What are “parental rights and responsibilities?” Is it the same thing as custody?
The Maine courts have replaced the term “custody” with the phrase “parental rights and responsibilities.” This term refers to the legal authority to care for a child and to make major decisions about the child’s life and wellbeing, such as where your child lives, his/her religious upbringing, healthcare, and education.1
1 M.R.S. 19-A § 1501(1)
What types of parental rights and responsibilities arrangements are there?
There are three basic arrangements for parental rights and responsibilities: shared, sole, and allocated.
Shared parental rights and responsibilities gives each parent an equal say in most or all of the decisions about the child’s wellbeing.1 That means parents have to make joint decisions about the major issues of the child’s life, like where the child will live and go to school. Parents who share parental rights and responsibilities have to keep each other informed about events or changes in the child’s life and consult each other, if possible, before making decisions related to raising the child. The child can live with one parent as the primary residence or the child’s residence can be split between both parents. The child’s time spent living at each parent’s house may not be equal.2
Sole parental rights and responsibilities means that one parent has the right to make all the decisions about the child’s wellbeing, and the child’s primary residence will be with that parent.3 The parent who is not granted sole rights and responsibilities still has to help pay for the child’s expenses and could be allowed to visit the child, but s/he is not allowed to make decisions about the child’s wellbeing. The judge will award sole parental rights and responsibilities if s/he believes shared parental rights and responsibilities might be harmful to the child. For example, the judge may award sole parental rights and responsibilities if one of the parents has been abusive.
Allocated parental rights and responsibilities means that the judge assigns each parent the right to make certain decisions about the child’s wellbeing.4 For example, one parent may be allowed to make all the decisions regarding the child’s religious upbringing, while the other parent may have the right to decide where the child goes to school. This type of arrangement is not common, but it is a possibility.
1 M.R.S. 19-A §1501(5)
2 M.R.S. 19-A § 1653(2)(D)(1)
3 M.R.S. 19-A § 1501(6)
4 M.R.S. 19-A § 1501(1)
Is there a difference between parental rights and responsibilities and visitation?
Visitation lets a parent visit with his/her child, but the parent doesn’t have the right to make major decisions about the child’s wellbeing. When the judge awards sole parental rights and responsibilities to one parent, the other parent will often get visitation rights. In cases where there has been domestic violence, the judge may allow the abusive parent visitation if safety precautions are taken. For example, the judge may order the visit to be supervised by another family member, or that the visit take place at a counselor’s office.1
1 M.R.S. 19-A § 1653(6)(B)
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to Maine Finding a Lawyer to seek out legal advice.
Who can get parental rights and responsibilities and/or visitation
Can a parent who has been violent get parental rights and responsibilities or visitation?
When making a decision on parental rights and responsibilities, the judge must consider any history of domestic violence or child abuse. The judge must also consider how the domestic violence affects the child emotionally and how it affects the child’s safety.1
However, a judge can let the child’s primary residence be with the abusive parent or let the abusive parent have visitation if safety measures for the child and abused parent are put in place.2 Examples of these safety measures include:
- requiring that the visits be supervised by a counselor, agency, or other responsible adult, with the abusive parent paying any fee;
- ordering that the exchange of the child take place in a protected location, supervised by a responsible adult;
- no overnight visits;
- ordering the abusive parent to go to counseling;
- ordering the abusive parent to not use alcohol or drugs during the visit and for 24 hours before the visit; and
- anything else that would protect the child and abused parent.3
The law is similar for a parent convicted of a child-related sexual offense, as defined by law in section (6-A)(A). The judge can only place the child with that parent or allow contact if the there are safety precautions in place. For certain sex offenses, though, the judge has to assume that no contact with that parent is in the child’s best interests but the parent can try to change the judge’s mind.4 Note: If you are worried about your child’s safety because the other parent has committed a child-related sexual offense or had or shared (disseminated) sexually explicit material, you could ask the judge to order a “forensic risk assessment,” which is performed by a licensed clinical social worker, psychologist, or psychiatrist. As part of this assessment, the forensic evaluator could interview both parents and have access to court documents, records of any interview with the child, and other relevant documents.5
1 M.R.S. 19-A § 1653(3)(L), (3)(M)
2 M.R.S. 19-A § 1653(6)(A)
3 M.R.S. 19-A § 1653(6)(B)
4 M.R.S. 19-A § 1653(6-A)(A), (6-A)(B), (6-A)(C), (6-B)
5 M.R.S. 19-A § 1653(6-C)
If my child was conceived from a sexual assault, can the offender's rights be terminated?
