2023 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 10B - Kinship Guardianship
Section 40-10B-5 - Petition; who may file; contents.
A. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by:
(1) a kinship caregiver;
(2) a caregiver, who has reached the age of twenty-one, 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 the age of fourteen;
(3) a caregiver designated formally or informally by a parent in writing if the designation indicates on its face that the parent signing understands:
(a) the purpose and effect of the guardianship;
(b) that the parent has the right to be served with the petition and notices of hearings in the action; and
(c) that the parent may appear in court to contest the guardianship; or
(4) a caregiver with whom the department has placed the child pursuant to the Children's Code.
B. A petition seeking the appointment of a guardian shall be verified by the petitioner and allege the following with respect to the child:
(1) facts that, if proved, will meet the requirements of Subsection B of Section 40-10B-8 NMSA 1978;
(2) the date and place of birth of the child, if known, and if not known, the reason for the lack of knowledge;
(3) the legal residence of the child and the place where the child resides, if different from the legal residence;
(4) the name and address of the petitioner;
(5) the kinship, if any, between the petitioner and the child;
(6) the names and addresses of the parents of the child;
(7) the names and addresses of persons having legal custody of the child;
(8) the existence of any matters pending involving the custody of the child;
(9) a statement that the petitioner agrees to accept the duties and responsibilities of guardianship;
(10) the existence of any matters pending pursuant to the provisions of Chapter 32A, Article 4 NMSA 1978 and, if so, a statement that the department consents to the relief requested in the petition;
(11) whether the child is an Indian child or there is reason to know that the child is an Indian child, and subject to provisions of the Indian Family Protection Act and, if so:
(a) the Indian child's tribe;
(b) the tribal affiliations of the Indian child's parents; and
(c) active efforts made to comply with the notice requirements pursuant to the Indian Family Protection Act, including results of the contact and the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian child's tribe shall be attached as exhibits to the petition; and
(12) other facts in support of the guardianship sought.
History: Laws 2001, ch. 167, § 5; 2015, ch. 28, § 1; 2022, ch. 41, § 69; 2023, ch. 90, § 23.
ANNOTATIONSCross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901 et seq.
The 2023 amendment, effective July 1, 2023, provided that a caregiver with whom the children, youth and families department has placed the child is authorized to file a petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act, and revised the required contents of a petition seeking the appointment of a guardian if the child is an Indian child; in Subsection A, added Paragraph A(4); and in Subsection B, Paragraph B(11), added a new Subparagraph B(11)(a), deleted former Subparagraph B(11)(b) and added Subparagraph B(11)(c).
The 2022 amendment, effective July 1, 2022, amended an existing provision that listed items of information that are required to be set forth in a petition seeking the appointment of a guardian to include whether the child is an Indian child or there is reason to know that the child is an Indian child, and subject to the provisions of the Indian Family Protection Act; and in Subsection B, Paragraph B(11), after "whether the child is", added "an Indian child or there is reason to know that the child is an Indian child, and", and after "provisions of the", deleted "federal Indian Child Welfare Act of 1978" and added "Indian Family Protection Act".
Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022.
The 2015 amendment, effective June 19, 2015, removed the requirement to state marital status of the child in a petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act and made technical corrections; in Subsection A, Paragraph (2), after the first occurrence of "reached", deleted "his twenty-first birthday" and added "the age of twenty-one", and after the second occurrence of "reached", deleted "his fourteenth birthday" and added "the age of fourteen"; in Subparagraph A(3)(b), after "that", deleted "he" and added "the parent"; in Subparagraph A(3)(c), after "that", deleted "he" and added "the parent"; in Subsection B, Paragraph (1), after "Section", deleted "8 of the Kinship Guardianship Act" and added "40-10B-8 NMSA 1978"; in Subsection B, Paragraph (3), after "where", deleted "he" and added "the child"; and deleted former Paragraph (4) of Subsection B, and redesignated the succeeding paragraphs accordingly.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. § 1901 et seq.) upon child custody determinations, 89 A.L.R.5th 195.
