Can a parent who has been violent get parental rights and responsibilities and/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 not to 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
Note: 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 in that case can also 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
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)
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;
- ensure the safety and well-being of the child; and
- 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.1
1 M.R.S. 19-A § 1653(6)(F), (6-A)(C)
If my child was conceived from a sexual assault, can the offender's rights be terminated?
The mother of the child, or the mother’s 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.1
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.2
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)
Can a grandparent or other relative get parental rights and responsibilities?
A child’s relative (or any other third party) 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. First, the grandparent must have a legally acceptable reason (known as “standing”) to file the petition. Next, the judge must consider many factors and then decide if visitation would be in the child’s best interest and not interfere with the parent/child relationship.
A grandparent would have a legally acceptable reason (standing) to file a petition for visitation rights 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 (Note: 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
- there is another convincing (compelling) reason that the state of Maine has 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
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.
The judge will consider the following factors when deciding whether visitation is in the child’s best interests and whether it would interfere with the parent’s relationship with the child and authority over the child:
- the age of the child;
- the relationship of the child with the child’s grandparent(s), 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
- if 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)