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The New Mexico Genealogical Society
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 lawsexpanding
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.
Abstracted from the following records at the New Mexico State Records Center and
Archives, Santa Fe, New Mexico:
- Kearny Code 9/22/1846, Sections 17.
- New Mexico General Statutes 3/16/1897, Sections 14341442.
- New Mexico Statutes 6/11/1915, Sections 25542562, 2568, 2577, 2578, 2580,
- 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.
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