Family Law: Shared residence v. Primary residence

By: RKM

Many people come to us with a belief that the quantity of time spent with their children determines whether they, as parents, should share residency of their children or whether one parent should have primary residence of the children. Even worse, many clients have a mistaken belief that the Court favors moms in making its decision. Both of these beliefs could not be further from the truth.

Title 19-A of the Maine Revised Statutes govern the majority of matters related to family matters. Section 1653 of this Title lists nineteen different factors that the court looks to in order to make a decision regarding residency. This section also helps decide what type of parental rights and responsibilities (i.e. decision making abilities) the parents should be awarded. Finally this Section strictly prohibits the court from applying preference to one parent over another based upon one parent’s gender. Bottom line, it comes down to one question: what is in the best interests of your child?

Frequently used factors to determine residency are the age of the child, the relationship of the child with his/her parents, the stability of proposed living arrangements, where the child attends school, and a parent’s ability to give the child love, affection and guidance. There may be many factors that do not apply to your situation; however, the court will use all factors that actually do apply. That is why it is vital to know these factors when determining what would be best for your child or children.

Not only does the court use these factors, they give weight to the applicable factors. In other words, a few factors or even just one factor may be used by the court when making its decision. In a recent Law Court decision, a mother was given primary residence and sole parental rights due to the father’s ongoing substance abuse problems. Miller v. Nery, 2017 ME 2016. Mr. Nery was granted supervised contact with his children without overnights until he completed proper substance abuse treatment. Id. The Law Court affirmed the district court’s decision by saying that it did not misinterpret or misapply 19-A M.R.S. § 1653(3) (2016) in prioritizing the children’s safety and well-being when determining their best interests. Id. This case is just an example of how important these factors are relied upon when determining what is best for children. It also signifies, no matter a parent’s fundamental and constitutional right to parent their children, what is in the best interests of those children is more important than what the parent wants.

Each family is unique, and as noted, there are various factors that need to be evaluated in determining what will happen to your children. Therefore, when going through a family matter with children, it is extremely important to have an experienced lawyer on your side to lead you through these complex issues and onto a better life for you and your children.

Published: 12/07/2018