Family Law in Maine
Same-sex couples can marry in Maine. Single gay people can adopt in Maine; same-sex couples can jointly become the legal parents of a child.
Questions & Answers (Accurate as of February 25, 2014)
Can same-sex couples marry in Maine?
Yes! On November 6, 2012, Maine became the first state to obtain marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature. Maine Question 1, An Act to Allow Marriage Licenses For Same-Sex Couples and Protect Religious Freedom,50 was approved by the voters of Maine 53 to 47 percent.
- repeals the provision that limits marriage to one man and one woman,
- replaces it with the authorization for marriage between any 2 persons who meet the other marriage requirements of Maine law,
- specifies that a marriage between 2 persons of the same sex in another state that is valid in that state is valid and must be recognized in Maine, and
- provides that a member of the clergy is not required to perform and a religious institution is not required to host a marriage in violation of religious beliefs, and that refusal (1) cannot be the basis for a lawsuit or liability, and (2) will not affect the tax-exempt status of the religious institution.
In 2009, a marriage equality bill, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom, was passed by the legislature and signed into law by former Governor John Baldacci. Opponents initiated a referendum and the law was held in abeyance until a November referedum vote could be taken. The referendum passed 53 to 47 perent, preventing any same-sex couples from marrying in Maine.
On June 30, 2011, Equality Maine and GLAD announced plans to place a voter initiative in support of the right for same-sex couples to marry on Maine's November 2012 ballot. EqualityMaine and Mainers United for Marriage began the campaign for the initiative on May 15, 2012 and the initiative was approved by the voters on November 6, 2012. The law went into effect on December 29, 2012.
The process for getting married in Maine basically requires the following basic steps:
- an eligible couple submits an application for a license in either the town or city in Maine where one of the parties lives (out-of-state couples can go to any town or city clerk);
- the couple must pay the applicable fee and receive a marriage license from the clerk;
- the couple must have the marriage solemnized anywhere in Maine (i.e., have a ceremony) within 90 days of filing the application. In addition to the officiant, the ceremony requires 2 witnesses;
- once the ceremony has been performed, the person who performed it has 7 days to send the license back to the city or town where it was issued; and
- the clerk will then file the original and the couple can receive an official certificate of their marriage.
Do we have to be a Maine resident?
No. Provided a couple is otherwise eligible to marry, neither member of the couple needs to be a Maine resident. Non-resident couples can go to any town or city in Maine to apply for a marriage license and can then have the marriage solemnized in any town or city in Maine.
Is there anywhere else that we can get married?
Yes, the list of states where same-sex couples can currently marry is found at http://www.freedomtomarry.org/states/. There is information about getting married in Massachusetts, Vermont, Connecticut, New Hampshire, Rhode Island and Canada (same-sex couples can marry in Canada and there is no residency requirement) on GLAD's website at: www.glad.org/rights/publications/c/marriage/.
For information about getting married in states outside New England, contact Lambda Legal at www.lambdalegal.org.
Some people may be able to wed outside the United States, but some of these locales have residency and other requirements that make it difficult for non-citizens to marry.
How will the marriage of a same-sex couple be respected?
Maine will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a Maine marriage will be respected as a marriage anywhere that same-sex couples can marry. For the most up to date list go to: http://www.freedomtomarry.org/states/.
The 1996 federal law, the Defense of Marriage Act (DOMA), which prevented same-sex married couples from accessing the 1,138 federal laws that pertain to marriage, was finally ruled unconstitutional by the United States Supreme Court on June 26, 2013. This case, Windsor v. United States, was filed by the American Civil Liberties Union. GLAD filed the first challenge to DOMA in 2009, Gill v. OPM, and the legal framework developed in that case was used in subsequent cases, including the Windsor case. GLAD was also responsible for coordinating the amici briefs in that case.
This means that same-sex married couples living in places that recognize their marriages will have their marriages respected by the federal government for all purposes, e.g. taxes, Social Security (including SSDI and SSI), immigration, bankruptcy, FMLA, federal student financial aid, Medicaid, Medicare, veteran’s benefits, TANF and many more.
