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Chapter 2

Grandfather and Grandson

The Probate Process:
Legal Guardianship and Adoption

Probate Courts are courts that hear special cases, such as adoptions, name changes, guardianships, and adult protective proceedings.  These Courts sit without a jury.  There are 16 Probate Courts and judges in the State of Maine, one for each county.  The judges are part time and are elected.  Probate Courts are often less formal than other Courts and often see people participate without lawyers representing them.  Probate Court decisions may be appealed to the Maine Supreme Judicial Court. 

In order to provide more legal stability for a child in their care, relative caregivers may want to consider legal guardianship or adoption.  Both of these legal relationships are granted in Maine through the Probate Court. (An exception to this rule is a District Court Order of Permanency Guardianship for a child in DHHS custody, which differs from a permanent guardianship.)  This chapter outlines guardianship and adoption, explaining the rights and responsibilities given to legal guardians and adoptive parents.  We also explain the probate processes for guardianship and for adoption, so you will know what to expect and how to prepare for your upcoming case.  To start the process, you should go to the Probate Court in the county where the child lives and get the appropriate forms.
There are guardianship and conservatorship issues for incapacitated adults that are not the subject of this handbook.

Click here to read the Maine laws pertaining to legal guardianship.  Click here for a listing of Maine Probate Courts.


Legal Guardianship of Minors

Legal guardians take on most of the parental rights and responsibilities for a child (called a ward).  The parents lose those rights. This means the guardian makes day-to-day decisions regarding the child. A 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.  Parents still have the right to ask the Court to change or end the guardianship.  The parents still have financial responsibility for the child and may even be ordered by the Court to pay child support.  Legal guardians are not obligated to provide financial support for their wards from their own resources.  The guardians certainly may, and usually do provide support.  A judge may want to know if there is a plan for financial support of the child.

Grounds for Guardianship

A guardian or co-guardians may be appointed if one of the following criteria are met and it is in the child’s best interest:

  • All parental rights and responsibilities of the parents have been terminated or suspended by a court order or other circumstances, or
  • The parents consent to the guardianship, or
  • An intolerable living situation exists (as proved by clear and convincing evidence) for the child in the parent’s home, or
  • A de facto guardian shows (by a preponderance of the evidence) that the parents have shown a lack of consistent participation in the child’s life. 

Clear and convincing and preponderance refer to levels of evidence needed for the Court to make a decision in favor of guardianship.  It is important to remember that the court will not consider the best interests of the child unless parental unfitness is established first.

Who Proposes the Guardian?

The guardian may be self-proposed, proposed by one or both of the parents, or proposed by DHHS.   If the child is 14 years or older, he or she must consent to the person who is seeking guardianship, and may be allowed to propose a guardianship.

Who Can Grant A Guardianship?

The County Probate Court where the child is living is the only court with the authority to grant a legal guardianship in Maine.  The Court can order a full guardianship, meaning the guardian has all the parental rights and responsibilities, or it can order a limited guardianship.  In a limited guardianship, the court order will clearly state the decisions that the guardian can make.  For example, the Court can order a guardianship for medical decisions only.  In a limited guardianship, the parents keep the parental rights and responsibilities for those decisions that the Court did not grant to the limited guardian.  Typically, in cases with children, Courts order full, rather than limited, guardianships.

How Long Do Guardianships Last?

There are two types of guardianships.  A temporary guardianship lasts up to six months, this can be useful for short-term situations.  In some situations, a judge may grant a temporary guardianship immediately and it will last until all parties can come to a hearing on permanent guardianship.  This can give the child stability while awaiting a hearing.  Typically, the person filing the case wants a permanent guardianship.  A permanent guardianship lasts until: 

  •    the child turns 18, is married, is adopted, or dies, or
  •    the guardian dies, or
  •    the guardian petitions the Court to resign, and following a hearing, the Court accepts the resignation, or
  •    the Court terminates the guardianship at the request of the parent,  at the request of the child if 14 years old or older, or at the request of an interested person.  The Court will schedule a hearing if one of these parties files a termination request.

