What Legal Recourse Is There for Non-Traditional Parents During a Maine Divorce?
Maine has recently adopted the Uniform Parentage Act, which is an attempt by the legislature, and I think a good one, to make more uniform when and under what circumstances the court assigns or attributes parental rights to a non-biological parent. That’s been an area that each of the states and other countries in the world have wrestled with because in modern society, often parents are separated with a child. They each get significant others, or get remarried, or something like that, and those significant others act in a profound parental role.
In the event of a dissolution of that relationship, often they don’t want to lose the right to contact with that child who may view them as a parent. There’s new legislation which largely follows the Maine divorce case law but makes it more uniform.
There are also Grandparents’ Rights Act cases. Grandparents’ rights have been largely eviscerated by the Supreme Court case that determined that parental rights are paramount to almost any other right with the exception of if the child is abused – that’s a child protective case that the Department of Health and Human Services would handle – or if the child is in an intolerable situation and a grandparent, for example, brings a probate action to be the child’s guardian. More and more, you see grandparents that have acted as parents not using the Grandparents’ Rights statutory action because large parts of it are unconstitutional and trying to prove that they’re de facto parents under the Uniform Parentage Act.
An additional area of practice that a surprising number of cases come up is for interstate and international custody disputes. There’s been a lot of progress over the last 20 years on how to handle those kind of cases. Between the states of the United States, there’s the Uniform Child Custody Jurisdiction Act, which all 50 states and the territories have adopted largely uniform versions of it. It doesn’t dictate how to decide a case, but it decides where the case is heard so that, for example, a mother or a father can’t take the child out of this state and go to a different state and say, “I don’t know where the mother or the father is. They’re a drug addict. They shouldn’t see the child,” and that state issues an order. Then the other parent finds the child, takes them to another state, and says, “That person is abusive. They shouldn’t see the child.”
You get competing orders, which are confusing to everybody, cause a lot of conflict. The primary aim of the Uniform Child Custody Jurisdiction Act is where the dispute is decided. It’s most often decided in the child’s home state, which is where the child resides and has resided for at least six months. There are some emergency jurisdiction provisions. That has been a wonderful addition because it prohibits other states that aren’t the home state of the child from determining issues that they probably shouldn’t be in the first place.
There’s a corollary internationally, and that’s the Hague Convention. The long title is the Hague Convention for the Protection Against Child Abduction. Actually, the face of child abduction is not usually stranger abduction, but it’s a parent abducting the child and taking them to a jurisdiction that is outside the reach of the United States courts, for example. The Hague Convention, in a very different way, determines what the habitual residence of the child is and whether or not any defenses apply to a return order to the child’s habitual residence where custody issues are decided. My Gorham Maine law office actually does quite a few of those Hague Convention cases, too.