2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 5 - Adoptions › Section 32A-5-35 - Open adoptions.

A. The parents of the adoptee and the petitioner may agree to contact between the parents and the petitioner or contact between the adoptee and one or more of the parents or contact between the adoptee and relatives of the parents. An agreement shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption. The agreement may also include contact between siblings and the adoptee based on a finding that it is in the best interests of the adoptee and the adoptee's siblings and a determination that the siblings' parent, guardian or custodian has consented to the agreement. The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents' relatives or the adoptee's siblings and the petitioner or visitation between the parents or the parents' relatives or the adoptee's siblings and the adoptee. An agreement entered into pursuant to this section shall be considered an open adoption.
B. The court may appoint a guardian ad litem for the adoptee. The court shall adopt a presumption in favor of appointing a guardian ad litem for the adoptee when visitation between the biological family and the adoptee is included in an agreement; however, this requirement may be waived by the court for good cause shown. When an adoptive placement is made voluntarily through an agency or pursuant to Section 32A-5-13 NMSA 1978, the court may, in its discretion, appoint a guardian ad litem. If the child is fourteen years of age or older, the court may appoint an attorney for the child. In all adoptions other than those in which the child is placed by the department, the court may assess the parties for the cost of services rendered by the guardian ad litem or the child's attorney. The duties of the guardian ad litem or child's attorney end upon the filing of the decree, unless otherwise ordered by the court.
C. In determining whether the agreement is in the adoptee's best interests, the court shall consider the adoptee's wishes, but the wishes of the adoptee shall not control the court's findings as to the best interests of the adoptee.
D. Every agreement entered into pursuant to provisions of this section shall contain a clause stating that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee.
E. The court shall retain jurisdiction after the decree of adoption is entered, if the decree contains an agreement for contact, for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section. The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the adoptee's best interests.
History:
1978 Comp., § 32A-5-35, enacted by Laws 1993, ch. 77, § 162; 1995, ch. 206, § 41; 2001, ch. 162, § 8; 2005, ch. 189, § 68; 2009, ch. 239, § 57.
ANNOTATIONS
The 2009 amendment,
effective July 1, 2009, in Subsection A, added the third sentence; and in the fourth sentence, in two places, after "parent's relatives", added "or the adoptee's siblings".
Applicability.
— Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 2005 amendment,
effective June 17, 2005, in Subsection A, provided that an agreement entered into pursuant to the is section shall be considered an open adoption; in Subsection B, provided that the court shall adopt a presumption in favor of appointing a guardian ad litem; that the requirement that the court adopt the presumption may be waived for good cause; that if the child is fourteen years of age or older, the court may appoint an attorney for the child; that in adoptions other than those in which the child is placed by the department, the court may assess the parties costs for the services of the child's attorney and that the duties of the child's guardian ad litem or attorney end upon the filing of the decree; and deleted the former provision in Subsection D that this section does not apply to a biological parent who has voluntarily relinquished parental rights and consented to the adoption.
The 2001 amendment,
effective June 15, 2001, in Subsection B, substituted "included in an agreement" for "contemplated" in the second sentence and added the third sentence; added the last sentence of Subsection D; and inserted "if the decree contains an agreement for contract" in Subsection E.
The 1995 amendment,
effective July 1, 1995, in Subsection D, made a minor stylistic change and substituted "terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody" for "terms of the agreement after the entry of the decree of adoption shall not affect the validity of the adoption or the custody".
Formal agreement required.
— Open adoption provided by this section requires a formal agreement between birth parents and prospective adoptive parents.
Vigil v. Fogerson
, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186.