Decisions about Children
Absent a court order, parents have shared rights and responsibilities to raise and care for their children. If a married couple decides to divorce, decisions about “parental rights and responsibilities” are part of the divorce case. See Divorce.
If two unmarried persons with children decide to separate, either or both parents can ask the court for an order stating the rights and responsibilities of each parent. This type of case is called a Parental Rights and Responsibilities or “PR&R” case. See Parental Rights and Responsibilities Cases.
Types of decisions about children
There are many decisions that parents who do not live together must consider about the children, including:
- Where will our children live?
- How will we make important decisions about raising the children?
- How will each of us be involved in our children’s lives?
- How much time will each of us spend with our children?
- How will we take care of the children financially?
- Who will be responsible for uninsured medical expenses and/or claiming the children as dependents on tax returns?
If possible, it is best for children for parents to make these decisions working together rather than asking the court to decide. It is also usually in the best interest of children to maintain meaningful contact with each parent. If parents are unable to make these decisions on their own, the court may need to get involved.
How does the court decide?
The court decides parental rights and responsibilities for both married and unmarried parents on the basis of what is in the best interest of the child. This is the legal standard in Maine law. The best interest of the child takes into consideration many factors. Above all, the court has to first consider the safety and well-being of the child. The court looks at other factors as well, such as:
- The age of the child;
- The relationship of the child with each parent;
- The child’s preference, if the child is old enough to express a preference;
- The stability of living arrangements;
- The capacity of each parent to cooperate with the other parent;
- The existence of domestic violence between the parents; and
- Anything else the court thinks is relevant to its decision.
The entire list of factors may be found in this section of the Maine Revised Statutes.
The court applies the best interest of the child standard in a Divorce or PR&R case by listening to testimony and reviewing admissible documents and other relevant evidence.
When a guardian ad litem (GAL) may be appointed
When parents have very differing views on what is best for the children going forward, the court may appoint a guardian ad litem (GAL).
- The GAL does an investigation and makes recommendations to the court about what is in the child’s best interest.
- The GAL does not represent either parent, but will spend time talking with both parents and the child.
- The GAL’s recommendations may be made in a written report submitted to the court, or in testimony at a court hearing, or both, depending upon the type of appointment and duties set by the court.
How is a GAL paid?
In divorce or PR&R cases, parents are required to pay a GAL directly. The cost of the GAL’s services may be split between the parties, or paid by one party. The total cost depends on the facts of the case, how much work the GAL is required to do, and how much money each GAL asks for the provided services.
More information about what a GAL does in a family matters case may be found on the Guardians ad Litem in Family Matters Cases page.
What will be included in the court’s order deciding parental rights and responsibilities?
Types of decision-making
In Maine, there are three types of parental rights and responsibilities (decision-making) arrangements. The court decides which type will be part of an order in a divorce or PR&R case- shared, allocated, or sole.
Most common is “shared” parental rights and responsibilities. This means:
- Parents have equal rights and input on major issues for the children.
- Parents must make major decisions together, and both parents have access to any records regarding their children.
- Major issues include: education, religious upbringing, medical, dental, and mental health care, travel arrangements, child care arrangements, and residence.
In “allocated” parental rights and responsibilities, the court may divide the responsibilities for various aspects of children’s lives between the parents.
- An example of allocated decision-making is that one parent is assigned the right to decide the children’s religious upbringing, while another parent is assigned the right to decide where the children will attend school.
In some cases, the court awards “sole” parental rights and responsibilities.
- Sole parental rights and responsibilities gives one parent exclusive decision-making about the children’s upbringing.
- The parent not awarded any parental rights and responsibilities may still be responsible for paying child support.
Parents must also decide when the children will live at each parent’s home or residence.
- Depending on the parent-child contact schedule that you and the other parent work out directly or with the court’s assistance, the children may live in one parent's home more than the other's.
- The home the children live in a majority of the time is referred to as their “primary residence.”
