NOTICE: Probate Forms GS-101 (Petition & Child Custody)
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.
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. 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.
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.
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 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. 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:
- 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.
- 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.
- 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.
- Some courts will also require you to file an Acceptance of Guardianship form with your Petition.
- 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."
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)
You must notify these people that you are petitioning for guardianship:
- the minor child if he or she is 14 years or older and has not yet consented,
- the parents of the minor child,
- the person who has cared for the child for the 60 days prior to filing, and
- any other person as directed by the Judge of Probate.
Getting "notice" means that these parties must get copies of the court papers.
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.
Service by Certified Mail
Take copies of the forms you are filing with the court to the post office. You will need one set of copies for each person that you need to notify. Tell the postal clerk that you need to send the papers by certified mail. Make sure you ask for a "Return Receipt" and "Restricted Delivery." This costs more and involves a few extra steps. Get forms and help from your post office. File with the probate court clerk the green cards you get back from the post office, to prove that your forms were delivered.
Service by Sheriff
Mail or take the original and copies of your forms to the sheriff's office (one set of copies for each person to be served). In a letter, or in person, ask the sheriff’s office to serve the papers on the other parties. Give their home addresses. If you think that a party will be hard to find at home, give a work address or place where that person is likely to be. The deputy who "serves" the papers will complete the "proof of service" information and return the original to you. The Sheriff charges for this service (about $15-$30 per service).
Any party is allowed to "waive" notice if he wants to. Most courts will not accept a simple signature but will require that the signature on a statement of waiver be notarized. If any parties in your case want to sign waivers, check with your Probate Court to find out what forms they require.
In rare cases, where you cannot locate the parents, the court may allow "service by publication." This means publishing notice in a newspaper. The Probate Court must approve this method of notice, if all other methods fail.
What happens next will depend on whether the parties are in agreement or whether the matter will be contested. 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.
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. She 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.
If the matter will be contested, 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), on the other hand, 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.
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 interview all of the parties and the child. The GAL can gain access to the medical records, school records, and other documents which are relevant to the guardianship. The GAL may investigate you, including 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 he should appoint you 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, and
- that living with you is "the best interests of the child."
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, if you have not already done so. If necessary, the Court will appoint a temporary guardian and/or a guardian ad litem until the new legal guardian is assigned and has accepted the responsibilities of guardianship.
What is temporary guardianship and when is it used?
The procedure discussed above is called a "permanent guardianship." It lasts until the child turns 18 or the court changes the order. In some cases, the child's situation may call for only a temporary change of guardianship. This can last up to six months. You may want to consider a temporary guardianship if:
- the parents agree that they need some time to get their lives in order but do not want to agree to a permanent guardianship, or
- all parties, for whatever reason, need a quicker, short-term solution for the child
The procedures explained above are similar. To save time where appropriate, the court can relax the notice rules. You can get the Petition for Appointment of Temporary Guardian for Minor form here.
Here are some other issues to consider when petitioning for guardianship:
- The Probate Court has the flexibility to grant a "limited 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.
- A new law (eff. 9/27/11) also gives the judge the power to order "transitional arrangements." These orders could address issues such as "rights of contact, housing, counseling or rehabilitation."
- You may want the court to order child support payments at the same time that guardianship is granted.
- If you have been caring for the child as a parent before going to court, you may be eligible for "de facto guardianship," which may assist you in a successful petition even if a parent is not in agreement with the guardianship.
- 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 he turns 18 or until the court changes the order.
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.
Many thanks to Teri McRae, former Register of Probate and adviser in probate matters, for her help with creating this information.
January 2010; partially updated October 2012, August 2013, and September 2014