How can a parent regain custody of their child and end the guardianship?

By Mary Ann Burmester
January 23, 2017
How can a parent regain custody of their child and end the guardianship?

The burden is on the parent to prove to the judge that the circumstances that existed, giving rise to the need for guardianship, are no longer there. Let me give you a few examples. What I see today is, a parent who is a very good parent – has a job, has a home, a decent standard of living – that person gets involved in a car accident and winds up getting addicted to opioids, to Oxycontin, and other heavy pain medications. When the prescription runs out, they sometimes turn to illegal drugs – heroin and meth are popular ones.

Now this person's life is shattered. They lose their job, they lose their home, they're not able to care for the child. The grandparents step in and are appointed the kinship guardian of the child, sometimes with the parents consent and sometimes over their objections. That parent who had the addiction issues, or lost their job and their home, has to convince the judge that they've dealt with their problems and they've been clean and sober. We look for a period of generally at least a year. They've maintained some sort of job, they have their own home, they've maintained appropriate contact with the child – which is a grey area, because you don’t want a parent who is high on prescription drugs, or any other type of drug, showing up around a four-year-old. On the other hand, if they see the child for a couple of hours each week – sometimes under the supervision of the grandparent or a friend – they've communicated with the child either by phone or by text messaging, they've provided some sort of financial support, doesn’t have to be formal child support, they're doing what they can to parent.

If their track record for a period of time shows that they've gotten their act together, they've recovered, and they really are able to parent that child safely, then the judge will end the guardianship and restore custodial rights to the parent. It's not an easy process, but it can be done.

Mary Ann Burmester is a family lawyer practicing in Albuquerque, New Mexico and has more than 25 years of experience in family law. To learn more about Mary and her firm, NM Divorce & Custody Law LLC, visit

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January 23, 2017
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