Full question:
I have a daughter who has been in some trouble with the law. She has 2 children by different fathers. One she was pressured to give guardianship to the child's grandmother, now she wants the mother (other grandparent) to take custody until she is back and out of trouble, who has the right to get her,no court action taken place yet?
- Category: Divorce
- Subcategory: Grandparents Visitation
- Date:
- State: Maine
Answer:
The answer will depend on the nature of the guardianship, whether there have been child protective actions taken by the state, or parental rights have been terminated. If the daughter gave a power of attorney or verbal permission to the other grandparents to care for the child, without any involvement by the state, it may be revoked. If an action is brought in court to establish a formal guardianship, it will be a subjective matter for the court to decide, based on all the facts and circumstances involved, the guardian who is in the child's best interests.
The following are Maine statutes:
18-A M.R.S.A. § 5-201. Status of guardian of minor; general
A person becomes a guardian of a minor by acceptance of a
testamentary appointment or upon appointment by the court.
The guardianship status continues until terminated, without
regard to the location from time to time of the guardian
and minor ward. This section does not apply to permanency
guardians appointed in District Court child protective
proceedings. If a minor has a permanency guardian, the
court may not appoint another guardian without leave of the
District Court in which the child protective proceeding is
pending.
18-A M.R.S.A. § 5-204. Court appointment of guardian of minor;
conditions for appointment
The court may appoint a guardian or coguardians for an
unmarried minor if:
(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
responsibilities 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;
(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 child; or
(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
30 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.
In a 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),
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 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, the court shall
specify the duties and powers of the guardian, as required
in section 5-105, and the parental rights and
responsibilities retained by the parent of the minor.
18-A M.R.S.A. § 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 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 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.
18-A M.R.S.A. § 5-210. Termination of appointment of guardian;
general
A guardian's authority and responsibility terminates upon the death,
resignation or removal of the guardian or upon the minor's death,
adoption, marriage or attainment of majority, but termination does not
affect his liability for prior acts, nor his obligation to account for
funds and assets of his ward. Resignation of a guardian does not
terminate the guardianship until it has been approved by the court. A
testamentary appointment under an informally probated will terminates if
the will is later denied probate in a formal proceeding.
18-A M.R.S.A. § 5-212. Resignation or removal proceedings
(a) Any person interested in the welfare of a ward, or the
ward, if 14 or more years of age, may petition for removal
of a guardian on the ground that removal would be in the
best interest of the ward. A guardian may petition for
permission to resign. A petition for removal or for
permission to resign may; but need not, include a request
for appointment of a successor guardian.
(b) After notice and hearing on a petition for removal or
for permission to resign, the court may terminate the
guardianship and make any further order that may be
appropriate.
(c) If, at any time in the proceeding, the court determines
that the interests of the ward are, or may be, inadequately
represented, it may appoint an attorney to represent the
minor, giving consideration to the preference of the minor
if the minor is 14 or more years of age.
(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 petitioner has the
burden of showing by a preponderance of the evidence that
termination of the guardianship is in the best interest of
the ward. If the court does not terminate the guardianship,
the court may dismiss subsequent petitions for termination
of the guardianship unless there has been a substantial
change of circumstances.
(e) In a contested action, the court may appoint counsel
for any indigent guardian or petitioner.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
