Custody & Primary Residence | Lipman & Katz

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Custody & Primary Residence

If you’re considering or are in the process of dissolving a marriage or partnership and have children, their wellbeing is probably the most important thing on your mind. The Court takes this very seriously, also, and is responsible for appropriately awarding parental rights and responsibilities and determining custody if there is disagreement between the parties involved. 

Some of these considerations are described below. If we can answer any questions for you or clarify anything, please call us at 800-660-3713.

Custody & parental rights and responsibilities

Spouses or partners with children who are no longer in a relationship may be unable to agree upon with whom the children should live. When determining custody, the Court must include an award of parental rights and responsibilities which may be allocated, shared or sole parental rights and responsibilities. Often, the parties will agree to share decision making about child-related issues, referred to as “shared parental rights and responsibilities.” Read more about parental rights and responsibilities.

Primary residence

In addition to determining parental rights and responsibilities, the Court must determine primary residence of the child, sometimes referred to as “custody.” In many instances the parties, by agreement or following an order of the Court, will share primary residence. Typically, in this situation, the child or children will spend approximately equal time in each parent’s home. One parent may have more time during the school year, and the other may have more time with the child or children during the summer and school vacations. In other instances, the parties may share weekday and weekend time equally throughout the year. In still other cases, one parent may be awarded primary residence, while the other parent is awarded rights of parent/child contact.

How does the Court determine custody of children?

The Court, in deciding parental rights and responsibilities, and in making decisions regarding the child’s residence and parent/child contact, considers the “best interest of the child.” Title 19-A § 1653-3 lists the factors that are considered, a few of which include:

  • The age of the child
  • The relationship of the child to the child’s parents and any other persons who may significantly affect the child’s welfare
  • The preference of the child, if old enough to express a meaningful preference
  • The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity
  • The stability of any proposed living arrangements for the child
  • The motivation of the parties involved and their capacities to give the child love, affection and guidance
  • The child’s adjustment to the child’s present home, school and community
  • The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access

There are particular considerations for the Court to consider when there has been domestic violence

Maine law also expressly prohibits the Court from implying a preference for one parent over the other in determining parental rights and responsibilities because of a parent’s gender or the child’s age or gender.