By: Rudman Winchell Attorney Anthony Trask

Raising a child is no easy task, even for parents who remain together. When parents split up, the process of making even basic decisions about their child can be complicated and major decisions, such as where the child will live, can become impossible.

When parents decide to divorce Maine’s Family Court is forced to enter an order regarding the rights and obligations of the parties with respect to their child as part of the divorce judgment. When non-married parents decide to live apart there is no legal requirement to initiate a parental rights action to obtain an order from the Court, but doing so is highly recommended, even when the break up is reasonably amicable. The most obvious reason is that a court order provides structure, stability, and certainty that are essential when separated parents are raising a child.

The phrase “parental rights and responsibilities” includes a number of different components. Historically, the thing people were most concerned about was “custody.” Ironically, the Family Court does not use the term custody anymore, but instead, it addresses primary residence (where the child will live most of the time) and parent-child contact (visitation with the parent who does not provide the primary residence). There is such thing as shared primary residence when the child spends essentially the same amount of time with both parents. All things being equal, the Court favors this type of arrangement, however, often things simply are not equal and one parent will be awarded primary residence and the other parent will be given a schedule of parent-child contact.

In addition to these components the Family Court will also address issues such as child support; transportation of the child; health care, including decision-making as well as financial responsibility and insurance; religious upbringing; education; and income tax-dependency to name a few. The Court has broad discretion to enter orders allocating some or all of these parental rights and responsibilities to one or the other parent. When the parties are in agreement an order can be entered by the Court relatively quickly and the parties will have a legal judgment that is enforceable by the Court. When there are disputes between the parties over parental rights and responsibilities the process for resolving these disputes is very often lengthy and can result in substantial expense, not to mention emotional turmoil for the parties and the child.

If the parties agree on parental rights and responsibilities the Family Court will almost always approve the agreement and make it a court order. If there is no agreement, the Court will ultimately make the decision for the parties according what is referred to as “the best interest of the child.” More than just a nice sounding group of words, this phrase represents a legal standard the Court must follow under Maine Law. This standard can essentially be reduced to “the safety and well-being of the child” but the Maine Legislature has actually enumerated more than a dozen specific factors to consider in making this important and difficult decision, only one of which is the preference of the child (and that is only if the child is mature enough to express a meaningful preference). The full list of factors can be located at 19-A M.R.S.A. §1653(3) (

Absent an agreement, the parties must each present their respective positions as to what the Family Court should do in the same manner as any other civil trial. The parties present evidence to the Court through documents and testimony and they are given the opportunity to cross-examine the witnesses presented by the other party.

Complicating this further, the formal Maine Rules of Evidence dictate how and what evidence is admissible and the parties can object to the Court considering evidence if it is inadmissible under these rules. Whereas this process is extremely complex and technical, and fraught with powerful emotions because the well-being of children is involved, it is very difficult for a parent to adequately represent him- or herself in such a proceeding.

Considering the importance of the Court’s decision, we strongly advise all parents to retain the services of a lawyer with whom they feel comfortable and confident to assist them in navigating this difficult process.

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