The mother of the child, or her parent/guardian if the mother is a minor, can file a petition in district court to terminate the offender’s parental rights and responsibilities if the child was conceived due to an act of gross sexual assault, sexual abuse of minors, or incest in Maine or a similar crime in another state. Whether the judge must terminate the rights or whether the judge has the option (discretion) to do so depends on whether there was a criminal conviction for the sexual assault or not.
If the offender was criminally convicted of any of those crimes, the judge must terminate the parent’s parental rights and responsibilities when requested.1 The only exception to this is when a parent/guardian is filing the petition on behalf of a minor victim of statutory rape (gross sexual assault section (1)(B)). In this case, the judge can deny the petition and not terminate the offender’s parental rights if:
- the victim is at least 12 years old;
- the victim says that the sexual act was “consensual;” and
- the victim doesn’t want the offender’s rights to be terminated.2
If the offender was not criminally convicted of any of the above-mentioned crimes, the judge can terminate the offender’s parental rights and responsibilities if you prove with clear and convincing evidence that the offender committed an act of sexual violence that resulted in the child being conceived.3 If the judge does not terminate the offender’s rights, the judge must take into consideration the following factors when deciding whether to order parent-child contact:
- whether the sexual assault indicates that there may be safety concerns for the child;
- whether it would be in the best interest of the child for the parent who committed sexual assault to receive any specific counseling or treatment; and
- any effect contact between the parents would have on the parent who was a victim of sexual assault.4
The judge will include conditions in the order that are appropriate to meet the child’s best interest while minimizing the effect on the parent who experienced the sexual assault, such as limiting the contact between the victim and the offender, and limiting or putting specific conditions on parent-child contact, including supervision.4
1 M.R.S. 19-A § 1658(1), (2)(A), (3-A)(A)
2 M.R.S. 19-A § 1658(1), (2)(A), (3-A)(B)(1)
3 M.R.S. 19-A § 1658(3-A)(A), (4)
4 M.R.S. 19-A § 1653(6-D)
If my child was conceived due to nonconsensual removal of a condom, can the offender get parental rights?
If your child was conceived due to nonconsensual removal of a condom or due to tampering with a condom, the judge must take into consideration the following factors when deciding whether to order parent-child contact for the offender:
- whether the nonconsensual removal of or tampering with a condom indicates that there may be safety concerns for the child;
- whether it would be in the best interest of the child for the parent who committed nonconsensual removal of or tampering with a condom to receive any specific counseling or treatment; and
- any effect contact between the parents would have on the parent who was a victim of nonconsensual removal of or tampering with a condom.1
The judge will include conditions in the order that are appropriate to meet the child’s best interest while minimizing the effect on the parent who experienced nonconsensual removal of or tampering with a condom, such as limiting the contact between the victim and the offender, and limiting or putting specific conditions on parent-child contact, including supervision.1
1 M.R.S. 19-A § 1653(6-D)
If the judge orders supervised visits by a family member, what can I expect?
If the judge allows a family or household member to supervise the visits between your child and the parent who has been abusive or is a convicted child-related sex offender, the judge has to set conditions that must be followed during the visits. For example, the judge can:
- limit circumstances when the family of the abusive parent would be supervising visits;
- make sure that it does not damage the relationship between the child and the non-abusive parent;
- require that supervision is provided by a person who is physically and mentally capable of supervising a visit and who does not have a criminal history or history of abuse or neglect; and
- take other actions to ensure the safety and well-being of the child.1
1 M.R.S. 19-A § 1653(6)(F), (6-A)(C)
Can a grandparent or other relative get parental rights and responsibilities?
A child’s relative or another person can generally only be granted parental rights and responsibilities if the court finds that living with either parent would put the child in danger of serious abuse or neglect as defined by law,1 or if both parents are dead.
