Revisions to Kinship Guardianship Act a Step Back for Parental Rights

mother daughter

The need for some laws is obvious. Most people do not need an explanation about why there are laws against hurting and killing other people or taking their property, or why we need laws actually requiring employers to pay their employees for work they do.

Sometimes, when it’s not so obvious, legislatures enact laws which include affirmative statements regarding the public policy advanced by the law or the public interest protected, with the hope that these statements will help guide any future revisions toward the promotion of that public policy or interest.

Since its initial adoption, New Mexico’s Kinship Guardianship Act (NMSA 40-10B-2) contained the following declaration:


A. It is the policy of the state that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance and supervision to a child, it is the policy of the state that, whenever possible, a child should be raised by family members or kinship caregivers.

B. The Kinship Guardianship Act is intended to address those cases where a parent has left a child or children in the care of another for ninety consecutive days and that arrangement leaves the child or children without appropriate care, guidance or supervision.

C. The purposes of the Kinship Guardianship Act are to: SFC/SB 185 Page 1

(1) establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent; and

(2) provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally and emotionally to the maximum extent possible when the child's parents are not willing or able to do so."

This policy statement prioritizes the care and residential living situation of minor children only in the event neither of their parents are able or willing to adequately provide for them. More importantly, all three provisions: A, B and C - address the issue of children’s care when the parents cannot or will not provide it. “It is the policy of the state that the interests of children are best served when they are raised by their parents.” This single sentence alone would be adequate to define our public policy behind this law to the extent that it states the principle we intended to advance or protect by enacting the Kinship Guardianship Act.

For better or worse New Mexico’s legislature repealed the entire Policy-Purpose section of this statute and did not replace it with anything. So, New Mexico’s Kinship Guardianship Act no longer contains any statement of its policy and purpose, and this represents a substantial step backwards for parental rights in New Mexico.

A vast majority of Kinship Guardianship Petitions are brought by grandparents. These grandparents, whose adult children are struggling, usually seek custody of their grandchildren to protect them from their parent’s bad choices or other critical parental deficiencies. At the beginning of the case, the burden is on the Petitioner (grandparents) to demonstrate to the court by clear and convincing evidence that both parents are unable and/or unwilling to adequately provide for the children’s care supervisions and maintenance. If the Petitioner satisfies the burden, the Court will make appointment of the Kinship Guardian permanent.

Once appointment of the Kinship Guardian is made permanent, the burden for modifying it shifts from the Petitioner to the parents. So, at any time after the appointment is made permanent, either parent can motion the Court to end the appointment of the Kinship Guardian if they can demonstrate the following to the Court by clear and convincing evidence:

  1. That there have been substantial and material changes in circumstances.
  2. That the parent seeking to end the appointment of the Kinship Guardian is willing and able to adequately provide for the children’s care supervisions and maintenance; and
  3. That it is in the children’s best interest to end the appointment of the Kinship Guardian.

To get their own children back, the first two requirements are difficult enough for young parents to prove, but that third requirement becomes downright paradoxical, if not impossible, when we no longer make the parent/child relationship our collective priority by declaring “It is the policy of the state that the interests of children are best served when they are raised by their parents.

Before repealing the policy statement, the third requirement was proved as a matter of public policy with the satisfaction of the first two. It was law that the children’s best interests were served by being raised by their parents. Now, if the guardians can afford better schools or better clothes, or better opportunities, or live in a nicer home in a nicer neighborhood, parents have little chance of proving the upheaval and disruption associated with ending the appointment of the Kinship Guardian is in in the children’s best interests. This change puts all kinship caregivers on equal footing with parents when it comes to ending the appointment of Kinship Guardians, and the Kinship Guardianship Act has lost its direction.

When it comes to the safety and well-being of children, navigating this changing system can be tricky and the stakes couldn’t be higher. Sandia Family Law has extensive experience in all aspects of Kinship Guardianship cases, so please call us to put our knowledge and experience to work for you in anxious and frightening times.

Related Posts
  • Grandparents and Kinship Rights Read More
  • Grandparent "Rights" Read More