When a minor child’s parents separate, determining the child’s custody arrangement is probably the hardest decision the court must make. Parents often have differing views on the best custody arrangement, and the child may have a preference as well. In many states, the law requires judges to consider a child’s custody preference in addition to the parent’s desires.
If you have additional questions about child custody laws in Maine after reading this article, you should consult a local family law attorney.
Although child custody is a concept that many parents understand, Maine courts don’t actually use the term “custody” when dealing with a parent’s rights concerning minor children.
Instead, the courts use the terms “parental rights and responsibilities” (legal custody) and “physical residence” (physical custody). Parental rights and responsibilities refer to each parent’s rights and obligations to take part in decisions regarding the child’s wellbeing—like medical decisions, religious training, and educational decisions. Physical residence refers to where the child will live and which parent will have control over the child’s day-to-day activities.
There are three ways for the court to divide parenting rights and responsibilities:
Courts most commonly award shared parental rights, which means that each parent takes part in making decisions regarding the child’s wellbeing, and both parents must consult with each other before deciding how to handle significant issues. In allocated rights, the court may award one parent the ability to make religious decisions while granting the other the right to control all educational decisions.
In rare cases, the court will award one parent sole rights and responsibilities, meaning the parent does not need to consult with the other when making important decisions regarding the child. If the court awards one parent sole residence, it means that the parent will decide where the child lives and will be responsible for day-to-day decisions for the child. (Me. Rev. Stat. Ann. tit. 19-A, § 1501.)
This article will use the terms “parental rights and responsibilities” and “custody” interchangeably.
In Maine, the hallmark factor in every custody evaluation is what’s in the child’s best interest. (Me. Rev. Stat. Ann. tit. 19-A, § 1653 (2)(D)(1).) If the parents agree to a parenting plan, and it’s in the child’s best interest, the court will sign the agreement, and it will become an official court order. (Me. Rev. Stat. Ann. tit. 19-A, § 1653 (2)(A).)
However, if parents can’t agree, the court will decide. To determine the child’s best interest, the judge will consider a number of different factors, including each of the following:
Contrary to popular belief, the court must give equal consideration to both parents, regardless of the parent’s or child’s gender or age. (Me. Rev. Stat. Ann. tit. 19-A, § 1653 (4).)
Maine judges must consider the child’s custodial preference whenever the child is old enough to have a meaningful opinion. There is no set age when the court will consider the child’s opinion; the judge decides whether the child is “old enough” on a case-by-case basis.
The judge will consider the reasons behind the child’s preference to determine whether the opinion is meaningful. For example, if a son wants to live with his father because he allows him to eat whatever he wants and buys him more toys, the court is unlikely to view that as a meaningful opinion. However, if the son articulates reasons like his father helping more with homework or coaching his soccer team, the judge is more likely to give the preference weight in the custody decision.
The older and more mature a child is the more weight that a child’s preference will have on custody. One Maine court has specifically stated that the opinion of a child aged 12 or older should carry a lot of weight. Another court has also stated that the opinion of a 4-year-old won’t factor into the custody decision.
The child’s wishes are only one of several factors a court will consider when deciding custody. If all other factors are equal, the judge may use the child’s preference to tip the balance one way or the other. On the other hand, a court won’t hesitate to rule against the child’s preference if the judge believes that preference is not in the child’s best interest.
Maine judges are sensitive to the pressure a child would feel testifying about a custodial preference in front of his or her parents. Courts have a number of ways they can ease that pressure, but still determine the child’s opinion.
Frequently, a judge will ask the parents to consent to an interview between the judge and child in court chambers (the judge’s office). The parents aren’t present for the interview. The attorneys can be present but usually won’t ask the child questions. The attorneys and parents can suggest questions for the judge to ask. A court reporter will also be present to make a record of the conversation.
Sometimes the court permits a guardian at litem (GAL) to represent a child in a custody case. The GAL (an attorney) submits a report to the court regarding what is in the child’s best interests and may testify about the child’s preferences as well. Other times, the court will appoint a custody evaluator or mental health professional to speak with the child and communicate the child’s desires to the judge.
There are times in every family where circumstances change, making the current custody orders ineffective. Although the court favors stability for children, it allows parents to request a modification or review of the orders, but only in limited circumstances.
In Maine, parents hoping to change a court order must demonstrate that, since the last order, there has been a substantial change of circumstances in the family. For example, if the custodial parent wishes to relocate or either parent commits child or domestic abuse. (Me. Rev. Stat. Ann. tit. 19-A, § 1657.) If the court agrees that the change warrants a review, the court will re-evaluate custody using the best interest factors listed above.
Visit the State of Maine Judicial Branch website for important information, links, and forms regarding child custody.
If you have additional questions about the effect of children’s custodial preferences, contact a Maine family law attorney for help.