For same-sex married couples who live in non-recognition states, even though their state will not recognize their marriage, the federal government will for some purposes (e.g. taxes and immigration) and not for others. GLAD and other legal organizations are advocating that the federal government respect the marriages of same-sex couples for all federal programs wherever they reside, but it will take some time to achieve this goal. For more detailed information about other consequences of marrying outside the country, particularly with regard to potential differences in the treatment and respect of such marriages within the United States. various federal programs and whether the program will recognize the marriages of same-sex couples who live in non-recognition states, go to: www.glad.org/doma.
Also, while DOMA was in effect, if an employer granted a spousal benefit to an employee (e.g. allowing the spouse of the employee to be on the company health plan), the employee was taxed on that benefit. Now that DOMA is gone, that is no longer the case. And since the IRS respects the marriages of same-sex couples wherever they live, this applies to all married same-sex couples regardless of where they reside.
Unfortunately, one issue that was not resolved by taking down DOMA was whether an employer can be legally required to provide health insurance to a same-sex spouse. If the company has a self-insured health plan, that plan is controlled by a federal agency called ERISA, and because the federal anti-discrimination employment law, Tile VII, does not explicitly prohibit discrimination based on “sexual orientation,” some employers are claiming that they are not legally required to provide this benefit to same-sex spouses.
Also, if the health plan is insured and the owner of the plan is situated in a state that doesn’t recognize the marriages of same-sex couples, some employers are choosing to discriminate against same-sex spouses.
However, for both self-insured and insured health plans, nothing prevents the employer from offering coverage to same-sex spouses. If your employer is discriminating against same-sex spouses, contact GLAD Answers.
For more detailed information about the process for getting married in Maine, whether you should enter a Maine marriage, and what it all means, read GLAD’s publication, Marriage In Maine, at: http://www.glad.org/uploads/docs/publications/me-marriage.pdf.
Can same-sex couples obtain any other legal recognition of their relationships in Maine?
Yes, in 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” 51 This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” 52 The specific requirements for registration are set out below.
What protections do I obtain by registering as a domestic partner under the state law?
- Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).
- Legal Priority: The law provides that a domestic partner:
- will be treated like a spouse when seeking to be a guardian of his or her partner in the event of that partner’s incapacity;
- will have the same priority as legal spouses in seeking a protective order concerning the partner’s estate or the welfare of the partner;
- is entitled to notice of hearings concerning the appointment of guardians in the event of the partner’s incapacity; and
- is entitled to notice of the issuance of protective orders in the event of death.
- Survivorship Rights: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)
Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.
Who can register?
Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,”53 and they meet the following specific requirements:
- each partner is a mentally competent adult and not closely related (e.g. close relatives);
- the domestic partners have been living together in the state for at least 12 months before the filing;
- neither domestic partner is married or in a registered domestic partnership with another person; AND
- each domestic partner is the sole domestic partner of the other and expects to remain so.54
How do you register in a registered domestic partnership?
All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee of $35. Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records website.
Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence.55
How do you end a registered domestic partnership?
A registered domestic partnership is ended by:
- the marriage of either registered partner;
- the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
- the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given.56 (Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.)
What exists beyond the Statewide registry?
- State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner.”57
- Maine’s Family Medical Leave Law was amended in June 200758 to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services.59
- In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Worker’s Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances.60
- Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot.61
To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:
- each partner is a mentally competent adult (not required for requesting an absentee ballot);
- the domestic partners have been legally living together for at least 12 months;
- neither domestic partner is legally married to or legally separated from another person;
- each domestic partner is the sole domestic partner of the other and expects to remain so;
- the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property.62
Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).
Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees’ partners?
Yes. State employees can receive health insurance for their domestic partners.
- The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
- Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.
Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?
Yes. Many lawyers also believe this result is required by the non-discrimination law if the city or town provides benefits to heterosexual couples.
It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (sexual orientation is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends.63
Some employers provided these benefits before the non-discrimination law was amended to include sexual orientation. For example, the City of Portland extends domestic partner benefits, including health insurance, to qualified domestic partners of City and School Department employees. In order to qualify for such benefits, an employee must have his or her partnership registered by the City and must provide the City or School Department with two or more forms of proof exhibiting that they are jointly responsible for each other’s common welfare and share financial obligations. Examples of such proof include the joint mortgage or ownership of property; the designation as a beneficiary in the employee’s will, retirement contract or life insurance; a notarized partnership agreement or relationship contract; and any two of the following: a joint checking account, a joint credit account, a joint lease, or the joint ownership of a motor vehicle.64
Note that municipal domestic partner plans have withstood a court challenge. In 2004, GLAD, together with the Portland City Attorney and cooperating counsel, successfully represented the City of Portland in a challenge to the domestic partnership registry system and benefits offered there. The claim was that the domestic partnership law was superceded by the state anti-gay, anti-marriage law. See Pulsifer v. City of Portland, and GLAD’s press release Maine Trial Court Upholds Portland’s Domestic Partnership Ordinance.
