May 20, 2018
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Children, families in crisis shouldn’t be caught between courts

George Danby | BDN
George Danby | BDN
By Deirdre Smith, Special to the BDN

Imagine a legal battle involving a child in Maine District Court, in which one parent alleges the other mistreated the child. A guardian ad litem is assigned. A family law magistrate or judge gets to know the child, the members of her family, her needs and unique situation.

While that case is ongoing, a relative files for guardianship of the girl, alleging the girl should live with the relative instead of with either of her parents. In Maine, such petitions are handled by county probate courts. The guardianship case is assigned to a different judge in a different courthouse with different lawyers.

Although both court cases center on the well-being of the same child, the proceedings move forward without coordination. Rulings in one case can contradict rulings in the other, with no clear guidance on which court takes precedence.

This hypothetical case illustrates the very real problem of “split jurisdiction.” Court proceedings often are disconnected — sometimes directly in conflict with one another — when a child is the subject of cases in Maine District Court and in a probate court. Split jurisdiction scenarios are becoming more common. They’re confusing and frustrating for the families involved and the lawyers handling their cases. We must ask the question: What can Maine do to make the legal process and the outcomes better for the children we are trying to help?

The Maine Legislature has the opportunity to fix this problem. LD 890, An Act to Ensure a Continuing Home Court for Cases Involving Children, would make sure court cases involving the same child or children are coordinated and assigned to the District Court. This designation of a “home court” would make a world of difference to children who deserve a clear path to resolution of their legal cases. The Judiciary Committee is scheduled to hear public testimony on the bill on April 16.

The problems inherent with split jurisdiction have become more common over time, as cases involving children have become more complicated and contentious.

Maine District Court, part of our state judicial branch, oversees most kinds of cases involving the custody and care of children through its family division. Families facing transition and crises often find themselves involved in District Court proceedings, such as for divorce, parental rights, protection from abuse and child protection. However, there are certain cases that must proceed only in our county-based probate courts — namely minor guardianship, adoption and name changes.

What does this mean for families? If someone in the family asks for help with a problem that must be addressed in probate court but the child at issue is already involved a case in District Court, then the family must contend with multiple cases and courts. It makes it very difficult to reach resolution of the cases through mediation and settlement, and it causes delay, confusion, protracted litigation and inefficiencies.

The Maine Judicial Branch’s Family Division Task Force recently reviewed the family matters process in Maine. The report issued by the task force in June 2014 was critical of the split jurisdiction approach: “Litigants and attorneys expressed dissatisfaction with the disconnect between the various district courts and the county probate courts. Overall, the perception is that when families are required to appear before two completely separate and disconnected legal venues, the result is confusion and waste of precious resources.”

According to the report, the problems are most acute when there are simultaneous or successive proceedings with conflicting court orders in place, as there is no mechanism for consolidation or even coordination of proceedings. When multiple judges impose conflicting orders, Maine law offers little guidance on which one should be followed.

The bill pending before the Legislature would expand the jurisdiction of the District Court to include matters brought under the Maine Probate Code that implicate parental rights. Once the District Court exercises jurisdiction over custody or other parental rights of a child through a pending case or court order, it would have continuing, exclusive jurisdiction over that child for all additional matters involving parental rights, including guardianships, name changes and adoptions.

Children need consistency, stability and, above all, swift and clear resolution of legal proceedings concerning their custody and care. Ensuring that all cases involving a child are handled in one court will improve our family justice system for the benefit of judges, attorneys, litigants and, most importantly, the children at the center of these difficult cases.

Deirdre Smith is a professor of law and director of the Cumberland Legal Aid Clinic at the University of Maine School of Law.

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