What form do I use to file a kinship guardianship petition in New Mexico?

The Petition to Appoint Kinship Guardian(s), Form 4A-501, a statewide, Supreme Court-approved bilingual form for the Kinship Guardianship Act track. It is filed with companion forms such as the Kinship Guardianship Information Sheet, Form 4A-517, in the district court of the county where the child legally resides, and the court's form controls over any draft.

How long can a temporary guardian serve in New Mexico?

Under the Kinship Guardianship Act, a temporary guardian may serve for not more than 180 days, or until the case is decided on the merits, whichever occurs first, and the motion must be heard within 20 days of filing. Under the Uniform Probate Code track, a temporary guardian's authority may not last longer than six months.

Who must be notified of a New Mexico kinship guardianship petition?

Notice goes to the parents, the child if 14 or older, anyone with custody or a court-ordered visitation right, the Children, Youth and Families Department if a Children's Code case is pending, and the tribe and any Indian custodian if the child is or may be an Indian child. The court sets the hearing no less than 30 and no more than 90 days after the petition is filed.

Can a New Mexico child object to or nominate their own guardian?

A child who has reached 14 may nominate a guardian, and the court must appoint that person unless doing so would be contrary to the child's best interest. A child 14 or older who files a timely written objection generally blocks the appointment, unless the court makes a specific finding that appointment is nonetheless in the child's best interest.

Does a New Mexico kinship guardian need to post a bond?

No. No bond is required for a kinship guardian of the person, and a certified copy of the appointment order proves authority without letters of guardianship even issuing. A bond applies only if the child's property or estate is large enough to require a separate conservator, and even then the court may waive it only if it finds a bond is not necessary to protect the child's interests, never for a paid professional conservator.

Will New Mexico require a background check or home study before appointing a guardian?

No statewide statute requires a criminal-history background check, a home study, or a training course for a kinship guardian or a Uniform Probate Code guardian of a minor. A guardian ad litem is required only if a parent participates in the case and objects to the appointment, or if a guardian contests a parent's motion to revoke.

Does a New Mexico guardianship end a parent's legal rights?

No. A kinship guardianship does not terminate a parent's legal rights and is not adoption; a kinship guardian cannot consent to the child's adoption. Any person, including a child 14 or older, may later move to revoke the guardianship based on a change in circumstances and the child's best interest.

Is there a way to get authority over a New Mexico child without going to court?

A parent may delegate parental powers over a child's care, custody, or property to another person by an acknowledged power of attorney, for a period not exceeding six months, except the power to consent to the child's marriage or adoption. It is a private, notarized document rather than a court filing, so it does not fit every situation a guardianship covers.

What if the disagreement in New Mexico is between the child's own parents rather than about their ability to care for the child?

A kinship or Uniform Probate Code guardianship is not the right tool for a disagreement between two fit parents over where a child lives or who decides for them; that belongs in a custody or parenting-time case rather than a guardianship petition.

New Mexico Guardianship of a Minor Petition

Q: Does New Mexico have more than one way to get guardianship of a minor?

Yes. Most relative or caregiver petitions use the Kinship Guardianship Act track. Under a separate Uniform Probate Code track, a parent may appoint a guardian by will or signed writing, and a court may appoint one only if all parental rights of custody have, by circumstances or prior court order, been terminated or suspended. A guardian cannot be appointed under the Kinship Guardianship Act for a child who already has a Uniform Probate Code guardian.

New Mexico runs two separate guardianship tracks for a minor: the Kinship Guardianship Act, filed in district court on statewide Form 4A-501 with a temporary guardian capped at 180 days, and a Uniform Probate Code track in which a court may appoint a guardian only if all parental rights of custody have, by circumstances or prior court order, been terminated or suspended.

Find out where you stand in New Mexico

Where are you with the guardianship?

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Introduction

New Mexico has two separate minor-guardianship statutes. Most relative or caregiver petitions use the Kinship Guardianship Act, filed in the district court of the county where the child legally resides on the statewide Petition to Appoint Kinship Guardian(s), Form 4A-501; the court's form controls over any draft. Under a separate Uniform Probate Code track, a parent may appoint a guardian by will or signed writing, and a court may appoint one only if all parental rights of custody have, by circumstances or prior court order, been terminated or suspended; a kinship guardian cannot be appointed if a Uniform Probate Code guardian already exists. A temporary kinship guardian may serve not more than 180 days or until the case is decided, whichever is first; a Uniform Probate Code temporary guardian, up to six months. The court sets a hearing 30 to 90 days after filing, with notice to the parents, the child if 14 or older, and others the Act lists, including the tribe if the child is or may be an Indian child. A child of 14 or older may nominate or object to the proposed guardian. No background check, investigator's report, or training is required; under the Kinship Guardianship Act, a guardian ad litem must be appointed if a parent objects. A guardian of the person posts no bond. A parent can instead delegate authority by power of attorney for up to six months. This guardianship does not end a parent's legal rights and is not adoption. If the child is in danger, contact the Children, Youth and Families Department or seek a protective order. Attorney review is available.

