An Act To Provide Guidelines, Standards and Rights for Children and the Guardians Who Care for Them
Maine Legislature, Session 122, LD 1402
Committee: Judiciary
Sponsors: ROSEN, HASTINGS, PERRY, RA YE, CARR, DUCHESNE, PINGREE, SHERMAN

Legislative Document 
No. 1402 
S.P.491 
In Senate, March 22, 2005 
An Act To Provide Guidelines, Standards and Rights for Children 
and the Guardians Who Care for Them 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Senator ROSEN of Hancock. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senators: HASTINGS of Oxford, PERRY of Penobscot, RA YE of 
Washington, Representatives: CARR of Lincoln, DUCHESNE of Hudson, PINGREE of North 
Haven, ROSEN of Bucksport, SHERMAN of Hodgdon. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 18-A MRSA Art. 5, Pt. 2-A is enacted to read: 
PART 2-A 
DE FACTO GUARDIANS OF MIHORS 
§5-251. 
De facto guardianship: definitions 
As 
used 
in 
this 
Part, 
unless 
the 
context 
otherwise 
indicates, the following terms have the following meanings. 
(a) 
"De facto guardian" means an individual who has been 
the primary caretaker for a 
child who has, within the 24 months 
immediately preceding 
the 
filing of 
a 
petition pursuant 
to 
section 
5-252, 
subsection 
(b), 
resided 
with 
the 
individual 
without 
a 
parent 
present 
and 
with 
a 
lack 
of 
demonstrated 
consistent participation by a parent for a period of: 
(1) 
Six months or more, which need not be consecutive, if 
the child is under 3 years of age; or 
(2) 
Twelve months or more, which need not be consecutive, 
if the child is 3 years of age or older. 
For purposes of this subsection, any period of time after a legal 
proceeding has 
been 
commenced 
and filed is not included in 
determining whether the child has resided with the individual for 
the required minimum period. 
"De facto guardian" does not include an individual who has a 
child placed in the individual's care under Title 22, chapter 
1071 or for adoption under Article 9. 
(b) 
"Lack of demonstrated consistent participation" means 
refusal or neglect 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. 
The court shall consider, but is not limited to considering, the 
following factors in determining whether there has been a lack of 
demonstrated consistent participation: 
(1) 
The intent of the parent or parents in placing the 
child with the de facto guardian; 
Page l-LR0174(1) 
• 
(2) 
The amount of involvement the parent or parents had 
with the child during the parent's or the parents' absence; 
(3) 
The facts and circumstances of the parent's or parents' 
absence; 
(4) 
The parent's or parents' refusal to comply with the 
conditions for retaining custody set forth in any previous 
court orders; and 
(5) 
Whether the parent or parents seeking custody were 
previously prevented from doing so as a result of domestic 
violence or child abuse or neglect . 
§5-252. 
Appointment as guardian 
(a) 
A de facto guardian seeking appointment as the guardian 
of one or more children in a de facto guardianship proceeding 
commences a proceeding by filing a petition with the court. 
A 
petition for guardianship filed under this section must state and 
allege: 
(1) 
The name and address of the petitioner and any prior or 
other name used by the petitioner; 
(2) 
The name and, if known, the address and social security 
number of the respondent mother and father or guardian and 
any prior or other name used by the respondent that is known 
to the petitioner; 
(3) 
The 
name 
and date of birth of each child of whom 
guardianship is sought; 
(4) 
The relationship of the petitioner to each child of 
whom guardianShip is sought; 
(5) 
The petitioner's basis for standing under this section; 
(6) 
The current legal and physical custodial status of each 
child of whom guardianship is sought and a list of all prior 
orders of custody, if known to the petitioner; 
(7) 
Whether any party is a member of the Armed Forces of 
the United States; 
(8) 
The length of time each child of whom guardianship is 
sought has resided with the petitioner and has resided in 
this State; 
(9) 
Whether 
a 
separate 
proceeding 
for 
divorce, 
legal 
separation 
or 
parental 
rights 
and 
responsibilities 
is 
pending in a court in this State or elsewhere; 
(10) 
Whether 
parenting 
time 
should 
be 
granted 
to 
the 
respondents; 
(11) 
Any temporary or permanent child support, attorney's 
fees, costs and disbursements sought by the petitioner; 
(12) 
Whether an order of protection under Title 22, chapter 
1071 or a 
similar law of another state that governs any 
party or each child of whom guardianship is sought is in 
effect 
and, 
if 
so, 
the 
district 
court 
or 
similar 
jurisdiction in which it was entered; and 
(13) 
That it is in the best interests of each child of whom 
guardianship 
is 
sought 
under 
section 
5-253 
that 
the 
petitioner be appointed guardian of the child. 
