2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 10B - Kinship Guardianship
Section 40-10B-6 - Service of petition; notice; parties.
A. The court shall set a date for hearing on the petition, which date shall be no less than thirty and no more than ninety days from the date of filing the petition.
B. The petition and a notice of the hearing shall be served upon:
(1) the children, youth and families department if there is any pending matter relating to the child pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978;
(2) the child if the child has reached the age of fourteen;
(3) the parents of the child;
(4) a person having custody of the child or visitation rights pursuant to a court order; and
(5) if the child is an Indian child as defined in the federal Indian Child Welfare Act of 1978, the appropriate Indian tribe and any "Indian custodian", together with a notice of pendency of the guardianship proceedings, pursuant to the provisions of the federal Indian Child Welfare Act of 1978.
C. Service of process required by Subsection A of this section shall be made in accordance with the requirements for giving notice of a hearing pursuant to Subsection A of Section 45-1-401 NMSA 1978.
D. The persons required to be served pursuant to Subsection B of this section have a right to file a response as parties to this action. Other persons may intervene pursuant to Rule 1-024 NMRA.
History: Laws 2001, ch. 167, § 6; 2015, ch. 28, § 2.ANNOTATIONS
Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901 et seq.
For service of process forms, see Civil Forms 4-206, 4-209 and 4-209B NMRA.
The 2015 amendment, effective June 19, 2015, amended the process for obtaining a court hearing; in Subsection A, after "A.", deleted "At the time of filing the petition, the petitioner shall obtain an order of the court setting" and added "The court shall set"; and in Subsection B, Paragraph (2), after "if", deleted "he" and added "the child", and after "reached", deleted "his fourteenth birthday" and added "the age of fourteen".
Procedural due process denied. — Where a grandparent filed a petition for guardianship; the matter was resolved when the grandparent and the parents of the child reached a settlement agreement; respondent was a parent of the child; when the other parent breached the settlement agreement, the grandparent, without filing a new petition for guardianship, prepared a guardianship order; the district court signed the guardianship order in an ex parte proceeding; and no notice was given to respondent and no hearing was scheduled or held on the matter, respondent was denied procedural due process. Burris-Awalt v. Knowles, 2010-NMCA-083, 148 N.M. 616, 241 P.3d 617.