Custody

New Mexico law says there is an assumption (“presumption”) that joint custody between the parents is in the child’s best interest when a court is making a ruling about custody for the first time.¹

If the parents are unwilling or unable to have custody, then the judge may grant custody to a non-parent. When custody is granted to a non-parent, it is called “kinship guardianship.” The judge can grant kinship guardianship to:

• an adult who has been living with and caring for the child, if that adult is:
  • a relative of the child;
  • a godparent;
  • a member of the child’s tribe or clan; or
  • an adult with whom the child has a significant bond;
• a caregiver chosen by a parent in writing, as long as the writing shows that the parent understands:
  • the purpose and effect of the guardianship;
  • that the parent has the right to be served with any petitions that are filed relating to the child; and
  • that the parent may appear in court to challenge the guardianship;
• a caregiver with whom the child has been placed by the Children, Youth and Families Department; or
• if the child is 14 years old or older, a caregiver who:
  
  • is 21 years old or older; and
  • has been nominated by the child.²

¹ N.M. Stat. § 40-4-9.1(A)
² N.M. Stat. §§ 40-10B-3; 40-10B-5(A)