PURPOSE
In some instances, when a request for preliminary protection order has been made, and the court has determined that the child is in "immediate risk of serious harm," the custodial parents may agreed that their own circumstances are such that they cannot care for and protect their child in the immediate future, and may wish to waive hearing on the Preliminary Protection Order by consenting to the Order.
LEGAL BASE
| 1. | Title 22 MRSA §4034(1), permits the petitioner to request a preliminary protection order. |
| 2. | Subsection 2 requires that the court must make a finding by a preponderance of the evidence presented in the sworn summary or otherwise that there is an "immediate risk of serious harm to the child," before the court can make a preliminary protection order. |
| 3. | Subsection 3 permits the custodian to consent to the order in writing before a judge, in which case the hearing may be waived. |
| 4. | Subsection 4 requires a hearing within 10 days of the issuance of the order or the request for hearing by a non-custodial parent (who has not consented), unless all parties agree to a later date. |
PRACTICE STANDARDS
| 1. | Upon receipt of the request for a preliminary protection order, the judge will determine whether there is a risk of serious harm to the child based on the evidence presented in the sworn summary (see Sworn Summary of Facts and Affidavit, subsection III) or otherwise (e.g., affidavit(s), additional comments by the petitioner, parents, or other person before the court). |
| 2. | If the court finds there is an immediate risk of serious harm, the court will issue a preliminary protection order. |
| 3. | The custodial parent(s) or other custodians may: |
| b. | Waive hearing on the preliminary order |
| 4. | The consent must be executed in writing knowingly and willingly; consent must be given before the judge. |
| 5. | If the judge does not accept the consent, a hearing on the preliminary order will be set within 10 days of the order. |
| 6. | Consent of one custodial parent is not sufficient to waive the hearing if the other parent or another person also has legal custody and either objects or is unavailable. |
| 7. | The worker musts make parents aware of the implication of signing the consent explaining: |
| a. | Parents have a right to counsel, and if legally indigent, may request a court appointed lawyer. |
| b. | In consenting, parents are, in effect, acceding to the preliminary order, until the full hearing. |
| c. | It is possible that at the full hearing the Department may be awarded full custody, and would then have the legal responsibility for the care and development of the child. |
| d. | The consent must be made in writing before the judge who will: |
| (1) | Determine whether the consent is knowingly and voluntarily given, and |
| (2) | Likely question them about the circumstances and their ability to care for and protect the child from immediate risk of serious harm. |
| e. | The consent itself is not sufficient; the judge must also determine that the child is in immediate risk of serious harm before he can make a preliminary protection order. |
| 8. | When a parent indicates that he is the sole custodial parent: |
| a. | He will be asked about the other parent including: |
| (1) | Other parent’s legal relationship to the child (e.g., if divorced, date and court) |
| (2) | Identity and whereabouts |
| (3) | Relationship with the child (e.g., visitation and support) |
| b. | This information will be verified through at least one other source which must include a reliable relative, an agency, or official records. These sources may also be asked to make statements or affidavits. |
| c. | Attempts will be made to inform a non-custodial parent, or relative caretaker of the intent to file (see Reasonable Steps to Inform Parties of Intent or Action, subsection B; and Sworn Summary of Facts and Affidavit, subsection C) and the custodial parent’s or other custodians intent to consent. |
| 9. | When arrangements are being made with the court to present the petition and request for preliminary order, the court will be informed as to whether the custodians will be present to consent (to allow the court to adjust its schedule, if need by). |
| 10. | If the court makes a preliminary protection order, arrangements will be made by the Department with the court to have the preliminary order form completed by either the Department or the court. |
| 11. | Distribution of request, order, and consent form: |
| a. | Originals retained by the court |
| b. | A copy for each consenting parent and custodian (if made in-hand by the court, this constitutes service) |
| c. | A copy for all parties needing to be served (see service section) |
| d. | Two copies for the Department (see Routing of Legal Documents, subsection V). |
| 12. | If the absent non-custodial parent and/or caretaker relative are located or come forth after a preliminary order is made: |
| a. | Although they have or will be served, they may find the legal documents difficult to understand. Therefore, they will be informed of the contents of the summary of facts supporting the preliminary protection order (see Sworn Summary of Facts and Affidavits, subsection C, especially parents and caretaker relatives), hearing date(s), whereabouts of the child, etc. (unless detrimental to the best interests of the child - see Services to Children in Foster Care, Section V; Family Reunification, Section VII; and Petitioning for Child Protection Order, Section IV, subsection F). |
| b. | If they accede to the preliminary order, they may wish to make affirming statements; they do not have legal standing to waive the hearing by consent. |
| c. | If they object, they will be advised to seek legal counsel. |
| (1) | A non-custodial parent will also be advised to contact the court to request appointed counsel (if it appears he may be indigent) and a hearing on the preliminary order. |
| (2) | Caretaker relatives, although they may be interested parties, do not have legal standing for appointed counsel, nor to request a hearing on the preliminary order, unless the court so determines. |