- If the children spend an equal amount of time with each parent throughout the course of a year, parents may have “shared primary residence.”
- “Shared primary residence” is most common when parents live relatively close to one another.
- If you and the other parent live in different school districts, you will need to choose a school district for the children and decide where the children will live during the school week.
Giving the other parent advance notice of any intended move
In cases with shared or allocated parental rights and responsibilities, each parent must give the other parent at least 30 days’ notice of any intended move.
Parent-Child Contact Schedule
Parents are in the best position to create a parent-child contact schedule that will meet their children’s needs.
- In general, children do best when there is consistent, meaningful contact with each parent.
- The parent-child contact schedule should also be predictable for the children, and not overly complicated.
- The parent-child contact schedule should be centered around children’s needs.
- Do not use the parent-child contact schedule as a tool against the other parent.
An appropriate parent-child contact schedule depends on a number of factors, including:
- The age of the children, and whether they are in school;
- The level of care-giving that has been provided by each parent;
- Where the parents live in relation to one another;
- Special medical or developmental needs of the children; and
- Whether there has been domestic violence in the home.
A parent-child contact schedule may be very different for an infant than for a 13-year-old child because needs of children change as they get older. For instance, it may be appropriate for very young children to have shorter, but more frequent contact with a non-primary resident parent. But for older children, it may be appropriate to do fewer, longer visits, usually with overnights, that involve fewer transitions throughout the week.
Some parents work out a schedule that allows parents to spend equal time with the children. Usually this involves parents who live close enough to make this schedule work, and who have a good co-parenting relationship.
Parents may want to create a schedule for holidays and vacations as well as the routine schedule for the children. Examples of specific dates that may have an altered schedule include: summer and other school vacations; Mother’s Day; Father’s Day; New Year’s Eve and New Year’s Day; Fourth of July; Easter; Christmas Eve and Christmas Day; Hanukkah; Ramadan; Kwanzaa; and birthdays.
You should consider what holidays and vacations are most important to you in preparation for mediation, if ordered by the court.
Under Maine law, parents have a duty to financially support their children, to the extent they are able. When parents separate, it usually means that one parent will pay another parent money in support of the children for their everyday needs.
More information on child support and how it is calculated can be found on the Child Supportpage.
Tax Issues Involving Children
Parents must decide who will claim various State and Federal tax exemptions, deductions, or benefits for the children. If parents cannot agree on this issue, the court will decide. It is generally presumed that the parent with primary residence claims the children as dependents, but parents can reach a different agreement.
For example, parents may agree that the person who will gain a larger financial benefit will claim one or more of the children. Parents may agree to alternate years claiming the child as a dependent, or, if they have more than one child, to each claim a certain child. Both parents are not allowed to claim the same child as a dependent in the same year.
More information on child-related tax credits can be found on the Pine Tree Legal Assistance website page, Child Related Tax Credits: Who is a ‘Qualifying Child?’
Health Insurance and Uninsured Health Expenses
Whether or not the children are covered under MaineCare, the court’s order will require that at least one parent obtain and maintain health insurance for the children, if it is available at reasonable cost.
There could also be expenses for the children that are not covered by health insurance. In that event, the parent who is receiving child support may be responsible for the first $250.00 of that cost. For anything exceeding $250.00, the parents would be responsible for splitting the cost, in proportion to income. Alternatively, the parents may split the entire cost, in proportion to their incomes.
If there has been domestic violence in the home
If your children have been exposed to domestic violence, the court can put some additional measures in place to ensure their safety, if the court finds it appropriate. These may include:
- Child exchanges in a public setting;
- Supervised parent-child contact;
- Ordering the completion of a domestic violence intervention program;
- Prohibiting the use of alcohol or substances by a parent while the child is in the parent’s care; or
- Prohibiting overnight parent-child contact.
Information on how to request a Protection from Abuse Order can be found on the Abuse & Harassment (Protection Orders) page.
Further information on domestic violence prevention and other services in your area can be found on the Statewide Resources for Families & Children page.