LEGAL RELATIONSHIPS

This is a brief summary of your options for a legal relationship with the child.  For more detailed information, see Legal Guide For Maine Grandfamilies, available from Families And Children Together (F.A.C.T.).  This legal guide includes information on formal and informal placements, court processes, educational issues, and other legal resources.

If you are taking care of your relative’s child, what rights do you have?  What if the parent of the child decides that he or she wants to take the child back?  What decisions can you make about school or about medical care?  Your rights to have the child and your rights to make decisions for the child depend on the legal relationship that you establish.

Under Maine law, parents are the natural guardians of their minor children.  This means, unless there is a change in the legal relationship, only parents can get medical and educational services for the child and only parents decide where the child can live.  This section describes possible changes in that legal relationship.

POWER OF ATTORNEY

Power of Attorney is a short-term arrangement you can make without going to court.   Maine law allows a parent to give you Power of Attorney for a child.  Power of Attorney will give you practically all of the power regarding care and custody of the child.  Power of Attorney alone may not allow you to register the child in a school district different from where the parent resides. The Power of Attorney is a written statement from the parents’ that lets you act as the parent for things such as medical care.  More detailed informaion and sample forms are available in F.A.C.T.’s Legal Guide For Maine Grandfamilies.  Power of Attorney only lasts six months.  If you want it to last longer the parent will need to sign a new statement at the end of that time.  The Power of Attorney needs to be signed before a notary public or attorney.  The parent can take back the Power of Attorney at any time.  (At the time of printing of this guide, legislation was pending to change Power of Attorney law.  Please contact F.A.C.T. for more information.)

GUARDIANSHIP

Guardianship can give your relationship with your child more stability.  Guardianship gives you basically all of the legal rights and responsibilities of a parent of a minor child.  To get guardianship, you petition (ask) the Probate Court of the county in Maine where the child currently lives.  Typically, the Probate Court judge grants guardianship with the consent of the parents.  If the parents do not consent to guardianship, the judge can still grant guardianship if the judge finds that the situation meets specific standards and it is in the child’s best interest to do so.  In order to change guardianship back to the parents, the parents would need to petition the Probate Court again.  (Click here to read the law governing guardianship in Maine.) 

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
  write into the guardianship specific rules, for example, the child lives with you, but the parent keeps the right to make decisions about schooling, or keeps visitation rights. 
• 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 not 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.

You can also become a guardian if you were appointed in the parent’s will.

If you have guardianship, you may need to provide the court with an annual update regarding the child.

What is permanency guardianship?

Permanency guardianship is available through a child protective proceeding to some families.  The permanency plan is for the child to live with the caregiver, and this may be an option if the child is in DHHS custody, the caregiver can meet all the requirements, and adoption is not the best option.  Permanency guardianship may provide the child with assistance including MaineCare, a monthly subsidy, college tuition assistance, and/or financial assistance for one-time permanency guardianship expenses.  If you want more information about permanency guardianship, contact the child’s DHHS caseworker and ask for the Permanency Guardianship Option:  A Handbook for Relatives and Others Considering Permanency Guardianship for a Child in Foster Care.

ADOPTION

Adoption is a permanent decision whereby you become the child’s legal parent with all the same rights and responsibilities as any parent.

When can I adopt?

There is a step before adoption when the court terminates the birth parents’ rights.  The parents may voluntarily give up their rights in court, or the judge may terminate parental rights.  Once the court has terminated the parents’ rights, you may petition for adoption.

What is a homestudy?

The adoption will probably require a homestudy.  This means a caseworker will conduct background checks and extensively interview you, other family members, and references that you provide to the caseworker.  The caseworker will tour your home.  After the caseworker has gathered all the information, she or he will recommend whether the adoption is appropriate for the child.

I want to adopt, but I am worried that I cannot afford it.

If the child is in DHHS custody at the time of the adoption, the child may be eligible for adoption assistance.  Adoption assistance may include medical health insurance for the child, a monthly subsidy, and/or financial assistance for adoption expenses.  The amount of monthly subsidy depends on the special needs of the child.  To find out more, call the child’s caseworker.

If the child is not in DHHS custody at the time of the adoption, there will be expenses related to the termination of parental rights and the adoption.  Eligibility for other resources and financial support may also change when the child is adopted.  Feel free to call F.A.C.T. for more information. 

For general information about adoption, call Adoptive and Foster Families of Maine (AFFM) at
1-800-833-9786.

OTHER LEGAL ISSUES

Are there other paths to legal custody?

You may gain some stability in the context of a divorce, a protection from abuse order, or other court case in which the District or Superior Court decides who gets custody of a child.  If the court decides that placing the child with either parent will put the child in jeopardy, the court can award custody to another person.

What if I want to visit my grandchild who is in the parent’s custody?

There is also a special part of Maine law that allows grandparents to petition the District or Superior Court where the child lives for visitation rights.  In some situations when grandparents have established a relationship with the child (or have tried to establish one), or if one of the child’s parents has died, the court can grant visitation rights to grandparents if that is in the best interest of the child.

LEGAL ASSISTANCE

You can petition the court without a lawyer, but the assistance of a lawyer could be a great help.  A lawyer should help you understand the range of possible agreements under guardianship.  He or she can tell you the possible results of taking legal action or not taking action.  If you are going to court, the attorney can guide you through the court system and tell you what the judge will be looking for in order to make a decision in your case.

There is legal assistance for some low-income children and adults.  You can access these services by calling F.A.C.T.  For some eligible families, F.A.C.T. will make a referral to the Maine Volunteer Lawyers Project, which can provide legal educational materials and may also provide an attorney for consultation or representation at no cost to the client.  Low-income caregivers seeking to get guardianship or maintain guardianship may also request the Probate Court appoint an attorney and the court will decide if this is an option.

If you are shopping for a lawyer, be sure to ask the following questions:

• Has the attorney had experience in these types of cases?
• What is the hourly rate?
• Is a retainer required?
• What are the things you can do on your own to reduce the fee?

F.A.C.T. maintains a list of attorneys who have volunteered in the past and have provided services to people raising relative’s children.   F.A.C.T.’s  Legal Guide for Maine Grandfamilies also includes a chapter on Legal Assistance.

Through the Maine Bar Association, www.mainebar.org, or 1-800-860-1460, you can obtain a low-cost referral and initial half-hour appointment.  Even if approached directly, many lawyers offer a free or low-cost initial consultation. 

KIDS LEGAL is a statewide project within Pine Tree Legal Assistance.  KIDS LEGAL specializes in providing legal services addressing the needs of low-income Maine children.  With offices in Portland and Bangor, they provide direct representation, consultations, and group trainings in areas such as education, housing, public benefits, and family law matters. 

Pine Tree Legal Assistance provides assistance for many legal issues related to housing, government assistance, benefits, education, and family law.