If the child is currently the subject of a child protection hearing where the state is trying to have the child removed from the parents’ care because the child is in danger of harm, a relative can petition the court to be named an “interested person.” The relative would have to have a substantial relationship with the child or a substantial interest in the child’s wellbeing.2 A relative who is an “interested person” may be granted parental rights and responsibilities if the court finds that it would be in the child’s best interest to be placed with that relative.3
1 M.R.S. 19-A § 1653(2)(C); M.R.S. 22 § 4002(1), (6)
2 M.R.S. 22 § 4005-D(1)(C)
3 M.R.S. 22 § 4005-H(2)(C)
Can a grandparent get visitation?
In order for a grandparent to get visitation, there are two steps.
Step 1: A grandparent must have a legally acceptable reason (standing) to file a petition for visitation rights. This requirement can be met if:
- There is a “sufficient existing relationship” between the grandparent and the child, which means there has been “extraordinary contact” between the grandparent and the child. If the grandparent has been a primary caregiver and custodian of the child for a significant period of time, this meets the definition of “extraordinary contact” but there can be other ways to show extraordinary contact as well; or
- The state of Maine has a convincing (compelling) reason that justifies granting visitation. This “state interest” must be so strong that the judge believes it specifically justifies interfering with the parent’s important (fundamental) right to deny the grandparent access to the child.1
Step 2: If the grandparent makes it past “step 1,” the judge then has to decide whether or not to grant visitation rights. To grant visitation, the judge must believe that:
- Reasonable visitation would be in the best interests of the child; and
- The visitation would not significantly interfere with the parent-child relationship or the parent’s authority over the child.2
In determining these two things, the judge will consider the following factors:
- the age of the child;
- the relationship of the child with the child’s grandparent, including the amount of previous contact;
- whether one or more of the child’s parents or legal guardians has died;
- the preference of the child, if old enough to give a preference;
- how long the child has been in the same living arrangements and the desire for consistency;
- how stable any proposed living arrangements for the child would be;
- the motivation of the parties involved and their ability to give the child love, affection, and guidance;
- the child’s adjustment to the child’s present home, school, and community;
- the ability of the parent and grandparent to cooperate and resolve disputes or to learn to cooperate in child care;
- any other factor affecting the physical and psychological well-being of the child; and
- whether the grandparent is a convicted child-related sex offender.2Note: If the grandparent has been convicted of any child-related sex offense, the judge has to make sure the child would be safe on visits and might require the visits to be supervised. If the conviction is for certain sex offenses, though, the judge must assume that no visitation is in the best interests of the child but the grandparent can try to change the judge’s mind.3
1 M.R.S. 19-A §§ 1802(2); 1803(1)
2 M.R.S. 19-A § 1803(3)
3 M.R.S. 19-A § 1803(7), (8)
Getting a parental rights and responsibilities order
How will the judge decide on a parental rights and responsibilities arrangement?
In making decisions regarding the child’s residence and parent-child contact, the court shall consider the safety and well-being of the child to be the most important factor. The judge will consider the following factors when making a decision about parental rights and responsibilities, in order to decide what’s in the child’s best interests:
- the child’s age;
- the relationship the child has with his/her parents and any other persons who may significantly affect the child’s welfare;
- the child’s wishes if the child is old enough to make an informed decision;
- the length of time (duration) and how good (adequate) the child’s current living arrangements are and the desirability of keeping things the same (maintaining continuity) for the child;
- the stability of any proposed living arrangements for the child;
- the motivation of the parties involved and their ability to give the child love, affection, and guidance;
- the child’s adjustment to the his/her present home, school and community;
- which parent is more likely to make sure that the child has frequent meaningful contact with the other parent, including physical access to the child;
- both parent’s ability to cooperate with each other, or to learn to cooperate, regarding child care, including the willingness to use any methods that could assist with parental cooperation;
- the effect on the child if one parent has sole authority over the child’s upbringing;
- the existence of any history of child abuse by a parent;
- all other factors having a reasonable bearing on the physical and psychological well-being of the child;
- whether a parent has misused the protection from abuse order process to gain an advantage in the parental rights and responsibilities process;
- whether the child is being breast-fed if the child is under one year of age;
- whether allocation of some or all parental rights and responsibilities would best support the child’s safety and well-being;
- the existence of domestic abuse by one parent against the other parent, in the past or currently, and how that abuse affects:
- the child emotionally;
- the safety of the child; and
- everything else listed above, which must be considered in light of the domestic abuse; and
- whether a parent or someone the parent is living with, such as a new spouse or boyfriend/girlfriend, is a convicted sex offender.1
1 M.R.S. 19-A § 1653(3)
How do I file for a parental rights and responsibilities order?
