Maine Legislature, Session 122, LD 1402
Committee Amendment CA_A_S326 (Senate)
Amends: 8-A MRSA §5-I, 18-A MRSA §5

MAINE STATE LEGISLATURE 
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L.D. 1402 
DATE: 6-;2.-05 
(Filing No. S- 3~ 
JUDICIARY 
Reported by: 
Reproduced and distributed under the direction of the Secretary 
of the Senate. 
SENATE 
I22ND LEGISLATURE 
COMMITTEE AMENDMENT A" to S.P. 491, L.D. 1402, Bill, "An 
Act To Provide Guidelines, Standards and Rights for Children and 
the Guardians Who Care for Them" 
Amend the bill by striking out everything after the enacting 
clause and before the summary and inserting in its place the 
following: 
'Sec. 1. I8-A MRSA §5-IOI, sub-§§(I-A), (I-B) and (I-C) 
are 
enacted to read: 
(I-A) 
The 
"best interest of 
the 
child" 
is 
determined 
according to this subsection. 
(a) 
In determining the best interest of the child the court 
shall consider the following factors: 
(1) 
The wishes of the party or parties as to custody; 
(2) 
The reasonable preference of the child, if the 
court considers the child to be of sufficient age to 
express preference; 
(3) 
The child's primary caregiver; 
(4) 
The bonding and attachment between each party and 
the child; 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT A" to S.P. 491, L.D. 1402 
(5) 
The interaction and interrelationship of the child 
with a party or parties, siblings and any other person 
who may significantly affect the child's best interest; 
( 6) 
The 
child's 
adjustment 
to 
home , 
school 
and 
community; 
(7) 
The length of time the child has lived in a 
stable, satisfactory environment and the desirabili ty 
of maintaining continuity; 
(8) 
The permanence, as a family unit, of the existing 
or proposed home; 
(2) 
The mental and physical health of all individuals 
involved; 
(10) 
The child's cultural background; 
(11) 
The capacity and disposition of the parties to 
give the child love, 
affection and guidance and to 
continue educating and raising the child in the child's 
culture and religion or creed, if any; 
(12) 
The effect on the child of the actions of an 
abuser 
if 
related 
to 
domestic 
violence 
that 
has 
occurred between the parents or other parties; and 
(13) 
All other factors having a reasonable bearing on 
the physical and psychological well-being of the child. 
(b) 
The court may not consider anyone of the factors set 
out in paragraph (a) to the exclusion of all others; 
(1-B) 
"De facto guardian" means an individual with whom, 
within the 
months 
immediately preceding the filing of 
a 
petition under section 5-204, subsection (d), a child has resided 
for the following applicable period and during which period there 
has been a demonstrated lack of consistent participation by the 
parent or legal custodian: 
( a) 
If the child at the time of filing the petition is 
under 3 years of age, 
months or more, which need not be 
consecutive; or 
(b) 
If the child at the time of filing the petition is at 
least 3 years of age, 12 months or more, which need not be 
consecutive. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT ,~, to S.P. 491, L.D. 1402 
"De facto guardian" does not include an individual who has a 
guardian's powers delegated to the individual by a parent or 
guardian of a child under section 5-104, adopts a child under 
Article 9 or has a child placed in the individual's care under 
Title 22, chapter 1071; 
(I-C) 
"Demonstrated lack of consistent participation" means 
refusal or failure to comply with the duties imposed upon 
a 
parent 
by 
the 
parent-child 
relationship, 
including 
but 
not 
limited to providing the child necessary food, clothing, shelter, 
health care, education, a nurturing and consistent relationship 
and other care and control necessary for the child's physical, 
mental and emotional health and development. 
In determining whether there has been a demonstrated lack of 
consistent participation in the child's life by the parent or 
legal custodian, the court shall consider at least the following 
factors: 
(a) 
The intent of the parent, parents or legal custodian in 
placing the child with the person petitioning as a de facto 
guardian; 
(b) 
The amount of involvement the parent, parents or legal 
custodian had with the child during the parent's, parents' 
or legal custodian's absence; 
(c) 
The facts and circumstances of the parent's, parents' 
or legal custodian'S absence; 
(d) 
The parent's, parents' or legal custodian'S refusal to 
comply with conditions for retaining custody set forth in 
any previous court orders; and 
(e) 
Whether the nonconsenting parent, 
parents or legal 
custodian was previously prevented from participating in the 
child's life as a result of domestic violence or child abuse 
or neglect. 
