Parental Rights Matters in Maine Probate Courts: The Urgent Need for Reform

Professor Deirdre SmithBy Professor Deirdre Smith

Although Maine’s sixteen county-based probate courts are primarily associated with the administration of decedents’ estates, they have an important role with respect to children’s interests as well. Since their establishment in 1821, the probate courts’ jurisdiction has included matters addressing the property and care of a decedent’s surviving children. Over time, these courts have overseen an increasing number of cases involving the care, support, and custody of children who have living parents. Most significantly, during the last thirty-five years, the scope and use of Maine’s minor guardianship laws have expanded substantially, and the Maine Legislature has granted probate courts the jurisdiction to determine paternity and terminate parents’ rights in the context of adoption proceedings. At the same time, pressures on Maine’s child protection system have led to the frequent use of minor guardianships to address concerns about child welfare and an increasing number of adoption and related proceedings.

As a result of this combination of factors, Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since the middle of the 19th century. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as their primary job. These courts have a very limited relationship to the state court system, and they are entirely unconnected with the Maine Judicial Branch’s Family Division. This “split jurisdiction” system, perhaps unique in the country, precludes coordination and consolidation of matters involving the same child in the Family Division of the Maine District Court and a county probate court—a judge in one court system cannot adopt, modify, or terminate an order from the other system. This common scenario leads to confusion, conflicting orders, inefficiencies, and additional stress on a child and family that are already in crisis.

In my recent article, “From Orphans to Families in Crisis: Parental Rights in Maine Probate Courts,” published in the latest edition of the Maine Law Review, I examine the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identify specific reforms to address both the structural and substantive law problems. The Article reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope—a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. I analyze some of the challenges presented by the probate courts’ exclusive jurisdiction of these matters. These include the incidence of conflicts and confusion when the District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation.

In addition to these structural and jurisdictional problems, the Maine Probate Code (MPC) provisions addressing parental rights—specifically guardianship, change of name, and adoption (including related petitions to establish or terminate parental rights)—do not reflect the contemporary use of these laws as private “child protection” remedies; that is, to intervene in a parent-child relationship based on concerns of potential parental abuse, neglect, or other forms of “unfitness.” Rather, the MPC still reflects the “orphan model” of guardianships and adoptions, where there is little need to consider the rights of living parents or broader policy goals of preserving parent-child relationships. For these reasons, the probate courts adjudicating these MPC matters implicating parental rights can fall short of ensuring due process and protecting the fundamental rights of parents.

I conclude the Article by suggesting a number of potential reforms aimed at improving the adjudication of parental rights matters under the MPC. I advocate, for example, eliminating the “split jurisdiction” of family matters between district and probate courts by expanding the District Court’s jurisdiction over MPC parental rights matters and requiring that court to hear all matters concerning parental rights of a child. In addition, I identify a number of necessary, specific changes to the probate courts’ structure and operations to improve the handling of parental rights matters that remain in those courts and to ensure fairness and due process for all participants. Finally, I outline a number of potential substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them.

Maine’s Probate Courts have been the subject of study and reform efforts for more than 60 years. Most notably, Maine voters amended the Maine Constitution in 1967 to abolish the probate court system, leaving only the implementation for the Legislature. In the decades that followed, the courts were the subject of several published studies, all of which identified problems that persist to this day and have worsened in many respects due to the growing dockets. However, the Maine Legislature has never taken the actions needed to effectuate the voters’ mandate. Maine is falling far short of having an effective family justice system and, as a result, it is failing Maine families. The Maine Legislature cannot continue to sit this one out. It must set in motion a plan to overhaul the current court structure and substantive law to fulfill its obligation to those families.

Fortunately, the Legislature is poised to make two modest but important advances to address the problems described in the Article. First, the Legislature is presently voting on LD 890 “An Act to Ensure a Continuing Home Court for Cases Involving Children.” This bill, about which I blogged last year, would eliminate the problem of split jurisdiction in pending cases in Probate and District Court. The District Court’s jurisdiction would be expanded to include matters involving custody or other parental rights of a child under the MPC, such as guardianships and adoptions. It would further provide that, if there is a case pending before the District Court concerning a child, that court would have exclusive jurisdiction over any case concerning that child brought under the MPC. If enacted, this change would mean, for example, that a child could not be the subject of simultaneous proceedings in Probate and District Courts, such as parental rights and guardianship matters.

In addition, the Legislature recently enacted Chapter 73, a Resolve, which states: “[T]he Family Law Advisory Commission… shall oversee a comprehensive review of the laws and procedures concerning minor guardianship and adoption and other provisions implicating parental rights throughout the [MPC], including, but not limited to, an evaluation of the extent to which such laws, procedures and provisions are consistent with family law policy as set forth elsewhere in the Maine Revised Statutes.”

If it enacts L.D. 890 in addition to Chapter 73, the Maine Legislature will have finally taken initial steps toward addressing the urgent need for reform of our family justice system here in Maine.