Children often benefit greatly from contact with a wide circle of family members, including grandparents. In most cases, however, parents have the right to make decisions about their children, and this includes whether the children will visit with their grandparents.
In special circumstances, a grandparent may ask the court to grant visitation with a grandchild.
When can grandparents ask a court to order visitation?
A grandparent has "standing," i.e., the right to file and be heard in a case for reasonable rights of visitation if:
- There is a sufficient existing relationship between the grandparent and the grandchild;
- The absence of contact between the grandparent and child will substantially and negatively affect the child; or
- Another compelling state interest justifies the court’s interference with the parent’s fundamental right to deny the grandparent access to the child.
What is a “sufficient existing relationship?"
A “sufficient existing relationship” is defined by Maine law as a "relationship involving extraordinary contact between a grandparent and the grandchild." This includes the following circumstances:
- The grandparent satisfies the standard for being a “de facto” parent (see Ways to Become a Parent page); or
- The grandparent has been a primary caregiver and custodian of the child for a significant period of time.
Court procedure for grandparent visitation
- First, a grandparent must file papers with the court, including an affidavit stating under oath that one or more of the “standing” requirements above have been met. The grandparent must serve these papers on all parents or legal custodians of the child. See Court Process in a Family Matters Case page for more information on how to serve court papers.
- Based on the court papers and affidavits, the court first decides if the grandparent has presented enough information to go forward with the case.
- If necessary, the court may schedule a hearing to help it determine disputed facts on the question of standing.
- If the court decides there is enough evidence for the case to go forward, the court may order parties to try to resolve the case through mediation. Mediation is an informal process in which the parties try to reach a mutually acceptable decision with the help of a specially-trained person appointed by the court. The mediator does not take sides or decide who is right. See a short video on Mediation in a Maine Family Matters case.
Hearing on whether to grant visitation
- If, after the grandparent has shown standing and mediation has not resolved the case, the court will hold a hearing to determine whether to grant the grandparent reasonable rights of visitation.
- The court may appoint a guardian ad litem (GAL) to represent the best interest of the child. For more information on the role of a GAL, please see the Guardians ad Litem in Family Matters Cases page.
How does the court decide whether to allow grandparent visitation?
The court may grant a grandparent reasonable rights of visitation or access to a minor child if:
- The grandparent can show standing;
- The rights of visitation or access would be in the best interest of the child; and
- Visitation would not significantly interfere with any parent-child relationship or with the parent’s right to make decisions for the child.
To help the court make this decision, it considers many factors, including:
- The age of the child;
- The relationship of the child with the child’s grandparents, including the amount of previous contact;
- Whether one or more of the child’s parents or legal guardians has died;
- The preference of the child, if old enough to express a meaningful preference;
- The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
- The stability of any proposed living arrangements for the child;
- The motivation of the parties involved and their capacities to give the child love, affection and guidance;
- The child’s adjustment to the child’s present home, school and community;
- The capacity of the parent and grandparent to cooperate or to learn to cooperate in child care;
- Methods of assisting cooperation and resolving disputes and each person’s willingness to use those methods;
- Any other factor having a reasonable bearing on the physical and psychological well-being of the child; and
- The existence of a grandparent's conviction for a sex offense or a sexually violent offense.
Pine Tree Legal Assistance, Grandparent Visitation Rights in Maine web page.
Legal Services for the Elderly, Elder Rights Handbook, Grandparent Rights web page.