Step 1: File a petition in your local district court
If you are not married to your child’s other parent, you’d file a petition for a parental rights and responsibilities order at your local district court. If you are married, and you want to file for divorce, parental rights and responsibilities will be part of your divorce case1 Although the form will ask you for your address, if you are afraid of the other parent and don’t want him/her to know your address, you can ask to keep it confidential. Ask the court clerk for more information. To find the courthouse nearest you visit our Maine Courthouse Locations page.
Step 2: Arrange for the other parent to be served with a copy of the petition
After you file in court, the other parent needs to receive legal notice of the petition, which is referred to as “service of process.” You can get detailed instructions on how to properly serve the other parent from the court clerk. You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
Step 3: Appear in court
Once the other parent has been served with your petition, both of you will attend a case management conference with a family magistrate. A magistrate is similar to a judge, but doesn’t have as much legal authority. The purpose of the conference is to make clear what each parent wants and note what issues the parents agree or disagree on. After the conference, you and the other parent will attend a mediation session.2 If you are afraid of the other parent, you can ask to be in a separate room from the other party during the mediation.1 During mediation, a professional mediator will try to help you and the other parent work through your disagreements and reach a compromise that you can both be happy with. If you are able to reach an agreement on a parental rights and responsibilities arrangement, you will attend a final conference so the family magistrate can review the proposed arrangement and make it into a court order, assuming s/he thinks it’s in your child’s best interests. If you and the other parent cannot reach an agreement at mediation, you will attend a hearing in front of a judge. During the hearing, you and the other parent will both have a chance to present your case to the judge, be represented by lawyers, and the judge will issue a parental rights and responsibilities order.
1 See Pine Tree Legal Assistance’s website
2 M.R.S. 19-A § 1653(11)
How much does it cost to file and do I need a lawyer?
There is a fee for filing a parental rights and responsibilities petition or a divorce petition as well as for mediation. If you can’t afford to pay the fees, you can apply for a fee waiver in court.
You are not required to have a lawyer, but it highly recommended. It is an especially good idea to have a lawyer if the other parent has a lawyer, the other parent has been abusive, and/or you believe the other parent will fight you for custody. If you can’t afford a lawyer, you may be able to get free or low-cost legal help. You can find more information about free or low-cost legal help on our Maine Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
If I have recently moved to Maine, can I file for custody?
Usually, you can file in your child’s home state. The “home state” refers to the state your child has lived in with one or both parents, or a person acting as a parent, for at least the last six months before the date you file. If your child is less than six months old, the “home state” is the state where your child has lived since birth.1 For example, if you and your child moved to Maine less than six months ago, Maine would not be your child’s home state. You will probably have to file in the state that you and your child lived in before moving to Maine assuming that the other parent still lives there. Another option might be waiting to file in Maine once you and your child have lived in Maine for at least six months. There are legal consequences for both of these options – we suggest talking to a lawyer for advice on what is best for your situation. You can find a lawyer on our Maine Finding a Lawyer page.
1 M.R.S. 19-A § 1732(7)
Can I get a temporary parental rights and responsibilities order?
There are two possible ways that you might be granted this type of temporary order. First, the court can grant you temporary parental rights and responsibilities in a protection from abuse (PFA) order. However, any custody case that is filed afterwards could overrule (un-do) the custody portion of your PFA.1 The judge in a custody case must re-consider the custody issues and cannot just base his/her decision on the fact that you got temporary custody through a PFA.2
Second, you might also be able to get a temporary order when you file your petition for a permanent parental rights and responsibilities order and are awaiting the hearing.3
1 M.R.S 19-A § 4007(1)(G)
2 M.R.S. 19-A § 1653(5-A)
3 See 19-A M.R.S. § 1732(4)
Can I keep my address confidential during a custody case?