It is clear that despite being called a permanent guardianship, it is not actually permanent and differs from a permanency guardianship, which exists under the District Court child protective proceedings.

Do I Need A Lawyer To Get A Guardianship Order,
Or Will The Court Appoint One For Me?

Although the Probate Court process may seem long or complex, in some situations, you may be able to handle it pro se.  Pro se means that you are able to represent yourself and do not have to hire a lawyer.  However, pro se representation is only recommended for uncontested cases where the birth or adoptive parents or current guardians are willing to consent.  If you decide to represent yourself and not hire a lawyer, you will go through the same steps, as outlined below.

If the parents sign the affidavit of consent and waiver, they are telling the Court that they agree with the guardianship, and they are giving up their right to notice of future Court action in the case.  Both parents must agree, unless one has died or his or her parental rights have been terminated. 

If one or both of the parents do not consent to the guardianship, the case is contested.  If you have a contested case, you may want to try mediation before going to Court.  Mediation may help you and the parents come to an agreement.  Mediation may promote better communication, and is much less expensive than hiring a lawyer to represent you in Court. If you do go to Court with a contested case, it would be wise to hire a lawyer.

If the proceeding is contested, the parents may be eligible for a court-appointed lawyer.  The Court will appoint a lawyer to a parent if:

            1) the parent contests the guardianship,
            2) the guardianship is brought because either there is an intolerable living situation at the 
                parent’s home or there is a de facto guardian seeking legal guardianship, and
            3) the parent is indigent (has very little income).    

The Court may also appoint a lawyer for the person seeking guardianship, if they are indigent and the parents have a court-appointed lawyer.  However, it is unusual for the Court to do this.  The child may also get a court-appointed lawyer if the Court believes that the best interests of the child are not being represented.   Any party may hire an attorney on their own to represent them in a guardianship case or seek a pro bono (volunteer) lawyer.

How Much Will The Guardianship Cost?

Filing the paperwork for a guardianship is not very expensive.  Call your local Probate Court for the cost of petitions and filing fees.  If you have a low income and cannot afford the fees, you can ask the court clerk for a fee waiver application.  Some judges may be concerned whether someone who cannot afford the fees has the resources to raise the child.

However, service costs on the parties may be expensive.  You may have to hire a sheriff to serve the parents.  If you have a low income, you can file a form with the Probate Court asking for the sheriff service costs to be waived.   If you do not know where the parents are, you can ask the court for an alternative service.  You will have to pay for a notice in the newspaper for consecutive weeks. The Court cannot waive the publication fee, it is charged by the newspaper, not the Court.  Finally, you may have to hire a lawyer to represent you in a contested case. 

Probate Court Guardianship Process

This section describes the guardianship process.  The steps may differ slightly from county to county, as well as the length of time it takes to finish the case.

1. Petition the Court

Go to the Probate Court in the county where the child lives and ask for a
Petition for Appointment of Guardian of Minor.  Before filling out the form, you should have a guardian in mind.  You can propose yourself as the guardian or another person who you think is qualified.  The proposed guardian has to sign an Acceptance of Appointment by Guardian of Minor.  If the child is 14 years or older, make sure that the child agrees to the guardianship (or change in guardian) and signs the petition in the section for the teen to sign.  Other forms that the proposed guardian may need to file:

  • Child Custody Affidavit
  • Statement of Public Assistance
  • Affidavit of Consent and Waiver of Notice form
  • Child Support Affidavit (in some cases where the parents agree) 
  • Affidavit on Petition for Appointment of Guardian of Minor Alleging Intolerable Living Situation (if this situation applies)

2.  File the Petition

Once you have filled out the petition and other necessary forms, bring them back to the Probate Court with the necessary fees. 

