Do I have the right to see my grandchildren?
In Maine, some grandparents may ask a court to give them contact or visitation with their grandchildren. But children’s parents usually have the right to decide whether grandparents can see their grandchildren. So, except in very specific circumstances, the court will usually not give grandparents contact or visits with the grandchildren if the parents object.
What should I do before I go to court?
Before you go to court, you should try to work out the problem on your own with the parents. You can do this by talking with them. You can also send them a letter explaining what you want and asking that they get back to you within a certain time. If you mail a letter to the parents, you should send it by certified mail (with the green return receipt card). You should keep the green card when you get it back in the mail to prove to the Court that they received your letter and you tried to work the problem out.
You should take notes about all of your conversations or attempts to work out the problems with the parents. You should write down things like:
- who you spoke with
- where you were
- what was said
This may also be helpful if you go to court.
When can I go to court to ask for visitation rights?
If you are unable to work the problem out you may ask a court in writing to give you "reasonable rights of visitation or access" to the grandchildren.
You must be able to show the court that:
- You have a "sufficient existing relationship" with your grandchild; or
- There is some other compelling reason that the court should interfere with the parents’ fundamental rights to make decisions for their child.
To show that you have a sufficient relationship, you should explain to the court all of the things that a parent does for a child and who has been doing those things for your grandchild.
For example, what person does the following for your grandchild:
- Enrolls them in school?
- Which school district (grandparent’s address or parent’s address?)
- Feeds the child?
- Buys clothing?
- Dresses the child, gets them ready for school?
- Where does child usually sleep?
- Who does the child live with and for how long?
- Who cares for child when sick?
- Who takes the child to and from school? Doctor? Dentist? Other appointments?
- Who bathes the child or brushes their teeth?
- Who buys other things for child?
- Who goes to parent/teacher conferences?
- Who disciplines child?
- Other things a parent usually does for a child that you do?
- How long you have been doing all of these things?
Note: If you want custody of the child (parental rights and responsibilities) instead of just contact or visitation, you may be able to ask for custody if you have acted as a parent for the child including fully and completely taking a permanent, clear, committed, and responsible parental role in the child's life for a sufficiently long period of time. This is called being a “de facto parent.” Learn more about what it means to be a "de facto parent" in our Guide to the Maine Parentage Act.
How do I ask the court for visitation?
Write a petition to the court
You should first complete court form FM-226, or a Petition for Grandparent Visitation.
Write a sworn statement (also called an Affidavit)
To prove that you should have visitation with your grandchild, you must also file a sworn statement called an “affidavit” with the court.
In the affidavit, you must describe your relationship with your grandchild in as much detail as possible. You should explain how you have acted as the parent for the child for a sufficiently long period of time. If there is an urgent reason you should clearly explain that situation to the court. If one of the child’s parents has died or if you have tried hard to have a close relationship with your grandchild, you should explain those circumstances as well.
If you have documents or photographs or other items or evidence that may help the judge understand your case, you may attach them to your affidavit and say something about them in your affidavit. If you have other witnesses who may have helpful information for the judge you can have them write an affidavit and attach that affidavit as well.
Again, you should also make statements in your affidavit that your request for visitation:
- Is in the “best interest of the child,” and
- would not significantly interfere with any parent-child relationship, and
- would not significantly interfere with the parent’s rightful authority over the child.
You should explain to the court why these things are true.
You should then bring your affidavit to a notary public and sign it in front of them and have them sign below you, stating that you swore that everything in the affidavit was true.
Make copies, then file your petition and affidavit in court
You should then make at least 3 copies of the petition, affidavits, and any other evidence you want to submit. Then you should file the original petition, affidavits, and other evidence in the District Court that covers the town where the child lives. Filing the petition means mailing or handing the papers to the clerk of that court.
