By Merri Rudd, appeared July 13, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: How does one appoint a guardian of a minor child in the event of a parent's untimely death? G.W., Albuquerque

If one parent dies, the other natural parent is usually the guardian of the minor child unless that parent is proved unfit or parental rights are terminated in a court proceeding.

If both parents have died, a person becomes the guardian of a minor either by: (1) parental appointment, or (2) upon appointment by the court.

New Mexico's Uniform Probate Code provides that the parent of an unmarried minor may appoint a guardian for a minor either in the parent's will, or another writing signed by the parent and attested by at least two witnesses.

If both parents are dead or incapacitated, or the surviving parent has no parental rights or is incapacitated, a parental appointment takes effect when the guardian files an acceptance in the district court that has jurisdiction over the matter.

If the parents never put their wishes in writing prior to their deaths, the district court can appoint a guardian. The court may also appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.

A parental appointment of a guardian has priority over a court-appointed guardian unless the parentally-appointed guardian does not accept the job within thirty days after notice of the guardianship proceeding.

The law gives minors age 14 or older some say-so about whom the court appoints as their guardian. The minor who is the subject of a parental appointment of a guardian may prevent the appointment or terminate it by filing in the court a written objection to the appointment before or after its acceptance. However, a minor's objection does not prevent the parental nominee or any other suitable person from being appointed by the court after a proper proceeding.

The court applies the "best interests of the minor" standard before appointing a guardian. The court will appoint a person nominated by the minor, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the minor.

New Mexico's laws contain a detailed court procedure that must be followed when seeking court appointment of a guardian for a minor.

Once a guardian accepts a parental nomination or is appointed by the court, the guardian has many powers and duties, similar to those of a parent. Unlike parents, however, guardians are not personally liable for the minors' expenses and are not liable to third parties for the minors' acts.

Sometimes a separate conservator is appointed by the district court to manage the minor's finances.

A related law is New Mexico's Kinship Guardianship Act (KGA), which states 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.

The KGA is intended for cases where a living 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. The Act sets out a specific legal proceeding for appointment of a kinship guardian, as well as the rights and duties of that person.

© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved