If the parents are unable or unwilling to take care of their child, can a grandparent get actual custody?

By Mary Ann Burmester
January 12, 2017
If the parents are unable or unwilling to take care of their child, can a grandparent get actual custody?

Yes. We normally look at guardianship as opposed to custody. The word custody under New Mexico law really is used in parents getting divorced or parents who are not married. But the concept to the general public is, I want to be able to raise my grandchild. Their parents are unable or unwilling to do so, I don’t want my grandchild to go into foster care, I want to step up to the plate raise that child.

You can at that point petition the court. The parents are going to have to be notified of the court proceeding, and they have to have the opportunity to come in and express their wishes to the judge either in favour of the grandparents taking custody or raising the grandchild or opposing it. If the parents really are unable to take care of that child, then the grandparents can petition the court, present their case. If they convince the judge that that's best for the child, then they can go on and raise that child.


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 www.nmdivorcecustody.com.

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January 12, 2017
Categories:  FAQs

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