In addition, the cities of Bar Harbor and Camden and the County of Cumberland provide domestic partner health insurance benefits to their employees. Portland also maintains a domestic partner registry which allows people to register their relationships and receive family memberships and rights in city-run facilities.
What kinds of domestic partner benefits may private employers provide?
Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. While it’s hard to identify all employers providing benefits in Maine, they include L.L. Bean, Care Development of Maine, Fairchild Semiconductor, Idexx Laboratories, Inc., Energy East Corp., The Gale Group, Hannaford, Maine Coast Memorial Hospital, Maine Medical Center, TD Banknorth Group, the University of Maine System, the University of New England, and Bowdoin, Bates, and Colby Colleges.65
Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of his or her partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. 66 Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.
As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.67
However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on his or her partner’s designation of another person for survivor benefits.
What steps can a couple take to safeguard their legal relationship in Maine?
- Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.68
- Durable Power of Attorney:69 Any competent person may appoint another person as his or her “attorney-in-fact” for financial and/or other matters in the event he or she becomes incapacitated or disabled.70 If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A person may also nominate his or her guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.”71 The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.
- Durable Power of Attorney for Health Care:72 Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than his or her legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence.73 It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while he or she is still competent. Otherwise it must be revoked in court.74 While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person he or she wants to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” 75 can make health care decisions for an incapacitated person. This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her incapacitated partner’s health care decisions absent documentation. Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments.76 The Attorney General’s Office has a model advance directive posted on their website, http://www.themha.org/issues/advdirectivesform.pdf. While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members.77 Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse.” 78 This provision might be cumbersome to enforce, but provides a way for a partner to be involved in his or her partner’s end of life decision.
- Will: Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
- Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.79 If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.80 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.
If a couple separates, what is the legal status of a Relationship/Partnership Agreement/Contract?
Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.
Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.81
PLEASE NOTE: If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.
Can a single gay individual adopt a child in Maine?
Can same-sex partners together adopt a child in Maine?
Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple.83 In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD’s publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption.
What is the advantage of doing a second parent or joint adoption?
An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.
Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.
With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent’s work record.
Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.
Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?
There are a number of steps that can be taken, although none offer the security of a second parent adoption or marriage. Among these are:
- Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be enforceable as a contract, they are important indicators of what the couple’s intent was when they formed their family and what they believed was in the best interests of the child, and thus may be influential on a court’s assessment of who the parents are and their respective parental rights and responsibilities.
- Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These “testamentary appointments” are given strong and respectful consideration by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.84
- Co-guardianship: This process allows a biological or adoptive parent to name his or her partner as a co-guardian so that the partner may secure medical attention and health insurance for the child and in most other ways act with the legal authority of a parent. The Probate Court may appoint the legal parent and his or her partner as co-guardians if the legal parent consents to the appointment and the court finds the appointment to be in the best interests of the child.85 This status is not permanent, and may be terminated by the court upon a legal petition if the guardianship is no longer in the best interests of the child. Additionally, co-guardianship status ceases to be recognized once the child reaches the age of eighteen.86
- Power of Attorney Delegating Parent’s Rights: This document is signed by the parent and delegates to another adult all powers regarding that parent’s child, except the power to consent to the child’s adoption. It must be notarized, and it must be renewed every six months.
If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?
This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a “de facto parent,” then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation.87 Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:
- the de facto parent must have developed a parent-child relationship with the child;
- the legal parent must have consented to and encouraged the development of this relationship;
- the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent.88
The Law Court added that a de facto parent “must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life.”89 This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together. For additional legal information about other states, see GLAD’s Selected Bibliography of Recent Co-Parent Cases.
Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families: Standards for Child Custody in Same-Sex Relationships.
