Guardianship of a Minor

Introduction

Are you worried about the health and safety of a child you love?

Under Maine law, the biological or adoptive parents of a child are the natural guardians of that child. The natural guardians are responsible for the child's care, custody, control, services and earnings until the child turns 18. 

But what can you do if the natural guardians are not able to take care of the child? How can you help that child? One way is to become the child's legal guardian.

Please read all of this information and learn everything you can before deciding to seek a guardianship. You can also talk with the folks at Maine Kids-Kin or Adoptive and Foster Families of Maine about your options.

What is a legal guardian?

A legal guardian takes over day-to-day decision making and control of the child from the natural guardian under a court order. A legal guardian, generally speaking, takes over the care and upbringing of the child, making all parenting decisions. For example, the guardian can:

• request and accept medical treatment on a child's behalf,
• enroll the child in public school in the guardian's community, and
• provide for the child's general welfare.

Legal guardianship does not include financial responsibility; this remains with the parents. However, as a practical matter - depending on the parents' situation - guardians often provide financial support.

Note: Generally, an adult with a simple power of attorney over a child may not enroll the child in that adult's local public school. (However, some schools will allow this if the child's parents live in the same district.) At the same time, "homeless" students have the right to attend school under federal law. Click here to read more about Homeless Students Rights to Attend School.

Who can decide to appoint a legal guardian?

The Probate Court can appoint a legal guardian for minor children when it is appropriate. Each county in Maine has a Probate Court. Find a listing here.

Step 1: Get the required court forms and fill them out

Note: In 2016, Maine passed the Home Court Act. This law is meant to prevent more than one case about the same child from happening in different courts. Cases about the guardianship of a minor can now be heard in either Probate or District Court. Courts use a Jurisdictional Affidavit to find out about all of the cases involving a child, and to figure out which court has the power to make a decision about guardianship. They do this to make sure they are following the Act. You will need to file a Jurisdictional Affidavit. Learn more about this in our new guide: Adoption, Guardianship of a Minor, Child Name Change and Maine's Home Court Act: When, where and how to file the Jurisdictional Affidavit

You will need to get and complete several forms. Go to the Probate Court office in the county where the child lives. Explain to the clerk that you want to petition for guardianship of a minor child. They will give you the forms you need.

The courts charge for the forms, as well as for filing them. If you have a very low income and cannot afford this fee, you can download and fill out or ask the court clerk for a fee waiver application.

Different Probate Courts may require different forms. But you can get at least some of the forms you will need online here. Even if you use these forms, you will have to pay for them when you file them with the court.

Here are the basic forms that all courts use:

1. The key form is the Petition for Appointment of Guardian of Minor. The person filing the Petition is the Petitioner. You can propose yourself as the new guardian or another person whom you think is qualified. Make sure that the person you nominate (the nominee) is willing and able to take on the responsibilities.
2. You will need to fill out a Jurisdictional Affidavit so the court can decide if they have the power to make a decision about guardianship. 
3. Some courts will also require you to file an Acceptance of Appointment by Guardian of Minor form with your Petition. 
4. In addition to these forms, you will also need to file the following forms when you file your Petition: 
   1. Affidavit of Notice – this shows that you informed the parents and possibly others who take care of the child that you filed for guardianship. 
   2. Parent’s Consent – this form tells the court whether the parent agrees or not with you asking for guardianship of the child.
   3. If the child is age 14 or older, then you need to file form Minor’s Consent, Objection, or Nomination. 
5. If you are requesting that the court grant you child support, you must also fill out a Child Support Affidavit. 
6. If you are asking the court to give you guardianship immediately, you can file a form called Motion for Emergency Guardianship. You must show:
   1. Guardianship is needed immediately, sooner than the regular process for guardianship, to prevent substantial harm to the child
   2. Nobody else has the right or the willingness to act to protect the child.
   3. That you have filed the Petition for Guardianship of a Minor, and 
   4. That you have provided notice to the parents and child if age 14 or older.  This can be letting them know in writing or in talking with them. 
   5. If you have not given notice, you will need to give a good reason to the court.
   6. The Judge may waive the notice requirements and appoint a guardian without notice of hearing. If that happens, the Judge will schedule a hearing within 7 to 14 days of issuing the order appointing an emergency guardian. You will have to give notice of the emergency guardianship and the hearing within 48 hours to: 
      1. The child if 14 or older, 
      2. Each living parent, and each person who has had care and custody of the child within 60 days.
7. The key form is the Petition for Appointment of Guardian of Minor. The person filing the Petition is the Petitioner. You can propose yourself as the new guardian or another person whom you think is qualified. Make sure that the person you nominate (the nominee) is willing and able to take on the responsibilities.
8. The second required form is the Child Custody Affidavit. On this form, you tell the court about where the child has been living for the past five years and what other parties may have a legal interest in your petition.
9. If you are claiming that the child is living in an "intolerable living situation," you must also file a sworn affidavit describing the specific facts. This form is called Affidavit of Petitioner for Appointment of Guardian of Minor Alleging Intolerable Living Situation.
10. Some courts will also require you to file an Acceptance of Guardianship form with your Petition.
11. If the child is, will be, or has been, receiving public assistance benefits (TANF or MaineCare), you will also be required to file a Statement Concerning Public Assistance form. Most courts require everyone to file this form. DHHS must be notified and may take part in the case, to see that child support issues are addressed.

