2023 New Mexico Statutes › Chapter 40 - Domestic Affairs › Article 10B - Kinship Guardianship › Section 40-10B-6 - Service of petition; notice; parties.

A. The court shall set a date for hearing on the petition, which date shall be no less than thirty and no more than ninety days from the date of filing the petition.
B. The petition and a notice of the hearing shall be served upon:
(1) the department if there is any pending matter relating to the child pursuant to the provisions of the Children's Code [Chapter 32A NMSA 1978];
(2) the child if the child has reached the age of fourteen;
(3) the parents of the child;
(4) a person having custody of the child or visitation rights pursuant to a court order; and
(5) if the child is an Indian child or there is reason to know the child is an Indian child subject to the provisions of the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], the appropriate Indian tribe and any "Indian custodian", together with a notice of pendency of the guardianship proceedings, pursuant to the provisions of the Indian Family Protection Act.
C. Service of process required by Subsection A of this section shall be made in accordance with the requirements for giving notice of a hearing pursuant to Subsection A of Section 45-1-401 NMSA 1978.
D. The persons required to be served pursuant to Subsection B of this section have a right to file a response as parties to this action. Other persons may intervene pursuant to Rule 1-024 NMRA.
History:
Laws 2001, ch. 167, § 6; 2015, ch. 28, § 2; 2022, ch. 41, § 70; 2023, ch. 90, § 24.
ANNOTATIONS
Cross references.
— For the federal Indian Child Welfare Act of 1978,
see
25 U.S.C. § 1901 et seq.
For service of process forms,
see
Civil Forms 4-206, 4-209 and 4-209B NMRA.
The 2023 amendment,
effective July 1, 2023, clarified language in the section; and in Subsection B, Paragraph B(1), after "provisions of", deleted "Chapter 32A, Article 4 NMSA 1978" and added "the Children's Code", in Paragraph B(5), after the second occurrence of "Indian child", deleted "as defined in the Children's Code" and added "subject to the provisions of the Indian Family Protection Act", and after "guardianship proceedings", added "pursuant to the provisions of the Indian Family Protection Act".
The 2022 amendment,
effective July 1, 2022, required, when a court sets a date for hearing on a petition seeking the appointment of a guardian, that the petition and notice of hearing be served, when the child is an Indian child or there is reason to know the child is an Indian child as defined in the Children's Code, on the Indian tribe and the child's parent or Indian custodian; and in Subsection B, Paragraph B(5), after the first occurrence of "Indian child", added "or there is reason to know the child is an Indian child", after "defined in the", deleted "federal Indian Child Welfare Act of 1978" and added "Children's Code", after "Indian tribe and", deleted "any" and added "the child's parent or", and after "guardianship proceedings", deleted "pursuant to the provisions of the federal Indian Child Welfare Act of 1978".
Applicability.
— Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022.
The 2015 amendment,
effective June 19, 2015, amended the process for obtaining a court hearing; in Subsection A, after "A.", deleted "At the time of filing the petition, the petitioner shall obtain an order of the court setting" and added "The court shall set"; and in Subsection B, Paragraph (2), after "if", deleted "he" and added "the child", and after "reached", deleted "his fourteenth birthday" and added "the age of fourteen".
Procedural due process denied.
— Where a grandparent filed a petition for guardianship; the matter was resolved when the grandparent and the parents of the child reached a settlement agreement; respondent was a parent of the child; when the other parent breached the settlement agreement, the grandparent, without filing a new petition for guardianship, prepared a guardianship order; the district court signed the guardianship order in an ex parte proceeding; and no notice was given to respondent and no hearing was scheduled or held on the matter, respondent was denied procedural due process.
Burris-Awalt v. Knowles
, 2010-NMCA-083, 148 N.M. 616, 241 P.3d 617.