Pay the fee or request to file without a fee
When you file your papers, you may have to pay a fee. If you cannot afford to pay the fee, you should submit an Application to Proceed without Fees and a Financial Affidavit, which you can get from the court clerk or find here. You can get these forms from the clerk or download them here. You will have to tell the court how much income you have and any expenses. You should file this paperwork with the clerk. Then the judge will decide how much you will have to pay.
Serve the parents or legal guardians with copies
After you file the petition and affidavit in court, you must serve copies on the parents or legal guardians of your grandchildren. Serving copies means you mail or have them hand delivered. You should mail copies by certified mail with the green card return receipt. When you get the green card back in the mail it will be proof that the other side received your documents. You can also have someone over 18 who is not involved with the case give copies to the other side in person.
Always file the original paperwork with the Court and keep a copy of what you file with the Court for your own records. The other copies are for you to send to the parents or legal guardians.
Will the child's parents be involved?
Yes. You must "serve" copies of your court papers on the parents or legal guardians. The parents (or legal guardians) can file their own papers and affidavits asking the court not to give you visitation. They may say that there is not a sufficient relationship between you and the child or that it is not in the child’s best interests for you to have visitation. The parents should mail or give you a copy of any papers they file with the court.
What happens next?
1. The judge will read the papers and affidavits that are filed.
The judge will decide if you have shown enough evidence of a sufficient relationship between you and the child or another compelling reason for the court to grant you visitation. If the judge determines that you have not shown either of these things, then the judge will dismiss your petition and your case will be over.
2. If the judge decides that you have provided enough evidence of a sufficient relationship between you and the child or another compelling reason for the court to grant you visitation, the judge will schedule a “hearing.” A hearing is a time where everyone who is involved in the case will come to court to explain to the judge what should happen and whether visitation should be allowed.
3. If a hearing is scheduled, you should go to court on the date and time scheduled. You should get to court at least 15 minutes early. If you do not go to court or if you are late, the other side may get everything they ask for. If you cannot make it to court on the scheduled day and time or if you are running late, you should call the court clerk and the attorney or person on the other side, let them know, and ask the court for more time and to reschedule the court date. Lawyers call this asking for a “continuance.”
4. At the hearing you should be ready to show evidence to the judge about:
- What is the sufficient relationship between you and the child? or what is the other compelling reason that the court should step in to grant you visitation?
- How is your visitation with the grandchild in the best interest of the grandchild?
- How will your visitation not seriously affect the parent’s relationship with the child or the parent’s authority or ability to have control over the child?
You should bring any evidence you have to court including documents, photos, or video that might help the judge decide your case.
You should also bring any witnesses that you think may have some helpful information or other evidence to support your case.
The judge will listen to your evidence and witnesses and the evidence and witnesses for the parents. You will have the right to ask questions of the witnesses for the other side and they can ask you or your witnesses questions.
Do I get a court hearing right away?
Sometimes the judge will require you to go to mediation first. This means that you and the parents must meet with a trained person called a “mediator” to try to work out a solution to your issues. If you can work everything out with the help of the mediator, then the mediator will write out what has been agreed to and it will be signed by all people involved. Then the judge will review it and likely will sign it unless there is some reason not to.
However, you do not have to agree to a solution at mediation. Sometimes people can agree and sometimes they cannot. If you cannot agree on a solution with the other side after mediation, you will go on to a hearing and ask the judge to decide the case.
If you are ordered to go to mediation, take it seriously. A judge can punish you by, among other things, dismissing your case or ordering you to pay the other side’s attorney’s fees if:
- you don't make a good faith effort to mediate, or
- you fail to show up at a mediation session, and you don't have a good reason for missing it.
A judge may also appoint a person to act as a guardian ad litem for the grandchild in the case. A guardian ad litem or “GAL” is a person, usually a lawyer, who will represent the child’s best interests in court at the hearing. The GAL will investigate the case and will likely talk with each person in the case and may go to your home. You should cooperate with the GAL as much as possible. At the hearing, the GAL will make a recommendation to the judge about what should happen in the case. Judges usually take the GAL’s opinion very seriously.
