Your rights as a parent do not stop when you are in the military and called to active duty. There are many things to consider and plan for, especially if you are separated from your child’s other parent. This is a summary of some of the relevant Maine laws that may help you understand your rights.
Parental Rights and Responsibilities
Under Maine law parents have equal rights to their children. When parents are not together, they may not always agree to what should happen with their children. A court order can set out what each parent’s rights are. In Maine this is called “parental rights and responsibilities.” There is no such thing as “custody” in Maine. If parents were never married, the Court case is a Parental Rights and Responsibilities case. If parents were married, then parental rights and responsibilities of their children will be included in the Divorce case.
Parental rights and responsibilities means: a parent’s rights over and responsibilities to his and her children. This includes:
- primary residence (who the child lives with),
- contact (or visitation),
- access to records,
- the right to be notified of a child’s relocation, and
- child support.
Parental rights and responsibilities are decided by looking at the “best interest of the child” (BIC). Maine law lists 20 factors for the BIC. The most important factor is the safety and well-being of the child. Some other factors include:
- the age of the child,
- the relationship of the child with each parent,
- the stability of the child’s living arrangement,
- the ability of the parents to cooperate with one another, and
- a parent’s history of violence towards the other parent or the child.
What will not be considered is a parent’s leaving the family home if the parent left because of:
- domestic violence,
- an agreement with the other parent, or
- at the request of the other parent.
Protections for National Guard and Reserve Members
Maine law protects parents who are members of the National Guard or Reserves who are called to active duty for more than 30 days. If a parent is called into active duty, that absence does not count against them. A pre-existing court order may give the deployed parent primary residence of the children. If that service member is called to active duty for more than 30 days, primary residence cannot be changed during the deployment unless it is in the child’s best interest.
These protections apply when the active duty is:
- in support of an operational mission that the reserve components were ordered to without their consent, or
- an activation for a period of war as declared by Congress, or
- an activation for a period of a national emergency as declared by the U.S. President or by Congress
View the entire law here: Title 37-B MRSA Section 343
Power of Attorney for a Child (POA)
Maine law lets a parent give a power of attorney over his/her child to another adult. It does not require going to court. Instead, a parent can sign a document that will have legal effect. The parent decides what rights over the child he or she is giving to another person. But a parent can never authorize someone else the right to consent to the adoption or marriage of a child under 18 years old.
A power of attorney lasts for a maximum of 12 months. For a parent who is a member of the National Guard or Reserves and who is ordered to active duty for more than 30 days, the POA can be automatically extended. The extension will last until 30 days after the parent is not under an order of active duty. It can also be until a court orders an end date.
The Maine law giving these protections is:
Title 18-A MRSA Section 5-104
Legal guardianship transfers parental rights and responsibilities of a child to an adult who is not the child’s parent. A guardianship can be a full guardianship (all the rights) or limited guardianship (only certain specified rights). In Maine guardianships must be ordered by the Probate Court. The adult who wants to be the guardian files a petition. Parents and children 14 and older must get notice of the petition. Parents can agree to the legal guardianship or ask to be a co-guardian with the petitioner. If parents do not agree, a Court hearing will be scheduled.
The Court may order a temporary guardianship before a hearing is scheduled. A temporary guardianship can be for up to 6 months. It can be automatically extended in cases where a parent is a member of the National Guard or Reserves and is ordered to active duty for more than 30 days. The extension will last until 30 days after the parent is not under an order of active duty or until the court orders.
In Maine there are several reasons that a guardian may be appointed. They are:
- consent by the parent(s)
- a temporary intolerable living situation with the parent
- “de facto” guardian and demonstrated "lack of consistent parental participation" (these are Maine-specific legal terms)
- termination or suspension of parental rights, or
- a will (with the death of both parents or the death of one parent and incapacity of living parent)
It is important to note that a parent serving in the U.S. Armed Forces cannot be considered to have demonstrated a "lack of consistent participation." In other words, the service of a military member cannot be used against him or her in a guardianship case over his or her child.
The Maine Service Members’ Civil Relief Act
There is a federal Service members’ Civil Relief Act (SCRA) that applies in all the U.S. states and territories, and there is a State of Maine SCRA that applies only in Maine. These laws give several extra legal protections to service members. This includes some protections from legal actions against you, both in the courts and before administrative bodies. For example, if the service member needs more time or the chance to appear by video or phone, these laws allow for alternatives.
The Maine Service members’ Civil Relief Act has an extra protection for parents. It allows a service member whose service interferes with seeing their child to temporarily transfer visitation rights. Visitation rights can only be transferred to a relative who has a significant connection with the child. The relative may be the service member’s parent, sibling, spouse (step-parent), etc. However, you must ask a court to order this temporary transfer of rights. It is not something you can execute on your own, like a Power of Attorney (see above). Assuming that a Maine court ordered your visitation rights, contact that court to ask for an amendment to your order.
Maine law giving this option to service members:
Title 37-B MRSA Section 389-A
Expedited Visitation Enforcement for Active Duty Mainers
Maine passed a law in 2015 allowing faster enforcement of visitation orders for some service members who are Maine residents.
Who can use expedited visitation enforcement?
Active duty service members, including people in the National Guard, who are:
- Maine residents
- Deployed or stationed outside the state of Maine, and
- Have court-ordered visitation
If you fall into these categories, you can go to a Maine court to request expedited enforcement of your visitation order. This enforcement can be done with two days or, in some cases, less notice to the parent with custody of the child. As in all cases, the court must decide if this is appropriate and in the best interest of the child. When you make this request for enforcement, the court should make a decision about the visitation as quickly as necessary. The court should consider the circumstances of your deployment, where you are stationed, and the need for making the decision quickly.
To help implement this new law, the courts offer two standard forms. Use these to ask the Court for help:
Learn more about laws affecting service members at Stateside Legal.
Thanks to the Tibor and Anna Doby Veteran Support Fund for supporting our efforts to educate our military servicemembers and veterans about their legal rights.