What standards should same-sex couple with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBT parents;
- Honor existing relationships regardless of legal labels;
- Honor the children’s existing parental relationships after the break-up;
- Maintain continuity for the children;
- Seek a voluntary resolution;
- Remember that breaking up is hard to do;
- Investigate allegations of abuse;
- The absence of agreements or legal relationships should not determine outcome;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments.
For more detailed information about these standard see the publication Protecting Families: Standards for LGBT Families at: http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf.
I am in the middle of a divorce and I am now involved with a same-sex partner. Can my “ex” use this against me to deny me parental rights and responsibilities for my children?
The Maine Law Court has not yet addressed a case like this, but the majority rule in the country is “No.” Most states, and two Maine Superior Court cases, use the “nexus test” under which a parent’s sexual orientation is not relevant unless there is actual evidence of harm to the child. Speculation of harm or teasing is not enough.
In Whitehead v. Black90, a case decided by the Superior Court, an ex-husband from Georgia petitioned for a change of custody when he learned that his ex-wife, who had since moved to Maine, was a lesbian. The court ruled that the children had always lived with the mother, that she was otherwise fit, and she “was aware that her homosexual lifestyle could have an impact on her children and was intelligently seeking to minimize, if not totally eliminate, that impact.” 91 That reasoning from a court is good for its time.
Finally, many reputable attorneys have refused even to make the argument that a parent’s sexual orientation — standing alone — should be a factor in child welfare decisions. For more legal information, see GLAD’s Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse.
What are the factors for making parental rights and responsibilities determinations generally?
Courts consider the parents as equals, whether married or unmarried, and make orders based on the best interests of the children.
The permissible factors for consideration are set out by law. The factors focus on child welfare and none automatically advantages a non-gay parent over a gay parent.
The law provides: “In making decisions regarding the child’s residence and parent-child contact, the court shall consider as primary the safety and well-being of the child. In applying this standard, the court shall consider the following factors:
- The age of the child;
- The relationship of the child with the child’s parents and any other person 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;
- The capacity of each parent to cooperate or to learn to cooperate in childcare;
- Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
- The effect on the child if one parent has sole authority over the child’s upbringing;
- The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects: 1. The child emotionally; and 2. The safety of the child;
- The existence of any history of child abuse by a parent;
- All other factors having a reasonable bearing on the physical and psychological well-being of the child; and
- A parent’s willful misuse of the protection from abuse process…”92
Are there different kinds of parental rights and responsibilities?
Yes, and the courts may allocate some particular rights to one parent and others to another parent.93 The rights that may be divided include primary physical residence, visitation, support, education, medical and dental care, religious upbringing or any other matter. Sometimes a parent will be solely responsible for the child in all aspects; this is called “sole parental rights and responsibilities.” Other times, the parents will share all of these issues; this is called “shared parental rights and responsibilities.”
Is it considered harm to the child if he or she is teased about having a gay or lesbian parent?
It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.
As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, 94 in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”95
Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?
It may, but does not necessarily make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a “substantial change in circumstances.” If a spouse did not know of his or her spouse’s sexual orientation at the time of the initial court proceedings, but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be reviewed. There are many cases from around the country rejecting this as a basis for seeking modification. See GLAD’s Bibliography of Custody and Visitation Cases Involving Divorce From A Different-Sex Spouse. Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.96
Can a court keep my children from visiting when my partner is present?
This issue has not been decided by the Maine Law Court, but a Superior Court case, Stone v. Stone,97 applied the right test. A mother went back to court seeking a restriction on her ex-husband’s “overnight visitors,” as he was now partnered with a man. The Superior Court struck the restriction imposed by a lower court because the father was discreet and there was no evidence of harm to the children.
Moreover, visitation restrictions are inherently suspect. In Lawrence v. Texas98, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were. While courts have the power to do this, visitation should not be restricted unless there is actual evidence that the partner is causing harm to the child. The touchstone for these decisions is the best interests of the child.
What is domestic violence?
Domestic violence may take many forms. Generally, domestic violence is a pattern of coercive behavior in which one person attempts to control another through threats or actual use of tactics, which may include any or all of the following: physical, sexual, verbal and psychological abuse.