If the court appoints a GAL, the court may also order you and the other side to pay a part of the GAL’s fees. This can be several hundred to more than one thousand dollars. If you cannot afford these fees you should tell the judge and ask that the other side pay for them. It is up to the judge to decide who pays the fees.
If I go to a hearing, how will the judge decide?
The judge will listen to both you and the parents, as well as any other witnesses called by either side. Court rules of evidence and procedure will apply even if you are not an attorney. The judge must then decide if giving you visits would:
- be in the best interests of the child, and
- not significantly interfere with any parent-child relationship or with a parent's authority over the child.
In making that decision, the judge will look at things like:
- The age of the child;
- Your relationship with the child, including the amount of contact you have had with the child;
- Whether one or more of the child’s parents or guardians has passed away;
- What the child would like, if the child is old enough to have an opinion;
- What the child's current living situation is like and the need for stability;
- The stability of any proposed living arrangements for the child;
- Your and the parents' reasons and ability to give the child love, affection and guidance;
- The child's adjustment to their home, school or community;
- Your and the parents' ability to cooperate or learn to cooperate in child care;
- Different ways of helping you and the parents cooperate and settle future disputes and your willingness to use those methods;
- Whether you have been convicted of a sex offense or sexually violent offense (as defined by Maine law); and
- Anything else relating to the child's well-being, including the opinion of the parents.
Can the judge's order be changed?
Yes. A judge can change or cancel a visitation order if circumstances change and one of the parties goes back to court to ask for a change.
Also, you can appeal the judge's decision to the Maine Supreme Judicial Court. The deadline is 21 days from the judge's decision. For most people, this would be hard to do without a lawyer.
Do I still have rights when my grandchildren are related to me by adoption?
Yes. You only lose your right to ask for visitation if somebody else later adopts your grandchild.
Can I get involved if my grandchild is the subject of a child protection proceeding?
Yes. You have three options. You can ask the court informally, either orally or in writing, to become an "interested person" or a "participant." The third option is to file and serve a formal court motion, requesting "intervenor status."
To become an "interested person" you must show that you have a "substantial relationship" with the child or a "substantial interest" in the child’s well-being. The court will evaluate things like how long you have known the child, how you know the child, and how strong your relationship with the child is. If you become an "interested person," you may attend all court proceedings, unless the court finds good cause not to include you. This does not include the right to be heard by the court or the right to present or cross-examine witnesses, present evidence, or see the court papers or records.
To become a "participant," you must show that:
- you are an "interested person" and
- including you in the court proceedings is "in the best interests of the child" and
- including you is consistent with the purposes of Maine's child protection law.
As a "participant," you have the right to be heard in court, but not the right to present or cross-examine witnesses, present evidence or have access to court documents.
To become an "intervenor" you must show that your rights may be adversely affected unless you are given status as a party in the case. This is the most difficult option. An "intervenor" can speak at hearings, present or cross-examine witnesses, present evidence and see court documents.
If the court allows you to have any of these three roles, you then have the right to ask for reasonable rights of visitation. You also have the right to ask that the child be placed with you. (If you are an "interested person," you must make this request in writing.) The court will give you priority consideration in placing the child. In all cases, placing the child in any home must be "in the best interests of the child," and consistent with the child protection laws.
If my grandchild is placed for adoption, will I lose my visitation rights?
If your grandchild is placed with possible adoptive parents and they have signed an adoption placement agreement, your visitation rights are suspended. If the adoption does not become final within 18 months, any visitation rights allowed earlier by a judge are returned to you. Once the adoption becomes final, your visitation rights will end for good. However, if the new adoptive parents wish, they may let you keep seeing your grandchild.
Learn more about Guardianship of a Minor
Maine's Legal Services for the Elderly also posts information about Grandparent Rights. And, if you are 60 or over, you can call them about your issues.
Updated August 2022