Difference Between Guardianship of a Minor and Parental Rights and Responsibilities in Maine

In Maine, the biological or adoptive parents are considered the natural guardians of a child. As such, they are legally responsible for the child’s care, well-being, and development until he/she turns 18.

Parents must make decisions about the key elements of the child’s life, but if the parents are unable to function as guardians, who makes the decisions then?

An interested party can apply to the court to become the legal guardian of the child. The court must then decide whether to grant the request by court order. If so, the legal guardian assumes similar rights and responsibilities to natural parents.

Here is what else you need to know.

In Maine, the legal guardian of a child is responsible for:

• Day-to-day decision-making for the child
• Control of the child
• The care and upbringing of the child

The guardian takes over the responsibilities of the natural parent(s), including making decisions about education, healthcare, social activities, and religious/cultural upbringing.

Importantly, however, the financial responsibility for raising the child still lies with the child’s parents (assuming they are still alive). In many cases,  the guardian will end up providing financial assistance to the child as well.

“Parental rights and responsibilities” is the term used in Maine for child custody, as the term “child custody” is no longer used in Maine family law legislation.

Often, when parents separate and divorce, one of the most contentious matters is allocating parental rights and responsibilities. Many disputes arise and, if the parents cannot agree, the Maine courts will need to decide. Certain well-established legal principles, rules, and procedures will be considered before the authority to make decisions on behalf of the child is allocated and where the child will reside is decided.

Each case is considered on its unique circumstances but there are three possible outcomes in Maine:

• Shared parental rights: Where equal legal authority is granted to both parents to make decisions on behalf of their child and access records. Parents need to communicate well and make decisions in the best interests of the child. This is the preferred (and most common) arrangement for the allocation of parental rights and responsibilities in Maine.
• Allocated rights and responsibilities: This is where the court grants each parent different parental rights and responsibilities, e.g., one parent makes educational decisions while the other parent makes healthcare decisions.
• Sole authority: Where one parent has the legal authority to make all major life decisions for their children and decide where they live (though the other parent must still provide child support and often retains visitation rights).

A legal guardian for minor children is appointed by the Probate Court or District Court in Maine.

A parent can appoint a guardian by last will and testimony. The court will ratify the appointment if it is in the minor’s best interests. The Maine courts can also appoint a guardian if the parent’s parental rights have been terminated or the parents are unwilling or unable to meet the minor’s needs.

Applying for legal guardianship of a minor requires the following steps:

1. Fill out the required court forms: Go to the court in the county where the child lives and gather the correct forms, including a Petition for Appointment of Guardian of a Minor, a Jurisdictional Affidavit, a Child Support Affidavit, and various other forms (ask the clerk for the precise forms required depending on the circumstances in your case).
2. Copy and file the forms and pay the fee: File the completed forms either by mailing them or hand-delivering them to the appropriate court. Retain two copies of each form.
3. Notify other parties that you are petitioning for guardianship: You must inform the minor child (if 14 years or older), the parents, the person who has cared for the child for the 60 days before filing, and any other guardian or conservator for the minor. The judge may also direct you to inform additional persons depending on the circumstances in your case.
4. Attend the court hearing: If the parties agree, the court hearing will usually be less formal and quicker. In a contested case, multiple hearings may be required and the help of a qualified lawyer is advisable to prove to the judge that you are the best person to be appointed as the child’s guardian.
5. Await the judge’s verdict: If appointed, the new guardian must file an Acceptance of Guardianship within 30 days or another guardian may be appointed by the court.

Under the Maine legislation for guardianship of a minor:

“The guardianship of a minor terminates upon the minor’s death, adoption, emancipation, marriage or attainment of majority or as ordered by the court.”

“The appointment of a guardian or conservator terminates upon the death, resignation or removal of the guardian or conservator or upon termination of the guardianship or conservatorship.”

Under Maine law, the legal guardian of a minor “has the duties and responsibilities of a parent,” essentially taking over the parental rights decisions on behalf of a minor child from the parents and making decisions about support, care, education, health, welfare, and cultural upbringing.

Parents technically retain their legal parental rights unless they are terminated by the court and also retain the financial responsibility for the child but, in practice, the guardian also assumes at least part of the financial responsibility.

If you need legal assistance with a divorce in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.