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N.M. Stat.§ 40-10B-8

New Mexico Statutes

Chapter 40. Domestic Affairs

Article 10B. Kinship Guardianship


§ 40-10B-8. Hearing; elements of proof; burden of proof; judgment; child support


A. Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, the requirements of Subsection B of this section have been proved and the best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings or make any other disposition of the matter that will serve the best interests of the minor.


B. A guardian may be appointed pursuant to the Kinship Guardianship Act only if:


(1) a parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn;


(2) a parent of the child is living but all parental rights in regard to the child have been terminated or suspended by prior court order; or


(3) the child has resided with the petitioner without the parent for a period of ninety days or more immediately preceding the date the petition is filed and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance and supervision for the child or there are extraordinary circumstances; and


(4) no guardian of the child is currently appointed pursuant to a provision of the Uniform Probate Code.


C. The burden of proof shall be by clear and convincing evidence, except that in those cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, [FN1] the burden of proof shall be proof beyond a reasonable doubt.


D. As part of a judgment entered pursuant to the Kinship Guardianship Act, the court may order a parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment.


E. The court may order visitation between a parent and child to maintain or rebuild a parent-child relationship if the visitation is in the best interests of the child.


L. 2001, Ch. 167, § 8.


[FN1] 25 U.S.C.A. § 1901 et seq.