Typically, the term “custody” has a number of components. The two main ones are “legal” custody and “physical” custody. Legal custody relates to the right to make the significant decisions in raising the child, such as choices about the child's education, religious upbringing, and non-emergency medical treatment. “Physical” custody concerns the child’s living arrangements.
Those main components have sub-categories: “sole” custody and “joint” (shared) custody. Sole legal custody ordinarily means that only one parent has the decision-making authority. Joint legal custody gives that right to both parents. With sole physical custody, the child lives with one parent, while the other parent ususally has visitation. In a joint physical custody scenario, the child lives with each parent for certain periods. Depending on the circumstances of each case, these periods could be a few days a week to months at a time.
Regarding visitation, also referred to as “parenting time,” as a general rule the law provides that the parent with whom the child isn’t currently residing gets to spend time with the child. The court will determine where and when this occurs, if the parents can’t reach a legally acceptable agreement.
When it comes to custody and visitation, Maine is an outlier right off the bat. Unlike most states, the law in Maine doesn’t use the words “custody” and “visitation.” Rather, it refers to them as “parental rights and responsibilities.” And the difference doesn’t end there.
Although Maine provides for the standard “sole” and “shared” designations referenced in the previous section, it adds another category to the mix: “allocated” parental rights and responsibilities. All three revolve around the child’s welfare. There are various aspects to what the law means by a child’s welfare. Some of them are:
Under Maine law, the term “shared parental rights and responsibilities” means that most or all aspects of a child's welfare are the joint and equal right and responsibility of both parents, and it's expected that the parents will confer with each other when making decisions. If the parents agree to a shared parental rights and responsibilities arrangement, the court must go along with the agreement unless the judge determines there’s substantial evidence against approving it.
The law defines “sole parental rights and responsibilities” as granting to one parent the exclusive parental rights and responsibilities relating to all aspects of a child's welfare. However, the statute states that the right and responsibility for child support is a possible exception. This means the parent who wasn’t granted exclusivity can still be obligated to pay child support.
“Allocated parental rights and responsibilities” divides the various aspects of a child's welfare between the parents. For example, one parent may control the decision-making regarding the child’s education, while the other controls religious upbringing.
When awarding parental rights and responsibilities, the law prohibits a judge from applying a preference based on a parent’s gender, or the child’s gender or age.
When deciding parental rights and responsibilities, the standard a judge has to abide by is "the best interest of the child." This isn't an abstract concept. Rather, the law specifically lists factors a judge must consider when determining what is in a child’s best interest. Some of these are:
Be aware that a judge can take the child’s preference into consideration when determining parental rights and responsibilities, if the child is old enough to express a meaningful preference.
When making decisions regarding where the child will live, as well as parent-child contact (visitation/parenting time), the court’s primary consideration must be the child’s safety and well-being. Regarding the child’s residence, for example, if the parents don’t live near each other, the court might find that a shared residency arrangement (the child lives for periods of time with each parent) will be unduly disruptive to the child’s routine, and thus not in the child’s best interest.
As to parent-child contact, if the court determines that being alone with a parent could endanger a child’s safety, the judge can order supervised contact. If the parent is violent, it’s likely that personnel of a state-sanctioned agency will monitor the parent’s time with the child. In other circumstances, the court might permit a family member to oversee the visits. You’d possibly see this if the parent has an alcohol or drug problem, but isn’t a physical threat to the child.
If either parent believes that a parenting rights and responsibilities order should be changed for some reason, that parent can request a modification from the court. However, the parent will have to prove there’s been a “substantial change in circumstances” since the court issued the order. An example would be where there’s an order for shared or allocated parental rights and responsibilities, but one of the parents now wants to move out-of-state with the child.
For more information on parenting rights and responsibilities in Maine, consult with a knowledgeable local divorce lawyer.