Key Things to Know

1
File the Petition to Appoint Kinship Guardian(s), Form 4A-501, the statewide mandatory form for New Mexico's Kinship Guardianship Act track, in the district court of the county where the child legally resides; the court's form controls over any draft.
2
New Mexico also has a separate Uniform Probate Code guardianship track, under which a parent may appoint a guardian by will or signed writing, and a court may appoint one only if all parental rights of custody have, by circumstances or prior court order, been terminated or suspended. A Kinship Guardianship Act guardian cannot be appointed for a child who already has a Uniform Probate Code guardian.
3
A temporary kinship guardian may serve for not more than 180 days, or until the case is decided on the merits, whichever occurs first; the motion must be heard within 20 days of filing, and an ex parte order triggers a hearing within 10 days of any objection.
4
The court sets the hearing 30 to 90 days after filing. Notice goes to the parents, the child if 14 or older, anyone with custody or court-ordered visitation, the Children, Youth and Families Department if a Children's Code case is pending, and the tribe and any Indian custodian if the child is or may be an Indian child; a guardian may be appointed only with a parent's written consent, after a parent's rights were terminated or suspended by prior court order, or after the child has lived with the petitioner 90 or more days and the parent is unwilling or unable to provide care, or there are extraordinary circumstances, proved by clear and convincing evidence.
5
A child who has reached 14 may nominate their own guardian, and the court must appoint that nominee unless it finds the nomination contrary to the child's best interest; a child 14 or older who files a timely written objection generally blocks the appointment unless the court specifically finds appointment is nonetheless in the child's best interest.
6
New Mexico does not require a background check, a court investigator's report, or a training course for a kinship guardian. A guardian ad litem must be appointed only if a parent participates in the case and objects, or if a guardian contests a parent's motion to revoke; no bond is required for a guardian of the person, though a conservator of the child's estate may need one.
7
This guardianship does not terminate the parents' legal rights and is not adoption; a kinship guardian cannot consent to the child's adoption, and any person, including a child 14 or older, may later ask the court to revoke the guardianship based on a change in circumstances and the child's best interest.

Key decisions before you file

Before you file a Guardianship of a Minor Petition in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Guardianship of a Minor Petition guide walks through them.

Open the Guardianship of a Minor Petition guide

Customize your Guardianship of a Minor Petition Template with DocDraft

STATE OF NEW MEXICO IN THE DISTRICT COURT OF [COUNTY] COUNTY

IN THE MATTER OF THE KINSHIP GUARDIANSHIP OF [CHILD FULL NAME], A MINOR CHILD

Case No. [CASE NUMBER]

PETITION TO APPOINT KINSHIP GUARDIAN(S) (Prepared to accompany Supreme Court-approved Form 4A-501, Rule 1-156 NMRA; the court's mandatory form controls)

PETITIONER Petitioner [PETITIONER FULL NAME], residing at [PETITIONER ADDRESS], respectfully petitions this court for appointment as kinship guardian of the minor child named below under the Kinship Guardianship Act, NMSA 1978 Chapter 40, Article 10B. Petitioner's relationship to the child is [RELATIONSHIP TO CHILD].
THE CHILD Name: [CHILD FULL NAME] Date of birth: [CHILD DATE OF BIRTH] Current residence: [CHILD CURRENT ADDRESS] The child has resided with petitioner since [DATE CHILD BEGAN RESIDING WITH PETITIONER].
PARENTS Mother: [MOTHER FULL NAME], residing at [MOTHER ADDRESS OR WHEREABOUTS UNKNOWN]. Father: [FATHER FULL NAME], residing at [FATHER ADDRESS OR WHEREABOUTS UNKNOWN]. Status of each parent, including any written consent: [STATUS OF EACH PARENT]. Grounds for appointment under NMSA 1978 section 40-10B-8(B): [FACTS SUPPORTING THE GROUNDS FOR APPOINTMENT].
WHY GUARDIANSHIP IS NEEDED Appointment of a kinship guardian is necessary because [FACTS SHOWING WHY GUARDIANSHIP IS NEEDED, INCLUDING THE PARENTS' CURRENT ABILITY TO CARE FOR THE CHILD]. Pending Children, Youth and Families Department case: [CYFD CASE NUMBER OR NONE].
CHILD'S NOMINATION Nomination by the child, if 14 or older, on Nomination of Kinship Guardian(s), Form 4A-506: [NAME OF PERSON NOMINATED OR NONE].
PROPOSED GUARDIAN'S QUALIFICATIONS Petitioner is [AGE] years old, resides at the address above, and is able to provide for the child's [HEALTH, EDUCATION, AND SUPPORT NEEDS] because [FACTS SHOWING PETITIONER'S QUALIFICATIONS].
SCOPE OF GUARDIANSHIP REQUESTED Petitioner requests appointment as kinship guardian of the person of the child under the Kinship Guardianship Act.
BOND Petitioner requests that no bond be required, as the Kinship Guardianship Act contains no bond requirement.
TEMPORARY GUARDIANSHIP Motion to Appoint Temporary Kinship Guardian(s) filed separately: [YES OR NO].
RELIEF REQUESTED Petitioner asks the court to: a. Set this matter for hearing and direct that notice issue to the parents, the child if 14 or older, and all other persons entitled to notice under the Kinship Guardianship Act; b. Appoint petitioner kinship guardian of the child; c. Issue Letters of Guardianship; and d. Grant such other relief as the court deems proper.

