Grandparent Visitation Rights
CONTENTS
| Do I have the right to see my grandchildren? |
Under current Maine law, you may ask a court to give you the right to see
your grandchildren. But you must meet several legal tests. This page explains
the general rules.
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Note
The Maine Supreme Court has ruled that the
courts cannot interfere with a parent's decision about allowing a grandparent
the right to visitation unless there is an "urgent reason" such as
"extraordinary contact" between the grandparrent and the child. In
November, 2000, the Court found an example of this "extraordinary contact" in a case
where the grandparent had acted as the parent in the past and had a strong
relationship with the child. In a case in 2003, the Court found that normal,
intermittent contact with a grandchild did not meet this standard.
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Click
here to go to the Court website and read the Maine Court's 11/00
decision. Here is
the other case mentioned above, decided in April 2003, where the
Court found that the grandparent did not meet the "urgent reason" test.
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| When can I go to court to ask for formal
visitation rights? |
Consider going to court only when your grandchildren's parent is
keeping you from seeing your grandchildren and you have already done
what you can to work things out with the parent. You may ask a court to give
you "reasonable rights of visitation or access" if you can show
that:
- At least one of the child's parents or legal guardians has died; or
- You have a "sufficient existing relationship" with your
grandchild; or
- You do not have a sufficient existing relationship but you have made
a "sufficient effort" to have such a relationship.
| How do I ask the court for visitation? |
File a petition in the District Court serving the town where the child lives.
This means mailing or handing the papers to the clerk of that court. To show that you
have a "sufficient existing relationship" with your grandchild, or
that you have made "sufficient efforts" to establish a
relationship, you must also file an affidavit. In the affidavit, you must
describe your relationship, or your efforts to establish a relationship with
the child, and state that you meet this legal standard.
| Will the child's parents be involved? |
Yes. You must "serve" copies of your court papers on at least
one parent or legal guardian. The parents (or legal guardians) can file their
own affidavit and give you a copy.
After reading your affidavit, the District Court judge must decide
whether it is more likely than not that you meet the "sufficient
relationship" test. If the judge believes that there is either a
"sufficient existing relationship" or a "sufficient effort to
create a relationship," then you will have a hearing on your petition.
(The law suggests that you will also get a hearing if your petition relies
only on the fact that one parent has died.
See criteria above.)
| Do I get a court hearing right away? |
|
Sometimes the judge will require you to go to mediation. This means that
you and the parents must meet with a trained mediator to try to work out a
solution to your issues. If you can reach agreement, it must be written out
and signed by all parties. Then the judge will review it. If you can't agree
after mediation, you will go on to a hearing.
If you are ordered to go to mediation, take it seriously. A judge can
order penalties against you if:
- you don't make a good faith effort to mediate, or
- you fail to show up at a mediation session, and you don't have a
good reason for missing it.
| If I go to a hearing, how will the judge decide? |
The judge will listen to both you and the parents, as well as any other
witnesses called by either side. Court rules of evidence and procedure will
apply. The judge must then decide if giving you visits would:
- be in the best interests of the child, and
- not significantly interfere with any parent-child relationship or
with a parent's authority over the child.
In making that decision, the judge will look at:
- The age of the child;
- Your relationship with the child, including the amount of contact you
have had with the child;
- What the child would like, if she is old enough to have an opinion;
- What the child's current living situation is like and the need for
continuity;
- The stability of any proposed living arrangements for the child;
- Your and the parents' motives and ability to give the child love,
affection and guidance;
- The child's adjustment to his or her home, school or community;
- Your and the parents' ability to cooperate or learn to cooperate in
child care;
- Methods of helping you to cooperate and settle disputes and your
willingness to use those methods;
- Whether you have been convicted of a sex offense or sexually violent
offense (as defined by Maine law); and
- Anything else relating to the child's well-being.
Note
In the November 2000, Maine
Supreme Court case mentioned above, the court stated that the judge
should also "give significant weight" to the parents' opinion.
| Can the judge's order be changed? |
Yes. A judge can change or end a visitation order if circumstances change
and one of the parties goes back to court to ask for a change.
Also, you can appeal the judge's decision to
Maine Supreme Judicial Court. The deadline
is 21 days from the judge's decision. For most people, this would be hard to
do without a lawyer.
| Do I still have rights when my
grandchildren are related to me by adoption? |
Yes. You only lose your right to ask for visitation if somebody else
later adopts your grandchild.
| Can I get involved if my grandchild is the
subject of a child protection proceeding? |
Yes. You have three options. You can ask the court informally,
either orally or in writing, to become an "interested person" or a
"participant." The third option is to file and serve a
formal court motion, requesting "intervenor status."
To become an "interested person" you must show that you have a
"substantial relationship" or "substantial
interest." If you become an "interested person," you may
attend all court proceedings, unless the court finds good cause not to
include you. This does not include the right to be heard by the court
or the right to present or cross-examine witnesses, present evidence, or
see the court papers or records.
To become a "participant," you must show that:
- you are an "interested person" and
- including you in the court proceedings is "in the best interests
of the child" and
- including you is consistent with the purposes of the child protection law
As a "participant," you have the right to be heard in
court, but the right to present or cross-examine witnesses, present evidence
or have access to court documents.
To become an "intervenor" you must show that your rights may be
adversely affected, unless you are given status as a party in the
case. This is the most difficult standard to meet. An "intervenor"
has the same procedural rights as other parties to the case. You can
speak at hearings, present or cross-examine witnesses, present evidence and
see court documents.
If the court grants you any of these three roles, you then have the right
to ask for reasonable rights of visitation. You also have the right to
ask that the child be placed with you. (If you are an "interested
person," you must make this request in writing.) The court will give you
priority consideration in placing the child. In all cases, placing the child
in any home must be "in the best interests of the child," and
consistent with the child protection laws.
| If my grandchild is placed for adoption,
will I lose my visitation rights |
If your grandchild is placed with prospective adoptive parents and they
have signed an adoption placement agreement, your visitation rights
are suspended. If the adoption does not become final within 18 months, any
visitation rights allowed earlier by a judge are restored. Once the adoption
becomes final, your visitation rights will end for good. However, if the new
adoptive parents wish, they may let you keep seeing your grandchild.
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Notice
© Pine Tree
Legal Assistance
May 2004
Sometimes the laws
change. We cannot promise that this information is always
up-to-date and correct. If the date above is not this year,
call us to see if there is an update.
We provide this
information as a public service. It is not legal advice.
By sending you this information, we are not acting as your lawyer.
Always consult a lawyer, if you can, before taking legal action.
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