As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In a recent, and rather convoluted case, Freedom C. v. Julie Ann D., 2011-NMCA-040, cert. gran., the New Mexico Court of Appeals rejected use of the Kinship Guardianship Act, NMSA 40-10B-1 et seq., by grandparents living with a parent to divest the other parent of his or her rights.
The case involved two Parents who lacked means and resources to care for their child, a Father with immigration issues due to an expired student Visa, and Grandparents who had lived with and financially supported Child for his entire life. At one point in the convoluted proceedings, the trial court entered an order granting sole legal and physical custody of child to the maternal Grandparents, which was later amended to temporary sole legal and primary physical custody. The court also found that Father's immigration status was relevant to custody, and ordered Father to execute releases so Grandparent's counsel could obtain Father's immigration records from the government.
Thereafter, Father was detained by immigration officials and confined at at a detention facility in El Paso, Texas pending deportation. Then Grandparents filed a petition for guardianship and custody of Child, under the Kinship Guardianship. Upon his release from detention, Father challenged the Grandparents' petition. After an evidentiary hearing, the trial court found Father's testimony that his immigration issues had been resolved "totally incredible," and that the requirements of the Act were met, including that Mother had consented to the guardianship, Child was dependent on Grandparents, and Parents were unable at this time to adequately care for Child. The trial court also conditioned Father's future visitation on additional release of immigration information access.
On review, the Court of Appeals rejected the conclusion that the requirements of the Act were met. Only one parent had consented, and the rights of neither parent had been previously terminated. See Sec. 40-10B-8(B)(1), (2). Although the Child had resided with the grandparents, it was always with Mother as well, while the Act requires that the child reside "with the petitioner without the parent for a period of ninety days." Id.(3) (emphasis added).
The Court also rejected Grandparent's argument that Section 8(B)(1), which requires that "a parent ... has consented," should be interpreted to require only one parent to consent, over the objection of the other parent. Besides the facts that termination "represents very serious consequence" and elsewhere the act emphasizes the desire to have both parents involved in a child's life, there was also a equity issue. Specifically, "this was not a case in which the parents having legal custody left a child in the care of someone else for the ninety-day period," and there is no indication the Legislature intended that one unfit parent be able to thereafter move in with the Kinship Guardian and Child, and "utilize the Act to unfairly engage in in-the-home, continual, and personal parenting of the child to the exclusion of the other parent."
Finally, the Court expressed "concern about the breadth of the order" as to immigration records, and the resultant "invasion into a privacy interest Father may well have." However, it did not reverse or remand as to that issue.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