3.  Notification

State law requires that you notify the following people about the guardianship:

  • The minor child if he or she is 14 years or older,
  • Both parents of the minor child,
  • The person who has cared for the child for the 60 days prior to filing, if that caregiver is not the parent, and
  • Any other person as directed by the Probate Court Judge.

You will need the names and addresses of each of these people. If the person agrees to the guardianship, they can sign a written waiver saying that they do not need to be notified of any future court dates.  The Court requires either the waiver or proof of notification for each of these people. If you do not know the address of any of the people listed above, you will need to publish the notice in a newspaper. You must file a motion with the Court asking permission to serve a person by publication in a newspaper.  Ask the Court for a Service by Publication motion form, which you can fill out and file.  Ask the Court for guidance regarding where and what to publish. 

4.   Guardian Ad Litem

The Court or a party may feel that a guardian ad litem (GAL) should be appointed.  The Court can order that a GAL be involved.  The costs of a GAL are usually paid by people involved in the case, but may be paid by the Probate Court.  A grandfamily that has an income may be ordered to pay this cost.

A guardian ad litem (GAL) is a third person (often a lawyer) who is appointed by the probate judge to recommend to the Court what he or she believes is in the child’s best interests.  The GAL will interview the child, the child's parents, the proposed guardian, and others who are involved with the child (for example, teachers, counselors, doctors, child care workers, family friends, or relatives).  The GAL must consider several factors when determining what is in the best interests of the child.  The GAL must also inform the Court of the child’s preference.

The GAL should write a recommendation report and send it to the parties and the Court.  The GAL should also be at the Court hearing to testify (see #6 below).  Although the GAL makes recommendations to the Court, the judge will make the final decision.

Finally, the GAL should also advocate for services that the child is entitled to but is not receiving. 

5.   Conference   

If the guardianship is contested, you will need a formal court hearing.  First, the Court will schedule a pretrial conference. At this conference the judge will discuss the following:  issues the Court needs to decide, witnesses, exhibits, entitlement to a lawyer, and length of trial.

6.  Hearing and Decision

At the hearing, the Court will consider the evidence that is presented and will make its decision based upon the reasons for the guardianship (such as intolerable living situation or de facto guardian) and what is in the child’s best interests.  

The Court will order guardianship if it finds that:

  • the facts support a guardianship,
  • the legal standards have been met, and
  • a guardianship would be in the best interests of the child.

If one of these factors is missing, the Court will deny the guardianship.

Note:  Procedures can be different in each Court.  The clerk at the Probate Court where you are filing will be able to tell you the procedures of that Court.

Court Reports

Once the guardian is actually appointed, the Court may ask you to file annual reports.  The Court is looking for a descriptive statement of how the child is doing in the guardians’ care.  Check with the Court in your area to find out if an annual report is requested or required.

What If The Child Needs a New Guardian?

If a new guardian needs to be appointed, a new petition for guardianship must be filed with the Probate Court. That new proposed guardian must file an acceptance of appointment of guardian.  Also, the current guardian must either file a notice of resignation or someone must file a notice requesting that the current guardian be removed or the guardianship be terminated.  A parent, a new guardian, a child who is 14 years old or older, or an interested person can file the notice of removal/termination.  The Court will then schedule a hearing on the new petition.

Are There Other Issues To Consider?

A guardianship can give the child more stability; however, it might be threatening to the parents if they do not fully agree with the guardianship order.

It is usually best to try to get agreement to the guardianship.  Consider which options will meet the child’s best interests and be agreeable to all parties - full guardianship or limited, temporary guardianship or permanent.  Remember that permanent guardianship is not really permanent, it can change and can be ended (see below).

Try your best to have an honest dialogue with parents and present all issues to the judge.  Later, if there is a contested termination of the guardianship, it may be helpful that all the key issues were documented during the Court process.