Serving as a member of the United States Armed Forces may not be 
considered demonstration of lack of consistent participation; 
Sec. 2. 18-A MRSA §5-204, as amended by PL 2001, c. 554, §2 
and PL 2003, c. 689, Pt. B, §§6 and 7, is further amended to read: 
§5-204. Court appointment of guardian of minor; conditions 
for appointment 
The court may appoint a 
guardian or coguardians for 
an 
unmarried minor if: 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT ,~, to S.P. 491, L.D. 1402 
(a) 
All parental rights of custody have been terminated or 
suspended by circumstance or prior court order; 
(b) 
Each 
living 
parent 
whose 
parental 
rights 
and 
responsibili ties have not been terminated or the person who is 
the legal custodian of 
the unmarried minor 
consents to the 
guardianship and the court finds that the consent creates 
a 
condition that is in the best interest of the child; et 
(c) 
The person or persons whose consent is required under 
subsection (b) do not consent, but the court finds by clear and 
convincing evidence that the person or persons have failed to 
respond to proper notice or a living situation has been created 
that is at least temporarily intolerable for the child even 
though the living situation does 
not rise to the level of 
jeopardy required for the final termination of parental rights, 
and that the proposed guardian will provide a living situation 
that is in the best interest of the childT~ 
(d) 
The person or persons whose consent is required under 
subsection 
(b) 
do 
not 
consent, 
but 
the 
court 
finds 
by 
a 
preponderance of the evidence that there is a de facto guardian 
and 
a 
demonstrated 
lack of 
consistent participation by 
the 
nonconsenting parent or legal custodian of the unmarried minor. 
The court may appoint the de facto guardian as guardian if the 
appointment is in the best interest of the child. 
A guardian appointed by will as provided in section 5-202 
whose 
appointment has 
not been prevented or nullified under 
section 5-203 has priority over any guardian who may be appointed 
by the court but the court may proceed with an appointment upon a 
finding that the testamentary guardian has failed to accept the 
testamentary appointment within 
days after notice of the 
guardianship proceeding. 
If 
a 
proceeding 
is 
brought 
under 
subsection 
(c) 
or 
subsection (d), the nonconsenting parent or legal custodian is 
entitled to court-appointed legal counsel if indigent. 
~ 
contested action, 
the court may also appoint counsel for any 
indigent de facto guardian, guardian or petitioner when a parent 
or legal custodian has counsel. 
If 
a 
proceeding 
is 
brought 
under 
subsection 
(b) 
etL 
subsection (c) or subsection (d), the court may order a parent to 
pay child support in accordance with Title 19-A, Part 3. 
When 
the 
Department of 
Health 
and 
Human 
Services 
provides 
child 
support enforcement services, 
the Commissioner of Health and 
Human Services may designate employees of the department who are 
not attorneys to represent the department in court if a hearing 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT A .. to S.P. 491, L.D. 1402 
is held. 
The commissioner shall ensure that appropriate training 
is provided to all employees who are designated to represent the 
department under this paragraph. 
If the court appoints a limited guardian, 
specify the duties and powers of the guardian, 
section 
5-105, 
and 
the parental 
rights 
and 
retained by the parent of the minor. 
the court shall 
as required in 
responsibilities 
Sec. 3. 18-A MRSA §5-206, as amended by PL 1993, c. 686, §2 
and affected by §13, is further amended to read: 
§5-206. Court appointment of guardian of minor; 
qualifications; priority of minor's nominee 
The 
court 
may 
appoint 
as 
guardian 
any 
person. 
or 
as 
coguardians more than one person. whose appointment is in the 
best ~ate~ests interest of the minor. The court shall set forth 
in the order of appointment the basis for determining that the 
appointment is in the best interest of the minor. 
The court 
shall appoint a person nominated by the minor, if the minor is 14 
years of age or older, unless the court finds the appointment 
contrary to the best ~ate~ests interest of the minor. 
The court 
may not appoint a guardian for a minor child who will be removed 
from this State for the purpose of adoption. 
Sec. 4. 18-A MRSA §5-211, sub-§(b), as enacted by PL 1979, c. 
540, §l, is amended to read: 
(b) 
If the court located where the ward resides is not the 
court in which acceptance of appointment is filed, the court in 
which proceedings subsequent to appointment are commenced shall 
in all appropriate cases notify the other court, in this or 
another state, and after consultation with that court determine 
whether to retain jurisdiction or transfer he the proceedings to 
the other court, whichever is in the best interest of the ward. A 
copy of any order accepting a resignation or removing a guardian 
sha~~ must 
be 
sent 
to 
the 
court 
in 
which 
acceptance 
of 
appointment is filed. 
