Guardianship Law in New Mexico
U.S. Territorial Period Forward

by Robert Greene

From the New Mexico Genealogist, March 1997.

Highlights of New Mexico statutes pertaining to guardianship begin with the Kearny Code established 22 Sep 1846.

In Section 1 of the Guardianship code the father is the natural guardian. After his death, guardianship passes to the mother. If there are no parents, or if they are incompetent or unfit, the county prefect appoints a guardian.

The brief provisions in the Kearny Code were expanded 6 March 1897 with the general statute of compiled laws of New Mexico Territory. The provision relating to natural guardians is basically the same: it is specific on the continuation of court appointed guardians remaining in effect until age 21, male or female. Under a provision (1435), a minor under age 10 has a guardian appointed by the court unless a will provides otherwise. A minor over age 10, in the absence of a will provision, may choose another guardian. The court is then obliged to accept the minor's choice and supersede prior guardians. In all cases, the court has a duty to remove guardians for just cause. An estate beneficiary, if not the minor's parent, cannot be guardian. Wills can specify guardianship unless a successful challenge is made.

The New Mexico state statute of 11 Jun 1915 added additional provisions mostly related to the protection and security of the ward. The courts control, and the superintendency of the guardian continues until age 21. Under the state statute a minor upon reaching the age of 14 may choose his or her guardian if the last will and testament of the mother and father did not specify a guardian. If over age 10, a ward under guardianship of any person not the mother or father may change guardian as in the previous statutes. Persons having custody of minors for at least seven years may petition district or probate courts for the guardianship. The guardian has broad powers in the management of the minor's estate both for real and personal property. In all cases specific bonds are required for the ward's protection. The probate court appoints guardians for "idiots" and illegitimate children and for children whose relatives are too poor to provide. Welfare of minors is the sole consideration. The court also appoints a guardian if the parents are unfit or incompetent.

In 1925 the courts addressed the matter of guardianship in the case of illegitimacy, holding that the mother of the child is the natural guardian. Moral fitness is not an issue. The 1929 statutes continue with the same provisions as prior laws—expanding on the financial protection of the ward in regard to required bonds and proper accounting of the ward's estate, including rental of improved properties. In all cases the guardianship of men and women ceases upon marriage, regardless of the ward's age, but it does not declare the ward to be of legal age.

• Kearny Code 9/22/1846, Sections 1–7.
• New Mexico General Statutes 3/16/1897, Sections 1434–1442.
• New Mexico Statutes 6/11/1915, Sections 2554–2562, 2568, 2577, 2578, 2580, 2584, 2588.
• New Mexico General Statutes 1929; 62-101-107, 62-115, 62-124-136, 62-201.
• New Mexico Report Vol. 1-28, 1925, 260, 261 and 3,278.