Can the Terms of a Guardianship be Changed?  (Modification)

Once a guardianship is in place, you can still change the guardianship order by modifying it.  A guardian or parent will need to ask the Court for a change.  The Court will schedule a hearing on the request for modification.

For example, you could ask to change a limited guardianship to a full guardianship.  Or, within a limited guardianship, you could change the scope of the guardian’s decision-making powers by adding or deleting items.  You can also add a co-guardian.

What Happens If The Guardian Dies?

If there is only one guardian, then the child will return to the biological parents.  A guardian may petition the Court to name a co-guardian so that the guardianship does not end if one of the co-guardians dies.  Another option is for families to plan for a specific person to petition for guardianship in the event the current guardian dies.

Termination of Guardianship (Ending The Guardianship)

Legal guardianship can end for various reasons. For example, a temporary guardianship automatically terminates after six months.  A permanent guardianship automatically terminates once the child becomes 18 years old or is married or adopted, or if the guardian dies. The Probate Court may terminate a guardianship earlier if it is in the best interest of the child.

An interested person can petition the Court to remove the guardian, or the guardian can file a resignation with the Court. If the parent files for termination of guardianship, the Court may terminate the guardianship unless the judge finds the parent is unfit and it is in the child’s best interest to remain in guardianship.  The person who files the petition has the burden to prove to the Court that the termination is in the child’s best interest, unless the guardianship was in place prior to September 2005.  In this case, the guardian has to prove that the guardianship should not be terminated.  The Court will schedule a hearing.  The guardianship will stay in place until the Court approves the termination or resignation.

When a child turns 18, and becomes a legal adult, the guardianship will end.  If you feel that the child is unable to care for themselves because of a mental or physical disability, you can petition the Court to grant another guardianship.  This would be a petition to become a guardian of an incapacitated adult.  This is a different process.  (For more information, you can contact the Maine Department of Health and Human Services, Office of Elder Services at 1-800-262-2232 or visit their website)

Can Parents Visit With Their Children?

Usually, there is no written agreement for visitation and the guardian can decide whether to allow it and under what circumstances.  A guardian may want a visitation schedule included in the guardianship order if there is substantial tension with the parents regarding visits.  A visitation schedule can reduce arguments about whether or how often visits happen, and can still allow the guardian to cancel visits if necessary for the child’s health and safety.   Some Probate Courts do not include a visitation schedule in their orders.  In that case, the guardian and parent can agree in writing to a schedule, realizing that it is not court-ordered.  Another alternative for parents and guardians is to hire a mediator to help them reach agreement.

Can The Guardian Get Financial Assistance?

Financial assistance may be available for the minor child.  Parents are still financially responsible.  However, if the child is living with a relative caregiver, the child may be eligible for TANF (Temporary Assistance for Needy Families.)  The relative caregiver may or may not be included in the TANF household unit. The child may also be eligible for MaineCareFood stamps may be available, based on the household’s income.   You can apply for MaineCare, TANF, and Food Stamps at your local Department of Health and Human Services office.   To learn more about services available from DHHS and to find your local office, visit www.maine.gov/dhhs or contact them at 207-287-2826.  For more information about financial assistance, see the Resource Guide for Maine Grandfamilies available from Families And Children Together (F.A.C.T.). 

 

Adoption 

An individual person, married couple, or unmarried couple (including gay or lesbian couples) may petition the Probate Court for an adoption.  The parental rights of living parents must first be terminated (ended).  Adoptive parents have all the rights and responsibilities that the biological parents once had. 

Who Can Grant Adoptions?

In Maine, only the Probate Court can grant adoptions.

How Long Does An Adoption Last?

Adoptions are permanent and irrevocable.

Do I Need A Lawyer?

The process can be very complicated.  Usually the person seeking an adoption needs a lawyer.  Biological parents who do not consent to the adoption have the right to get court-appointed lawyers.