Note: Go here for information about seeking a "temporary guardianship" vs. a "permanent guardianhsip."

Step 2. File the forms

You can file the completed forms either by mailing them to the appropriate Probate Court or hand delivering them. Keep a copy for yourself. Make a second copy if you will be doing your own "notice." (see next step)

Step 3. Notify the other parties

You must notify these people that you are petitioning for guardianship:

• the minor child if he or she is 14 years or older,
• the parents of the minor child,
• the person who has cared for the child for the 60 days prior to filing,
• any other guardian or conservator for the minor, and
• any other person as directed by the Judge of Probate.

Getting "notice" means that these parties must get copies of the court papers and letting them know the time and place of a hearing. 

This notice can be done by sheriff's service or by certified mail restricted delivery. In either case, this will provide you with proof that the parties got this notice. Because the mail process can be complicated, some courts will do the service for you, charging you for the cost.

Step 4. Probate Court hearing

What happens next will depend on whether the parties are in agreement or not in agreement. . No one is required to reach an agreement. At the same time, an agreement can save everyone from a potentially long, expensive, and emotionally difficult court hearing.

By Agreement

If the parties agree, the process usually goes more quickly, with the court hearing being less formal. The Probate Court Judge still must approve the guardianship. The Judge will look to see if the documents are in order and decide whether the guardianship appears to be in the best interests of the child. In most uncontested cases, the judge will approve the proposed guardianship. However, the judge always has the final say, even if the parties have agreed.

Contested Case

If the parties are not in agreement, it will take longer. The Probate Court Judge will hold a hearing, or a series of hearings. We strongly recommend that you get the help of a qualified lawyer who has experience with handling this type of case. If you have a low-income and cannot afford a lawyer, and you want guardianship of a child who already lives with you, you may be able to get a free or low-cost lawyer. Contact the Maine Volunteer Lawyer's Project for more information. Also, the probate court can assign a free lawyer to represent you in limited situations; ask the court clerk about this. However, be aware that you do not have the absolute right to a free lawyer, even if you can't afford one. These are only some resources that may be able to help.
The child's parents (or present guardians),  do have the right to a free lawyer to represent them if they cannot afford one. The court will appoint them a lawyer if they apply to the court and the court agrees that they cannot afford to hire a lawyer. When a parent has a lawyer, and the parties do not agree, the Court may also appoint a Petitioner a lawyer if the Petitioner cannot afford to hire a lawyer. 

Guardian ad litem

In some contested cases, the court may appoint a guardian ad litum (GAL) for the child. A GAL may be a lawyer or psychologist or some other professional trained in children's needs. The GAL will talk to all of the parties and the child. The GAL can look at the medical records, school records, and other documents which are relevant to the guardianship. The GAL may also look at your criminal history, medical history, and involvement with DHHS. The GAL will then make a recommendation to the court as to whether a legal guardianship is appropriate and whether your guardianship petition should be granted. The GAL's recommendation is just one piece of evidence which the court will consider.