(b) 
The court shall provide written notice of a hearing on 
a petition to appoint a de facto guardian as the guardian of a 
child to: 
(1) 
A person if: 
(1) 
The person's name appears on the child's birth 
certificate as a parent; 
(ii) 
The person has substantially supported the child; 
(iii) 
The person either was married to the person 
designated 
on 
the birth certificate as 
the natural 
mother within the 325 days before the child's birth or 
married that 
person within 
the 
days 
after 
the 
child's birth; 
(iv) 
The person is openly living with the child or the 
person designated 
on 
the 
birth certificate 
as 
the 
natural mother of the child, or both; 
(v) 
The person has been adjudicated the child's parent; 
(vi) 
The person has filed a paternity action within 30 
days after the child's birth and the action is still 
pending; or 
(vii) 
The person and the mother of the child signed an 
acknowledgment 
of paternity or other recognition of 
parentage that has not been revoked or vacated; and 
• 
(2) 
The guardian or legal custodian, if any, of the child. 
Notice under this subsection need not be given to a person listed 
in this subsection whose parental rights have been terminated. 
(c) 
Written notice of a hearing on a petition to appoint a 
de facto guardian as guardian of a child must be given to the 
Department 
of 
Health 
and 
Human 
Services 
if either 
parent 
receives 
public 
assistance, 
the 
petitioner 
receives 
public 
assistance on behalf of the child or either parent receives child 
support enforcement services or applies for public assistance or 
child support enforcement services after a petition under this 
section is filed. 
Notice to the department must include a copy 
of the petition. 
(d) 
Appointment of a guardian under this section without a 
hearing is permitted if both parents consent by stipulation or 
agreement that it is in the best interests of the child for the 
de facto guardian to be appointed the guardian of the child. 
If 
either parent receives public assistance, the petitioner receives 
public 
assistance 
on 
behalf 
of 
the 
child or 
either parent 
receives child support enforcement services, the petitioner must 
notify 
the 
Department 
of 
Health 
and 
Human 
Services 
of 
the 
stipulation or agreement under this subsection. 
(e) 
To 
establish that 
the 
petitioner 
is 
a 
de 
facto 
guardian, the petitioner must: 
ill 
Show 
by 
clear 
and 
convincing 
evidence 
that 
the 
petitioner satisfies the definition of de facto guardian in 
section 5-251; and 
(2) 
Prove by a preponderance of the evidence that it is in 
the best interests of the child that the de facto guardian 
be appointed the guardian of the child. 
(f) 
The court shall appoint the de facto guardian as the 
guardian of the child if the court determines the appointment is 
in the best interests of the child, 
consistent with section 
5-253. 
To the extent not inconsistent with this Part, Part 2 
applies to the appointment and powers of and other proceedings 
concerning the de facto guardian as the child's guardian. 
(g) 
The court may order any responsible person to pay child 
support in accordance with the child support guidelines under 
Title 19-A, chapter 63. 
(h) 
In a contested action, the court may appoint counseL 
if requested, 
for any indigent de facto guardian not already 
represented. 
§5-253. 
Best interests Qf child 
For the purposes of this Part. the best interests of the 
child are determined according to this section. 
(a) 
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 caretaker; 
(4) 
The intimacy of the relationship between each party and 
the child; 
(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 interests; 
(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 desirability of maintaining 
continuity; 
(8) 
The permanence, as a family unit. of the existing or 
proposed home; 
(9) 
The 
mental 
and physical health of all individuals 
involved; 
(10) 
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; 
(11) 
The child's cultural baCkground; and 
( 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. 
(b) 
The court may not con~er anyone of the factors set 
out in subsection (a) to the exclusion of all others. 
The court 
shall make detailed findings on each of the factors and explain 
how the factors led to its conclusions and to the determination 
of the best interests of the child. 
(c) 
The court may not give preference to a party oyer the 
de facto guardian solely because the party is a parent of the 
child. 
(d) 
The court may not prefer a parent over the de facto 
guardian solely on the basis of the gender of the parent or de 
facto guardian. 
(e) 
The fact that the parents of the child are not or were 
never married to each other may not be determinative of the 
custody of the child. 
(f) 
The 
court 
may 
not 
consider conduct of 
a 
proposed 
guardian that does not affect the guardian's relationship to the 
child. 
§5-254. 
Termination 
(a) 
If 
a 
parent 
seeks 
termination 
of 
a 
guardianship 
appointed under this Part, the court shall establish a schedule 
of review hearings for the court to review parental efforts to 
demonstrate a capacity to fulfill the duties described in section 
5-251, subsection (b) so that it is in the child's best interests 
to terminate the guardianship. 
(b) 
The parent must prove bY--tbe preponderance of the 
evidence that the parent has made appropriate changes described 
in subsection (a) so that termination of the guardianship is in 
the best interests of the child. 
(c) 
If there has not been adequate change described in 
subsection (a) within the first 2 years of the guardianship, 
there is a 
presumption that the guardianship should continue 
until the child is 18 years of age. 
The parent may rebut the 
presumption by clear and convincing evidence. 
SUMMARY 
This bill gives standing to "de facto guardians" to seek 
appointment as guardians of minor children, with or without the 
consent of the parents. 
The Probate Court will consider factors 
that establish the person as 
a 
de facto guardian, 
including 
actual 
custody 
and 
parenting 
of 
the 
child 
without 
legal 
formalities, and consider whether the appointment is in the best 
interests of the child. 
This bill is modeled on Minnesota de 
facto custodian law. 
,