VERIFICATION I, [PETITIONER FULL NAME], declare under penalty of perjury under the laws of the State of New Mexico that I have read the foregoing petition and know its contents, and that the matters stated are true of my own knowledge, except as to matters stated on information and belief, and as to those matters I believe them to be true.

Executed on [DATE] at [CITY, NEW MEXICO].

[SIGNATURE] [PETITIONER FULL NAME]

New Mexico Requirements for Guardianship of a Minor Petition

Mandatory Petition on Form 4A-501
A New Mexico kinship guardianship is filed on the Petition to Appoint Kinship Guardian(s), Form 4A-501, a statewide mandatory form under the Kinship Guardianship Act, in the district court of the county where the child legally resides (NMSA 1978 section 40-10B-4).
Two Separate Guardianship Tracks
New Mexico also has a separate Uniform Probate Code guardianship track, under which a parent may appoint a guardian by will or signed writing, and a court may appoint one only if all parental rights of custody have, by circumstances or prior court order, been terminated or suspended; a Kinship Guardianship Act guardian cannot be appointed for a child who already has a Uniform Probate Code guardian (NMSA 1978 section 45-5-202; section 45-5-204(A); section 40-10B-8(B)(4)).
180-Day Temporary Kinship Guardian
The court may appoint a temporary kinship guardian for not more than 180 days, or until the case is decided on the merits, whichever occurs first; the motion must be heard within 20 days of filing, and an ex parte order triggers a hearing within 10 days of any objection (NMSA 1978 section 40-10B-7).
30-to-90-Day Notice and Hearing Window
The court sets a hearing date no less than 30 and no more than 90 days from the filing of the petition, with notice to the parents, the child if 14 or older, anyone with custody or court-ordered visitation, the Children, Youth and Families Department if a Children's Code case is pending, and the tribe and any Indian custodian if the child is or may be an Indian child (NMSA 1978 section 40-10B-6).
Grounds for Appointing a Kinship Guardian
A kinship guardian may be appointed only if a living parent has consented in writing and not withdrawn consent, a parent's rights have been terminated or suspended by prior court order, or the child has resided with the petitioner for 90 or more days while the parent is currently unwilling or unable to provide adequate care, or there are extraordinary circumstances, proved by clear and convincing evidence (NMSA 1978 section 40-10B-8(B), (C)).
Child's Nomination on Form 4A-506 at Age 14
A child who has reached 14 may nominate their own kinship guardian on the Nomination of Kinship Guardian(s), Form 4A-506, and the court must appoint that nominee unless it finds the nomination contrary to the child's best interest (NMSA 1978 section 40-10B-11).
Guardian Ad Litem Mandatory If a Parent Objects
New Mexico requires no background check, home study, or training course for a kinship guardian. A guardian ad litem must be appointed only if a parent participates in the case and objects to the appointment, or if a guardian contests a parent's motion to revoke; where appointed, the guardian ad litem must conduct a diligent investigation, including a home visit (NMSA 1978 section 40-10B-9, section 40-10B-10).
No Bond for a Guardian of the Person
No bond is required for a kinship guardian of the person, and a certified copy of the appointment order is sufficient proof of authority without letters of guardianship even issuing; a bond is required only for a conservator of the child's estate, and the court may waive it only on a finding that a bond is not necessary to protect the child's interests, never for a paid professional conservator (NMSA 1978 section 40-10B-13(C); section 45-5-411).
Guardianship Does Not Terminate Parental Rights
A New Mexico kinship guardianship does not terminate a parent's legal rights and is not adoption; a kinship guardian's authority excludes the right to consent to the child's adoption, and any person, including a child 14 or older, may later move to revoke the guardianship based on a change in circumstances and the child's best interest (NMSA 1978 section 40-10B-12; section 40-10B-13(A)).

Find out where you stand in New Mexico

Introduction

Key Things to Know

Key decisions before you file

Customize your Guardianship of a Minor Petition Template with DocDraft

New Mexico Requirements for Guardianship of a Minor Petition

Mandatory Petition on Form 4A-501

Two Separate Guardianship Tracks

180-Day Temporary Kinship Guardian

30-to-90-Day Notice and Hearing Window

Grounds for Appointing a Kinship Guardian

Child's Nomination on Form 4A-506 at Age 14

Guardian Ad Litem Mandatory If a Parent Objects

No Bond for a Guardian of the Person

Guardianship Does Not Terminate Parental Rights

Frequently Asked Questions