2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Section 45-5-204 - Court appointment of guardian of minor; conditions for appointment.

A. The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.

B. A guardian, appointed as provided in Section 45-5-202 NMSA 1978, whose appointment has not been prevented or terminated under Section 45-5-203 NMSA 1978, has priority over any guardian who may be appointed by the court, but the court may proceed with another appointment upon a finding that the parental nominee has failed to accept the appointment within thirty days after notice of the guardianship proceeding.

C. If necessary, and upon appropriate petition or application, the court may appoint a temporary guardian, who shall have the full authority of a general guardian of a minor, but the authority of a temporary guardian may not last longer than six months. The appointment of a temporary guardian for a minor may occur even though the conditions described in Subsection A of this section have not been established.

History: 1953 Comp., § 32A-5-204, enacted by Laws 1975, ch. 257, § 5-204; 1995, ch. 210, § 53.

The 1995 amendment, effective July 1, 1995, in Subsection B, deleted "testamentary" preceding "guardian", substituted "Section 45-5-202 NMSA 1978" and "Section 45-5-203 NMSA 1978" for "Section 5-202" and "Section 5-203", respectively, substituted "parental nominee" for "testamentary guardian" and made stylistic changes; and added Subsection C.

Involuntary termination of custody. — Over objection of a parent, guardianship proceedings are not the proper means to involuntarily terminate a parent's right to custody of his or her children. In re Guardianship of Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133, 835 P.2d 849, cert. denied, Sabrina Mae D. v. Notrhcutt, 113 N.M. 744, 832 P.2d 1223.

Because whereabouts of mother were known and mother contested the appointment of grandparents as guardians, the district court erred in finding that her right to custody was "suspended by circumstances" under Subsection A and erred in appointing grandparents as guardians under provision of the Uniform Probate Code, Chapter 45 NMSA 1978. In re Guardianship of Ashleigh R., 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984, cert. denied, 132 N.M. 732, 55 P.3d 428.

"Suspended by circumstances" construed. — A parent's right to custody is not "suspended by circumstances" if in fact the parent has lawful custody, is present, and has not voluntarily relinquished physical custody of the child. In re Guardianship of Lupe C., 1991-NMCA-050, 112 N.M. 116, 812 P.2d 365.

Construction with Children's Code. — To read 45-5-204 NMSA 1978 of the Uniform Probate Code broadly to provide an alternate means of proceeding with respect to neglected children would dispense with the rights guaranteed to parents under the Children's Code, and would allow the district court to enter orders of guardianship unlimited in time, and not be subject to the requirement of periodic review. It also would not require efforts to remedy the causes of neglect and return the child to the child's home. In re Guardianship of Lupe C., 1991-NMCA-050, 112 N.M. 116, 812 P.2d 365.

Presumption that child should be in custody of natural parents. — The "parental right" doctrine creates a presumption that the welfare and best interests of the minor child will best be served in the custody of the natural parent and casts the burden of proving the contrary on the nonparent. Greene v. French, 1982-NMCA-027, 97 N.M. 493, 641 P.2d 524.

Best interest of the children is always a fundamental consideration in the determination of custody, no matter what the context. Greene v. French, 1982-NMCA-027, 97 N.M. 493, 641 P.2d 524.

Present parental rights must be based on current evidence. — The evidence must show the parent's ability or inability at the present time to take responsibility for her children. Evidence pertaining to past behavior is irrelevant to a finding of present fitness. Greene v. French, 1982-NMCA-027, 97 N.M. 493, 641 P.2d 524.

Agreements subject to judicial modification. — Agreements between parents and third parties regarding the guardianship, care, custody, maintenance or education of children are subject to judicial modification. In re Adoption of Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied, Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794.

Jurisdiction found. — Mother's voluntary placement of her child with grandparents in this state and allowing the child to remain in New Mexico for almost ten months prior to seeking her return, provided a proper basis for the court's determination that the child had a significant connection with this state so as to enable the court to exercise jurisdiction over the child. In re Guardianship of Sabrina Mae D., 1992-NMCA-050, 114 N.M. 133, 835 P.2d 849, cert. denied, Sabrina Mae D. v. Northcutt, 113 N.M. 744, 832 P.2d 1223.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Consideration and weight of religious affiliations in appointment or removal of guardian for minor child, 22 A.L.R.2d 696.

Function, power and discretion of court where there is testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

Right of putative father to custody of illegitimate child, 45 A.L.R.3d 216.

39 C.J.S. Guardian and Ward §§ 9, 10, 15.