There is a vast misunderstanding of the terms used when dealing with the rights of parents.  In Maine, the Family Court does not use the term “custody” and it hasn’t for a number of years.  The two major concepts that encapsulate that term are “parental rights and responsibilities” and “primary residence.”

The phrase “parental rights and responsibilities” includes a number of different elements. In most cases, parents will be awarded “shared parental rights and responsibilities” which means that “most or all aspects of a child’s welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities, and both parents confer and make joint decisions regarding the child’s welfare.”1  Some examples of the matters that pertain to the child’s welfare are where the child will attend school, whether the child will practice a certain religion, or whether the child will have elective surgery.  There are times when the court will allocate certain rights to one parent, or give one parent sole parental rights and responsibilities, but that is certainly not a normal occurrence.

The term “primary residence” addresses where the child will live most of the time.  When one parent has primary residence the other parent will have a parent-child contact schedule.  There is also a possibility for the parents to agree to or for the court to order “shared primary residence.”  This means the child spends substantially equal time with both parents.

In addition to the major components described above, the Family Court also addresses issues including, but not limited to:  child support; transportation of the child; health insurance; and income tax-dependency.

If the parties cannot reach an agreement on parental rights and responsibilities and primary residence, the case will likely go to a trial.  When the case goes to a trial, the Court must apply the “best interest of the child” standard when making its decision and it has broad discretion when issuing its order.  At trial, the parties must each present their position as to what they want the Court to do by presenting evidence.  Evidence can be offered to the Court in the form of documents, or exhibits, and oral testimony from people with personal knowledge about the facts and circumstances of the case.  The opposing side is always given an opportunity to cross-examine the witnesses presented by the other party.

Sometimes, when there is a disagreement regarding the primary residence of the minor child, the parties may agree to the appointment of a guardian ad litem.  This is an individual with specialized training who does an investigation outside of the court context and then makes recommendations as to what he or she believes the Court should do, based on the “best interest of the child.”  The appointment of a guardian ad litem, or GAL, typically eliminates the need for a child to have to appear in Court because one of the responsibilities of the GAL is to report to the Court the preference of the child, if any.  The preference of the child, while one factor, is only one of many things the Court considers when making its decision.  Sometimes, the GAL recommends, and the Court decides, that what a child wants is actually not in the child’s best interest.

Due to the importance of the Court’s decision in matters involving children, we strongly advise all parents to retain legal counsel with whom they feel comfortable to assist them in what can be a confusing and emotional process.

Caitlyn S. Smith, Attorney at Law, Rudman Winchell
Caitlyn S. Smith, Esq Rudman Winchell


1.  The entire text of the “best interest of the child standard” can be found at 19-A M.R.S. §1653(3) or online at:

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