HB0120

HOUSE BILL 120

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Conrad James

AN ACT

RELATING TO FAMILIES; CREATING A PROCEEDING FOR ADULT CHILDREN TO PETITION FOR VISITATION WITH A PARENT FOR WHOM A GUARDIAN HAS NOT BEEN APPOINTED; REQUIRING GUARDIANS TO NOTIFY FAMILY MEMBERS OF THE HOSPITALIZATION OR DEATH OF A PROTECTED PERSON AND OF FUNERAL ARRANGEMENTS FOR AND FINAL RESTING PLACE OF A PROTECTED PERSON; SPECIFYING DUTIES OF A GUARDIAN REGARDING VISITATION OF A PROTECTED PERSON; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 6 of this act may be cited as the "Adult Child Visitation Privileges Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Adult Child Visitation Privileges Act:

A. "adult child" means an adult who has attained the age of eighteen and who is the biological or adopted child of a parent;

B. "petitioner" means an adult child who petitions for visitation with the adult child's parent; and

C. "visitation" means an in-person meeting or a telephonic, mail or electronic communication.

SECTION 3. [NEW MATERIAL] PETITION TO COMPEL VISITATION.--

A. An adult child of a parent for whom a guardian has not been appointed may petition the district court in the county where the adult child's parent resides, or can be found, for an order to compel visitation with the petitioner's parent.

B. The petition shall state, to the extent known to the petitioner:

(1) the parent's current address or location;

(2) the condition of the parent's mental and physical health;

(3) the nature of the visitation sought;

(4) efforts made by the petitioner to obtain visitation with the parent;

(5) whether the parent has a condition that affects the parent's ability to make and communicate a decision as to visitation; and

(6) the names and addresses of the parent's:

(a) spouse;

(b) adult children;

(d) parents;

(e) siblings; and

(f) guardian, if any.

C. Service of the petition shall be made by:

(1) delivering a copy of the petition to the parent wherever the parent may be found or by leaving the petition with a person over fifteen years old residing at the usual place of abode of the parent; and

(2) mailing a copy of the petition via registered or certified mail to the persons identified, at the addresses set forth, in the petition pursuant to Paragraph (6) of Subsection B of this section.

SECTION 4. [NEW MATERIAL] INVESTIGATION.--

A. Upon receipt of a petition for an order to compel visitation, the court shall appoint an independent investigator to conduct an investigation and make written findings in a report to the court to assist the court in determining whether the petitioner's parent has sufficient capacity to make and communicate a decision as to visitation and desires visitation.

B. In conducting the investigation, the independent investigator shall interview, or show good cause for not interviewing, the following persons:

(1) each petitioner;

(2) the parent who is the subject of the petition;

(3) the parent's spouse;

(4) the parent's adult children;

(5) the parent's adult grandchildren;

(6) the parent's parents;

(7) the parent's siblings;

(8) the parent's guardian, if any; and

(9) the parent's close friends, if known.

C. The independent investigator may conduct interviews telephonically or by video conference and shall not be paid or reimbursed for out-of-state travel to conduct interviews. The investigation shall be completed and the written report tendered to the court within twenty-one days following the investigator's appointment.

D. The investigator's report shall be filed with the court, and the court shall mail a copy to the petitioner, the petitioner's parent and all other persons served with the petition pursuant to Paragraph (6) of Subsection B of Section 3 of the Adult Child Visitation Privileges Act and their counsel.

E. The investigator's report shall be confidential and not disclosed, except as provided in Subsection D of this section.

F. If an investigation report involving the same parties has been filed in the twelve months preceding the filing of the instant petition, the court may determine, on good cause shown, that another investigation is not necessary or that a more limited investigation is sufficient.

SECTION 5. [NEW MATERIAL] HEARING.--A hearing on the petition shall be set no sooner than fourteen calendar days following the filing of the investigator's report. Notice of the hearing shall be mailed to the persons served with the petition pursuant to Paragraph (6) of Subsection B of Section 3 of the Adult Child Visitation Privileges Act.

SECTION 6. [NEW MATERIAL] DISPOSITION.--

A. In ruling on the petition, the court shall determine whether the petitioner's parent has sufficient capacity to make and communicate a decision as to visitation. A determination by the court regarding the parent's capacity shall not be admissible as evidence in any other proceeding.

B. The court shall grant reasonable visitation if:

(1) the petitioner's parent has sufficient capacity to make and communicate a decision regarding visitation and expresses a desire for visitation; or

(2) the petitioner's parent lacks capacity to make and communicate a decision regarding visitation, but the court finds that visitation would be in the best interest of the parent, based upon the following:

(a) the relationship between the petitioner and the parent;

(b) statements made by the parent expressing a desire for visitation;

(d) the investigator's report.

C. The court may deny the petition for an order to compel visitation if the petitioner's parent has sufficient capacity to make and communicate a decision regarding visitation and does not desire visitation.

D. The court may appoint counsel to represent the petitioner's parent.

E. The court shall require the petitioner to pay the reasonable fees and expenses of the independent investigator and of counsel appointed to represent the petitioner's parent.

F. Upon motion of the petitioner, the court may enter an order enjoining the change of a parent's residence to a location outside the jurisdiction of the court for the duration of the proceedings, unless such change of residence is for the purpose of receiving health care treatment or services that are medically necessary for the parent or for such other good cause shown.

SECTION 7. A new section of Chapter 45, Article 5 NMSA 1978 is enacted to read:

"[NEW MATERIAL] SPECIFIC DUTIES OF GUARDIAN--NOTICE TO FAMILY MEMBERS--ACCESS TO VISITATION.--

A. A guardian shall, as soon as reasonably possible, notify the following persons in the event of death or hospitalization or hospice care of a protected person under the guardian's care, custody or control:

(1) the protected person's spouse;

(2) the protected person's adult children;

(3) the protected person's adult grandchildren;

(4) the protected person's parents; and

(5) the protected person's siblings.

B. In the case of the death of the protected person, the guardian shall, as soon as reasonably possible, inform the persons listed in Paragraphs (1) through (5) of Subsection A of this section of funeral arrangements for the protected person and of the location of the final resting place or intended final resting place of the protected person. If the protected person has, prior to a finding of incapacity and the appointment of a guardian, made specific decisions or directives to exclude any person from the protected person's funeral proceedings, a guardian shall not be required to inform such person of funeral arrangements or the final resting place or intended final resting place of the protected person.

C. If the protected person has sufficient capacity to make and communicate a decision as to visitation with the persons listed in Paragraphs (1) through (5) of Subsection A of this section, a guardian shall:

(1) allow reasonable visitation, if it is requested or agreed to by the protected person; or

(2) decline visitation, if it is requested or agreed to by the protected person.

D. If the protected person has, prior to a finding of incapacity and the appointment of a guardian, made specific decisions or directives regarding visitation by any person, a guardian shall permit or deny visitation following such decisions or directives of the protected person made while the protected person had capacity.

E. A guardian shall comply with an order entered by a district court regarding visitation of a protected person in a proceeding pursuant to the Adult Child Visitation Privileges Act.

F. For purposes of this subsection, "visitation" means an in-person meeting or a telephonic, mail or electronic communication."

SECTION 8. Section 45-5-313 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-313, as amended) is amended to read:

"45-5-313. PROCEEDINGS SUBSEQUENT TO APPOINTMENT [VENUE].--

A. The court where the protected person resides has concurrent jurisdiction with the court that appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting, petitions for visitation by interested persons and other proceedings relating to the guardianship.

B. Subject to the transfer provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdication Act, if the court located where the protected person resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interests of the protected person. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed."

SECTION 9. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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