Grandparent Visitation Rights
- Do I have the right to see my grandchildren?
- When can I go to court to ask for formal visitation rights?
- How do I ask the court for visitation?
- Will the child's parents be involved?
- What happens next?
- Do I get a court hearing right away?
- If I go to a hearing, how will the judge decide?
- Can the judge's order be changed?
- Do I still have rights when my grandchildren are related to me by adoption?
- Can I get involved if my grandchild is the subject of a child protection proceeding?
- If my grandchild is placed for adoption, will I lose my visitation rights?
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.
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.
Go to the Court website to 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.
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.
What happens next?
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.
See also our information on Guardianship of a Minor
Maine's Legal Services for the Elderly also posts information about Grandparent Rights. And, if you are 60 or over, you can call them about your issues.
Updated May 2004