legal guardian

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The Probate Court can appoint a legal guardian for minor children when it is appropriate. Each county in Maine has a Probate Court. Find a listing here.

Step 1: Get the required court forms and fill them out
You will need to get and complete several forms. Go to the Probate Court office in the county where the child lives. Explain to the clerk that you want to petition for guardianship of a minor child. She will give you the appropriate forms.

The courts charge for the forms, as well as for filing them. If you have a very low income and cannot afford this fee, you can ask the court clerk for a fee waiver application.

Different Probate Courts may require different forms. But you can get at least some of the forms you will need online here. (Find probate forms on page 2 of "all forms" pages. Or just keep reading to find form links below). If you use these forms, you will have to pay for them when you file them with the court. Pay close attention to the paper and ink requirements (link is external). The court will accept only forms that comply with those rules.

Here are the basic forms that all courts use:

The key form is the Petition for Appointment of Guardian of Minor. The person filing the Petition is the Petitioner. You can propose yourself as the new guardian or another person whom you think is qualified. Make sure that the person you nominate (the nominee) is willing and able to take on the responsibilities.
The second required form is the Child Custody Affidavit. On this form, you tell the court about where the child has been living for the past five years and what other parties may have a legal interest in your petition.
If you are claiming that the child is living in an "intolerable living situation," you must also file a sworn affidavit describing the specific facts. This form is called Affidavit of Petitioner for Appointment of Guardian of Minor Alleging Intolerable Living Situation.
Some courts will also require you to file an Acceptance of Guardianship form with your Petition.
If the child is, will be, or has been, receiving public assistance benefits (TANF or MaineCare), you will also be required to file a Statement Concerning Public Assistance form. Most courts require everyone to file this form. DHHS must be notified and may take part in the case, to see that child support issues are addressed.
Note: Go here for information about seeking a "temporary guardianship" vs. a "permanent guardianhsip."

Step 2. File the forms
You can file the completed forms either by mailing them to the appropriate Probate Court or hand delivering them. Keep a copy for yourself. Make a second copy if you will be doing your own "notice." (see next step)

Step 3. Notify the other parties
You must notify these people that you are petitioning for guardianship:

the minor child if he or she is 14 years or older and has not yet consented,
the parents of the minor child,
the person who has cared for the child for the 60 days prior to filing, and
any other person as directed by the Judge of Probate.
Getting "notice" means that these parties must get copies of the court papers.

This notice can be done by sheriff's service or by certified mail restricted delivery. In either case, this will provide you with proof that the parties got this notice. Because the mail process can be complicated, some courts will do the service for you, charging you for the cost.

Service by Certified Mail
Take copies of the forms you are filing with the court to the post office. You will need one set of copies for each person that you need to notify. Tell the postal clerk that you need to send the papers by certified mail. Make sure you ask for a "Return Receipt" and "Restricted Delivery." This costs more and involves a few extra steps. Get forms and help from your post office. File with the probate court clerk the green cards you get back from the post office, to prove that your forms were delivered.

Service by Sheriff
Mail or take the original and copies of your forms to the sheriff's office (one set of copies for each person to be served). In a letter, or in person, ask the sheriff’s office to serve the papers on the other parties. Give their home addresses. If you think that a party will be hard to find at home, give a work address or place where that person is likely to be. The deputy who "serves" the papers will complete the "proof of service" information and return the original to you. The Sheriff charges for this service (about $15-$30 per service).

Any party is allowed to "waive" notice if he wants to. Most courts will not accept a simple signature but will require that the signature on a statement of waiver be notarized. If any parties in your case want to sign waivers, check with your Probate Court to find out what forms they require.

In rare cases, where you cannot locate the parents, the court may allow "service by publication." This means publishing notice in a newspaper. The Probate Court must approve this method of notice, if all other methods fail.

Step 4. Probate Court hearing
What happens next will depend on whether the parties are in agreement or whether the matter will be contested. No one is required to reach an agreement. At the same time, an agreement can save everyone from a potentially long, expensive, and emotionally difficult court hearing.

By Agreement
If the parties agree, the process usually goes more quickly, with the court hearing being less formal. The Probate Court Judge still must approve the guardianship. She will look to see if the documents are in order and decide whether the guardianship appears to be in the best interests of the child. In most uncontested cases, the judge will approve the proposed guardianship. However, the judge always has the final say, even if the parties have agreed.

Contested Case
If the matter will be contested, it will take longer. The Probate Court Judge will hold a hearing, or a series of hearings. We strongly recommend that you get the help of a qualified lawyer who has experience with handling this type of case. If you have a low-income and cannot afford a lawyer, and you want guardianship of a child who already lives with you, you may be able to get a free or low-cost lawyer. Contact the Maine Volunteer Lawyer's Project (link is external) for more information. Also, the probate court can assign a free lawyer to represent you in limited situations; ask the court clerk about this. However, be aware that you do not have the absolute right to a free lawyer, even if you can't afford one. These are only some resources that may be able to help.

The child's parents (or present guardians), on the other hand, do have the right to a free lawyer to represent them if they cannot afford one. The court will appoint them a lawyer if they apply to the court and the court agrees that they cannot afford to hire a lawyer.

Guardian ad litem
In some contested cases, the court may appoint a guardian ad litum (GAL) for the child. A GAL may be a lawyer or psychologist or some other professional trained in children's needs. The GAL will interview all of the parties and the child. The GAL can gain access to the medical records, school records, and other documents which are relevant to the guardianship. The GAL may investigate you, including your criminal history, medical history, and involvement with DHHS. The GAL will then make a recommendation to the court as to whether a legal guardianship is appropriate and whether your guardianship petition should be granted. The GAL's recommendation is just one piece of evidence which the court will consider.

The court hearing: burden of proof
At the hearing, you carry the burden of convincing the Judge that he should appoint you as the child's guardian. It is not enough to believe that you would provide a better life for the child. The parents' Constitutional rights are at stake; the law and the court set a high bar. You must prove:

that the parents (or legal guardians) are unwilling or unable to care for the child, and
that living with you is "the best interests of the child."
Step 5. Court approves or denies guardianship
After hearing and considering all the evidence, the judge will decide whether to appoint a guardian. If appointed, the new guardian must file an Acceptance of Guardianship, if you have not already done so. If necessary, the Court will appoint a temporary guardian and/or a guardian ad litem until the new legal guardian is assigned and has accepted the responsibilities of guardianship.

Advocate Siddhant Sharma LawRato