Child Custody

Maine law no longer utilizes the word "custody." What was formerly known as custody has been divided into two separate categories: Parental rights and responsibilities and residency. Although Maine Statute does not expressly require the Court to designate the division of time during which the child will be residing with either parent, the Court will often designate a primary residency for the children and the parental contact between the nonresidential parent and the children.

The Court is required, however, to determine the division of parental rights and responsibilities for the children. In making an award of parental rights and responsibilities with respect to a minor child, the Court is required to apply the standard of what is in the best interest of the child. In applying this standard, the Court must consider the following factors: 1) the age of the child; 2) the relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare; 3) the preference of the child, if old enough to express a meaningful preference; 4) the duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity; 5) the stability of any proposed living arrangements for the child; 6) the motivation of the parties involved and their capacities to give the child love, affection and guidance; 7) the child's adjustment to the child's present home, school and community; 8) the capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access; 9) the capacity of each parent to cooperate or to learn to cooperate in child care; 10) methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods; 11) the effect on the child if one parent has sole authority over the child's upbringing; 12) the existence of a history of domestic abuse between the parents; and 13) all other factors having a reasonable bearing on the physical and psychological well-being of the child.

The Court may award sole or shared parental rights and responsibilities, or may allocate parental rights and responsibilities between the parties. Under the recently passed revised statute, if a party requests shared primary residency of a child and the Court does not make that award, the Court must explain its reasoning for not doing so.

Shared parental rights and responsibilities mean that most or all aspects of a child's welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities and both parents must confer and make joint decisions regarding the child's welfare. While there is no statutory presumption that the Court should order shared parental rights and responsibilities, where the parents have agreed to an award of shared parental rights and responsibilities or so agree in open Court, the Court shall make that award unless there is substantial evidence that it should not be ordered. The Court shall state in its decision the reasons for not ordering a shared parental rights and responsibilities award agreed to by the parents.

Sole parental rights and responsibilities mean that one parent is granted exclusive parental rights and responsibilities with respect to all aspects of a child's welfare, with the possible exception of the right and responsibility for support.

Allocated parental rights and responsibilities mean that responsibilities for the various aspects of a child's welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child's welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child's welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities. A parent allocated responsibility for a certain aspect of a child's welfare may be required to inform the other parent of major changes in that aspect.

The Court may award parental rights and responsibilities with respect to the child to a third person, some suitable society or institution for the care and protection of children or the Department of Human Services upon a finding that awarding parental rights and responsibilities to either or both parents will place the child in jeopardy.

It is also important to note that there is no presumption that siblings should not be separated, and that the Court may not apply a preference for one parent over the other in determining parental rights and responsibilities because of the parent's sex or the child's age or sex.

The Court also has the power to appoint a Guardian ad Litem in a disputed custody case. "Ad Litem" literally means "of the case" and the guardian is charged with investigating the situation and formulating a recommendation to the Court with regards to what is in the best interests of the child. In effect, the guardian represents the child or children in a disputed custody case, even though the guardian's duty is to the Court. In other words, the guardian is the Court's expert and is in no way representing the parents in the divorce.

The Law Court has ruled that the divorce Court can consider one parent's unsuccessful prosecution of a protection from abuse complaint against the other parent when awarding parental rights and responsibilities only if the Court finds by clear and convincing evidence both 1) that the parent willfully misused the protection process in order to gain a tactical advantage in the divorce proceeding and 2) that in the particular circumstances of the divorcing couple and their children, that willful misuse tends to show that the acting parent will, after the divorce, have a lessened ability and willingness to work with the other parent in their joint responsibility for the children. Either parent, or an agency of third person who has been granted parental rights and responsibilities with respect to a child, may always petition the Court to modify the previously determined custody arrangements. However, only a substantial change of circumstances will warrant a modification of a judgment, and the petitioning party has the burden of proving the existence of a substantial change of circumstances and that the previous order should be changed or modified.

Maine law does state that the relocation, or intended relocation, of a child who is a Maine resident to another state by a parent, when the other parent is a resident in this State and there exists an award of shared or allocated parental rights and responsibilities concerning the child, is a substantial change of circumstances, allowing the Court to review the custodial arrangements in light of the relocation.