The court can order that the address of you and your child be kept confidential.1 If you are afraid for your safety if the other parent has your address, make sure you tell this to the court clerk and the judge so that the proper steps can be taken to keep you and your child safe. For example, in addition to keeping your address confidential, the judge can order that you and the other parent exchange the child at a different location than your home.2
1 M.R.S. 19-A § 1653(6)(D)
2 M.R.S. 19-A § 1653(6)(B)(1)
After a parental rights and responsibilities order is in place
What happens if a parent violates the parental rights and responsibilities order?
If the other parent does not follow the court’s order, you can petition the court for a violation/contempt hearing. If the court finds that the other parent has violated the order, the judge can decide that the parent is “in contempt” and can add terms to the order, change the terms to make the order more specific, order make-up visitation if dates were wrongfully missed, or fine the other parent.1
1 M.R.S. 19-A § 1653(7)
Can a final order be changed?
If a parent wants to change a final parental rights and responsibilities order, s/he can petition the court for a modification hearing.1 To get an order changed, the parent needs to show the court that there has been a substantial change in circumstances since the order was issued and that changing the order would be in the child’s best interests.2
According to Maine law, the following would automatically qualify as a “substantial change in circumstances” in order to bring the case back to court:
- if a court finds that domestic violence has occurred since the primary residence was last determined;
- if there is shared or allocated parental rights and responsibilities and:
- one parent intends to relocate or has relocated out of state but the non-relocating parent lives in Maine;
- one parent intends to relocate or has relocated within Maine and it will “disrupt the parent-child contact” between the child and the parent who is not relocating. Note: The judge will assume that any move greater than 60 miles from the relocating parent’s home or from the non-relocating parent’s home will disrupt the parent-child contact but it’s possible that a move of a lesser distances can also be determined to “disrupt the parent-child contact”; or
- if a parent receives a notice of the intended relocation of his/her child from the other parent.3
1 M.R.S. 19-A § 1657(1)
2 See M.R.S. 19-A §§ 1657(1); 1653(3); see also Neudek v. Neudek, 2011 ME 66, 21 A.3d 88
3 M.R.S. 19-A § 1657(3)
If I plan to relocate, what type of notice do I need to give to the other parent?
For parents with shared or allocated parental rights and responsibilities, the parent who wants to relocate must give notice to the other parent at least 30 days before the planned relocation. If the relocation must happen in less than 30 days, notice must be given as soon as possible.1 The notice shall include the address and, if known, the telephone number of the residence where the parent intends to relocate the child.2 The only exception to this is if the parent who wants to relocate believes that giving notice would put him/her and the child in danger. In that case, the parent has to notify the court and the court will give appropriate notice to the other parent with the parent’s and child’s safety in mind.1
After the non-relocating parent receives the notice of intended relocation, s/he can object to the move in court or seek a change in custody based on the intended move. See Can a final order be changed? for more information.
Note: The law isn’t specific about how the notice is supposed to given and delivered to the other parent - the law just says “actual notice” must be given.2 We recommend checking with a lawyer in your county who is familiar with custody and relocation matters to get advice on how to make sure the notice is given/delivered properly. Go to our Maine Finding a Lawyer page for legal referrals.
1 M.R.S. 19-A § 1653(14)
2 See FM-140 Schedule of Parental Rights and Responsibilities 9/05
If I have sole parental rights and responsibilities, can the other parent have access to my child’s records?
Usually, both parents can have access to their child’s medical and school records, even if the child does not live with the parent. However, the court can deny a parent access to the child’s records if the judge believes that access would not be in the child’s best interest. For example, when the parent has been abusive, or if the parent wants access for the purpose of causing harm to the other parent.1 If you are concerned for your safety if the other parent can access the child’s records, which likely include your home address and telephone number, you can ask the judge to deny the other parent access.
1 M.R.S. 19-A § 1653(2)(D)(4)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.