests of the children would best be served in the custody of respondent. Stanley J. v. Cliff J., 2014-NMCA-029.