Rule 71B - Transfer of Proceedings in Matters Involving Guardianship, Adoption, Change of Name or Other Matters Concerning Custody or Other Parental Rights of a Minor Child(a) Notice of Transfer; Transfer Request.(1) If the Probate Court presiding over a guardianship, adoption, change of name, or other matter concerning custody or other parental rights of a minor child becomes aware that proceedings regarding custody or other parental rights concerning the child are pending in the District Court, the Probate Court shall immediately notify the parties and, within the next 7 days, shall conduct a telephone conference with the District Court where the proceedings involving the child are pending, to determine whether the child is under the exclusive, continuing jurisdiction of the District Court pursuant to 4 M.R.S. §152(5-A). If the District Court has such jurisdiction, the courts shall consult so that the District Court may determine the appropriate action to facilitate a transfer of the matter from the Probate Court.(2) Any party involved in a guardianship, adoption, change of name or other matter concerning custody or other parental rights of a minor child, who becomes aware that proceedings regarding custody or other parental rights concerning the child are pending in the District Court, shall immediately notify the Probate Court by filing a request for transfer. The Probate Court shall, within seven days after receipt of the request, conduct a telephone conference with the District Court where the proceedings involving the child are pending, to determine whether the child is under the exclusive, continuing jurisdiction of the District Court pursuant to 4 M.R.S. §152(5-A). If the District Court has such jurisdiction, the courts shall consult so that the District Court may determine the appropriate action to facilitate a transfer of the matter from the Probate Court.(b) Transfer Orders. After consulting with the Probate Court, the District Court shall issue an order that immediately transfers the Probate Court proceeding to the District Court where there is a pending case, unless the District Court determines that immediate transfer would result in undue delay or waste of judicial resources. If the District Court does not order immediate transfer, it shall issue an order that transfers the proceeding from Probate Court to District Court: (1) As soon as a specified event in the Probate Court has occurred;(2) As soon as the Probate Court has issued an order ruling on a matter it has under advisement; or (3) On a date certain. The District Court shall provide copies of the transfer order to all parties and to the Probate Court.
(c) Procedure for Transfer. Within 7 days after the date of transfer specified in the transfer order, the Register of the Probate Court shall file with the District Court that issued the order of transfer the original filings, orders, exhibits, and transcripts, if any, of the proceeding, together with a certified copy of all docket entries for the proceeding being transferred. (d) Effect of Transfer. The transferred action shall be litigated in the District Court as if originally begun there, and the District Court shall have exclusive, continuing jurisdiction of all matters concerning the child(ren) involved in the transferred action, pursuant to 4 M.R.S. §152(5-A). Thereafter, any family matter, guardianship, adoption, name change, or other matter involving custody or other parental rights with respect to that minor child or children must be filed in the District Court. (e) Effect of Previous Orders. Any order of the Probate Court entered before transfer shall remain in force until modified by the District Court. Adopted effective 7/29/2016.Advisory Note - July 2016
This new Rule 71B, mirrors new M.R. Civ. P. 126, which creates the procedures though which the District Courts will handle and process the guardianship, adoption and name change cases that are transferred to them.
Because many filings in the Probate Court are electronic, "original filings" will often mean hard copies created of the electronic filings. Also, when any hearing in a case being transferred has been recorded but not yet transcribed, the Probate Court will send to the District Court the audiotapes or digital recording disk containing the record of the hearing.
Pursuant to 18-A M.R.S. §5 - 205, venue for guardianship cases in the Probate Court is in the county where the minor resides "or is present." Pursuant to 18-A M.R.S. §9 - 104, venue for adoption cases in the Probate Court is determined by a number of factors, including whether the child is being placed for adoption by the Department of Health and Human Services. Section 9-104 (c) permits Probate Courts to transfer cases "in the interests of justice or for the convenience of the parties." Similarly, 4 M.R.S. §155(3) provides that venue for some family cases in the District Court is "in the division where either the plaintiff or the defendant resides," but Section 155(8) allows the District Court to "transfer any case to another division for the convenience of parties or witnesses or in the interest of justice." In order to ensure that the transfer of cases from Probate Court to District Court does, in fact, result in the establishment of a "home court" for families, each case involving a child that is transferred from the Probate Court will be transferred to the District Court where the action involving that child is pending.