How will the judge decide on a parental rights and responsibilities arrangement?
The judge will issue a parental rights and responsibilities order that s/he think is in the child’s best interest. 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. The judge will consider the following factors when making a decision about parental rights and responsibilities:
- 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;
- how stable any proposed living arrangements for the child are;
- the motivation of the parties involved and their abilities to give the child love, affection and guidance;
- the child's adjustment to the child's 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;
- if a parent has misused the protection from abuse order process to gain an advantage in the parental rights and responsibilities process;
- if the child is under one year of age, whether the child is being breast-fed;
- 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 between the parents, 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
- if 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 with the court
If you and your child’s other parent are not married, you can file a petition for a parental rights and responsibilities order at your local district court. If you want to file for divorce, you can also do this at your local district court and parental rights and responsibilities will be part of your divorce case.1 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. The court clerk can give you more information on how to keep your address confidential. To find the courthouse nearest you visit our ME Courthouse Locations page.
Step 2: Arrange for the other parent to be served with a copy of the petition
After you file with the court, the other parent needs to receive legal notice of the petition, which the court refers to as “service of process.” You can get detailed instructions on how to properly serve the other parent from the court clerk.
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 (who 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 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, unless he/she feels it would not be 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?
The fee for filing a parental rights and responsibilities petition or a divorce petition is $120. There will likely be a fee for service of process (having the papers delivered to the other parent), but the amount will depend on who you use to serve the papers. The fee for mediation is $160, which is split between you and the other parent.1 If you can’t afford to pay the fees, you can ask the court to waive the fees.
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 ME Finding a Lawyer page.
1 Fees current as of 1/2019, see the Maine State Courts’ website
What state do I file in?
Usually, you can file in your child’s home state. "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 ME 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 ME 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 (private).1 If you are afraid for your safety if the other parent has your address, make sure you tell this to the judge so 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)