Sec. 5. 18-A MRSA §5-212, sub-§(d), as enacted by PL 1995, c. 
623, §2, is amended to read: 
(d) 
The court may not terminate the guardianship in the 
absence of the guardian's consent unless the court finds by a 
preponderance of the evidence that the termination is in the best 
interest of the ward. 
The ~~a~Q~aa petitioner has the burden of 
showing by 
a 
preponderance of the evidence that 
eeat~a~a~iea 
termination of the guardianship is in the best interest of the 
COMMITTEE AMENDMENT 
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tJ 
COMMITTEE AMENDMENT ~, to S.P. 491, L.D. 1402 
ward. 
If the court does not terminate 
court may dismiss subsequent petitions 
guardianship 
unless 
there 
has 
been 
a 
circumstances. 
the guardianship, 
for termination of 
substantial 
change 
Sec.6. 18·A MRSA §5.212, sub·§(e) is enacted to read: 
the 
the 
of 
(e) 
In a contested action, the court may appoint counsel 
for any indigent guardian or petitioner.' 
SUMMARY 
This amendment replaces the bill. 
It adds 
concepts 
to 
the definitional section of the 
article of the Probate Code governing guardians. 
This 
amendment 
adds 
to 
the statute 
the 
factors 
to 
be 
considered in determining the best interest of the child. 
In 
addition to the specific factors, the court may consider all 
other factors having a reasonable bearing on the physical and 
psychological well-being of the child. 
This amendment adds a definition of "de facto guardian." 
A 
person who meets the definition of de facto guardian is given 
standing to petition the Probate Court for appointment as 
a 
guardian. 
A person meets the definition of de facto guardian if 
that person has lived with the child in question for either 6 
months or 12 months, depending on the age of the child, of the 24 
months 
immediately preceding the filing of the petition for 
guardianship, 
and 
during 
those 
periods 
the 
parent or 
legal 
custodian has demonstrated a lack of consistent participation in 
the child's life. 
A de facto guardian does not include an 
individual who has a child placed in the individual's care under 
the child protection laws, or pursuant to the adoption laws or 
under a delegation by the parent or guardian. 
This amendment also adds a definition of "demonstrated lack 
of consistent participation," which means a refusal or failure to 
comply with the duties imposed upon a parent by the parent-child 
relationship. 
The court is to consider at least 5 specific 
factors in determining whether there is a demonstrated lack of 
consistent participation by the parent. 
Service as a member of 
the military services may not be considered to be a demonstration 
of lack of consistent participation. 
This 
appointment 
amendment 
adds 
specific 
language 
of 
coguardians. 
Although 
the 
concerning 
the 
statute 
currently 
COMMITTEE AMENDMENT 
· .6" 
COMMITTEE AMENDMENT ,~, to S.P. 491, L.D. 1402 
allows appointment of coguardians, the intent of this amendment 
is to ensure the Probate Court's authority to appoint 2 or more 
persons as coguardians of a child even if all the coguardians do 
not reside together with the child at all times. 
This allows 
appointment of a coguardian to serve as a backup for a coguardian 
with whom the child may usually reside. 
This 
amendment 
adds 
a 
new 
provision 
to 
provide 
for 
appointment of persons who qualify as de facto guardians as legal 
guardians if the appointment is in the best interest of the 
child. 
The appointment may be made without the consent of the 
parents or legal custodians otherwise required to consent to a 
guardianship. 
This amendment allows the Probate Court to appoint counsel 
for an indigent de facto guardian, guardian or petitioner in a 
contested 
appointment 
proceeding 
when 
the 
parent 
or 
legal 
custodian has counsel. 
This amendment provides that the Probate Court may order a 
parent to pay child support when a de facto guardian is appointed 
guardian for the child. 
This amendment requires the court to set forth in all orders 
making appointments of guardians the basis for determining that 
the appointment is in the best interest of the child. 
This amendment corrects a typographical error. 
This 
amendment 
provides 
that 
when 
a 
person 
seeks 
to 
terminate 
a 
guardianship against the guardian's consent, 
the 
person seeking to change the status quo has the burden of proving 
by a preponderance of the evidence that the termination of the 
guardianship is in the best interest of the ward. 
In a contested 
termination proceeding, the court may appoint counsel for any 
indigent guardian or petitioner. 
COMMITTEE AMENDMENT