The court hearing: burden of proof

At the hearing, you carry the burden of convincing the Judge that you should be appointed  as the child's guardian. It is not enough to believe that you would provide a better life for the child. The parents' Constitutional rights are at stake; the law and the court set a high bar. You must prove:

• that the parents (or legal guardians) are unwilling or unable to care for the child, or
• The parent has abandoned the minor child with no good reason, or
• A prior court order gave one parent all rights and responsibilities for the child and no rights to the other parent to make decisions, see records, or contact the child, and the parent who was caring for the child has died and there has been no other change since that order, and 
• that living with you is "the best interests of the child," and
• That you are a suitable guardian for the child. 

Step 5. Court approves or denies guardianship

After hearing and considering all the evidence, the judge will decide whether to appoint a guardian. If appointed, the new guardian must file an Acceptance of Guardianship within 30 days if you have not already done so. If necessary, the Court may appoint another guardian if the appointed guardian fails to file an Acceptance of Guardianship within 30 days.

A temporary guardianship is no longer a process used by the Probate Court:

A parent may use a Power of Attorney to grant temporary rights over a child to a guardian. Power of Attorney covers any power over care and custody of a child. It can not be for more than 12 months. This may be helpful when a parent is being deployed or is otherwise unavailable to temporarily meet their child’s needs. A parent should speak with an attorney about how to do a Power of Attorney. Contact the Maine Volunteer Lawyer's Project for more information.

What is a Parental Appointment of Guardian and when is it used?

A parent may appoint a guardian for a minor child by will or other signed writing. The appointment can limit the powers given to the guardian, and can be called off or changed by a parent before it is confirmed by the Court. A parent may file a Petition for Guardianship of a Minor. The purpose of a parent filing is to have the Court confirm the parent’s selection of a guardian, and terminate the right to object. The Court must find: 

1. The parent will likely become unable to care for the child within 2 years, and
2. The parent provided notice to:
   1. the minor child if he or she is 14 years or older,
   2. the parents of the minor child,
   3. the person who has cared for the child for the 60 days prior to filing, 
   4. Any other guardian or conservator for the minor, and
   5. any other person as directed by the Judge of Probate.

The Court may confirm the parent’s selected guardian and terminate the right of others to object.

 
When does the guardian start to act as a guardian under a Parent’s Petition?

When the parent dies or is determined to be unable to care for the child by a doctor, then the guardian’s appointment can be made effective. The guardian must: 

1. File an Acceptance of Appointment by the Guardian,
2. attach a copy of the will or doctor’s note finding the parent can no longer care for the child, and
3. provide notice to the same people as listed above. 

Unless the guardianship was previously confirmed by the Court, the notice must state that the person notified has the right to object in writing to the court. Ask the Court for confirm their status as guardian, if not previously confirmed. 

Note: The appointment of a guardian by a parent does not stop the parental rights of any other parent. If another parent objects, then the guardian may look to the burden of proof outlined above. 
 

More tips

Here are some other issues to consider when petitioning for guardianship:

• The Probate Court has the flexibility to limit a guardianship.  This allows you to request, for example, that the child will live with you and you will make most decisions, but the parent will keep narrowly-defined specific rights. For example, a parent could visit the child at certain times or take part in certain major decisions. Some courts seem more receptive than others to this type of arrangement.
• You may want the court to order child support payments at the same time that guardianship is granted.
• You may wish to have more than one person appointed guardian so that if anything happens to you and you are no longer able to parent the child, someone else already has the legal authority to do so. This is called "co-guardianship."
• Children fourteen years old and older are asked to sign their agreement with the guardianship.
• A court can require you to report on the condition of the minor if an "interested person" asks for it. Some courts require an annual update.
• In order to change guardianship back to a parent, the parent would need to petition the Probate Court to terminate the guardianship.
• Once you become the legal guardian of a child, you remain the child's guardian until they turn 18 or until the court changes the order.

Related information

To find out more about other kinds of legal relationships caretaker relatives might consider, go to: Legal Guide for Maine Grandfamilies (scroll down to find link) from Families and Children Together. This includes more information about power of attorney, DHHS custody, foster care, adoption and more.

DHHS also provides information where a child is in DHHS custody - Permanency Guardianship Option.

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Updated by PTLA: December, 2024