Pro se representation (representing yourself) is recommended only for uncontested cases where the birth parents are willing to give up their parental rights.  Before deciding to represent yourself, you may want to consult a lawyer to learn about the legal issues involved in your case.  You will go through the process outlined below, whether you have a lawyer or not.

How Much Will The Adoption Cost?

Adoption can be very expensive, particularly if you need a home study or a lawyer. However, if you adopt the child directly from DHHS custody, then DHHS will pay for the home study.  You may also be able to get adoption assistance, which will cover some legal fees.  Some Probate Courts may waive the home study if the adoptive parent is a blood relative.  Ask the Probate Court staff in your county about this and cost of filing fees, petitions, fingerprinting fees, and background checks on each adopting parent.

Probate Court Adoption Process:

1.   Petition the Probate Court

Any married couple, unmarried couple (including gay or lesbian couples), or individual may petition the Probate Court with a request to adopt a person, and to change that person's name. Get all the forms you will need from the probate clerk in the county where the child lives.  (See the Appendix for list of forms on page 35.)

2.   Get consent

   The Probate Court must receive written consent to the adoption from:

  • the person being adopted if that individual is 14 years or older, and
  • the living biological parents of the person being adopted, and
  • any person or agency who has legal parental rights and responsibilities or guardianship of the person being adopted. 

A person’s or agency’s lack of consent may be overruled by a judge if the consent was withheld unreasonably.  The persons trying to adopt must prove to   the judge that the lack of consent is unreasonable.

The biological parents do not have to consent if:

  •    The person being adopted is older than 18, or
  •    The biological parents’ parental rights and responsibilities have been voluntarily 
       terminated or terminated by a court order.
     

3.   If Parental Consent Is Not Given

If the parents are not consenting to the adoption, or they cannot be located, the petitioner needs to first petition (ask) the Probate Court to terminate parental rights.  The Termination of Parental Rights is a separate process.  All interested parties must be notified and the Court must hold a formal hearing.  The judge will make a decision based on clear and convincing evidence. Before the child can be adopted, there must be a termination of parental rights. 

4.   Home Study

The state requires a home study for all adoptions, unless the petitioner is a blood relative or a step-parent.  DHHS or a licensed adoption agency must do the home study.  This is an investigation into whether the proposed home and family are suitable for the child.  The home study can be very expensive.  The Probate Court may waive this requirement if the petitioner is a blood relative of the child.  However, some Probate Courts will not waive this requirement for anyone.  (Click here for a list of licensed adoption agencies)

5.    Background Check

Fingerprinting and State Bureau of Investigation (SBI) background checks are required for all adoptions and the petitioner must pay for them.

6.    Finalization

The Court will grant a final decree of adoption after all necessary written consents have been filed with the Court,  or the parents’ rights have been terminated.  If required, the home study must be completed and filed.  The petitioner must be a suitable adopting parent who wants to parent the child. The Court needs to decide that the adoption is in the child’s best interests.

7.    Appeal

Any party may appeal the final decree to the Supreme Judicial Court.

Are There Other Issues To Consider?

Of all the legal relationships we discuss here, adoption provides the most legal stability for the child.   In an adoption, financial eligibility for services will be determined by the family income.  This is sometimes different from guardianship and other custodial relationships, where eligibility may be based on the child’s income separate from the family.  If you adopt directly from DHHS custody, you may receive adoption assistance.  (See below)

Can An Adopting Parent Get Financial Assistance?

Depending on your income and assets, you may be able to get Temporary Assistance For Needy Families (TANF), food stamps, MaineCare, or childcare vouchers. Eligibility is based on the entire family unit.  For more information about assistance, see Resource Guide for Maine Grandfamilies from Families And Children Together (F.A.C.T.).  If you are adopting through DHHS, you may be able to get adoption assistance.  Ask the caseworker or contact Adoptive and Foster Families of Maine at 1-800-833-9786 about the rules and how to apply.