Under the law, “abuse” means that any of the following have occurred between people who are “family, household members or dating partners”:
- Attempting to cause or causing bodily injury or offensive physical contact;
- Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior;
- Compelling, by force, threat of force, or intimidation, a person to engage in conduct, such as causing another to engage involuntarily in sexual relations by force, or to abstain from conduct in which they have a right to engage;
- Restricting another person’s movement, by knowingly removing them from home, work or school, or moving them a substantial distance from where they were found, or confining the person;
- Placing a person in reasonable fear that a crime will be committed by threatening them or another person that they will be committing a crime of violence against the person; or
- Repeatedly and without reasonable cause following a person or being in the vicinity of their work, school or home.99
Do the domestic violence laws apply to people in same-sex relationships?
Generally yes. The definition of “family, household members and dating partners” includes married couples, domestic partners or former domestic partners, people who are or have “liv[ed] together as spouses”, people who are sexual partners or are living together (or did so previously), as well as individuals currently or formerly dating each other, whether or not the individuals are or were sexual partners.100 The law applies equally to all people, but the application depends upon the nature of the relationship of the people involved.
How do I get a court order protecting me from an abusive partner?
To get protection, go to the District Court in the community where you live or where the abuser lives. The court clerk will have a packet of information for you to complete. There is no fee, and there is a means of keeping your address confidential from the public. You will have to allege abuse as defined above, and indicate where you think the abuser/defendant can be found so that he or she can be served with (given a copy of) the court papers. If the courts are closed, contact your local police who will locate a judge to help. On this basis, you may receive a temporary order of protection good for up to 21 days. In order for those orders to be enforceable, the police must serve a copy on the defendant/abuser, and a defendant cannot be arrested for violating orders if he or she has not been given a copy of them. The orders can restrain the defendant from coming near you or your children, keep the defendant away from your home, and/or place of employment or contacting you at all, and determine child custody issues on a short-term basis.
Violation of a protection order is a criminal offense.101
The temporary orders will indicate the date set for the court hearing at which you can try to extend your court orders. At this point, the defendant will tell his or her side of the story as well, and you can be called upon to answer questions. At this stage, both parties often have attorneys. If the Court determines the defendant has made a credible threat to the physical safety of you or a child in your household, the relief may be extended for up to two years.
If for some reason you decide not to go through with the order, it is important to show up in court on your assigned date and ask that the case be dismissed.
In addition, Maine’s harassment law described below may be useful for people who are experiencing harassment from a partner of the same sex. An order preventing harassment can be taken out against anyone.102
Where can I go to get help?
In Maine, local domestic violence projects across the state provide direct services to victims of domestic violence. The Maine Coalition to End Domestic Violence (MCEDV) is a coalition of the nine domestic violence projects in the state. There is a statewide domestic violence helpline at 866-834-HELP (4357). This number will direct victims to support centers in their county. These support centers also provide court advocacy. MCEDV maintains information for same-sex partners on their website at http://www.mcedv.org.
In addition to the local police, there are several other hotlines and on-line resources:
- Sexual Assault Support Hotline, (800) 871-7741 (statewide, 24-hours), a complete listing of local member sexual assault centers can be found at http://www.mecasa.org/;
- Office of the Maine Attorney General, 207-626-8800, http://www.maine.gov/ag/.
Does domestic violence play a role in parental rights and responsibilities decisions?
Yes. It is a factor the court must consider in allocating parental rights and responsibilities, and courts may provide conditions upon an abuser seeing his or her children.103
51 LD 1579, 2004 Leg., 121st Leg. (Me. 2004).
52 22 Me. Rev. Stat. sec. 2710(2) (establishing Registry); 18-A M.R.S.A §1-201 (defining “domestic partner” for purposes of Registry).
53 18-A Me. Rev. Stat. sec. 1-201 (10-A).
54 22 Me. Rev. Stat. sec. 2710(2).
55 22 Me. Rev. Stat. sec. 2710(3).
56 22 Me. Rev. Stat. sec. 3710(4).
57 24 Me. Rev. Stat. sec. 2319-A; 24-A Me. Rev. Stat. secs 2832-A & 4249 (2).
58 26 Me. Rev. Stat. sec. 843 (4).
59 “An Act to Assist Maine Military Families” LD 256, 2007 Leg., 123rd Leg. (Me. 2007). See also, 26 Me. Rev. Stat. sec 843 (4).
60 39-A Me. Rev. Stat. sec. 102 (sub-§11) (A) & (B-1).
61 31-A Me. Rev. Stat. sec. 1 (20).
62 26 Me. Rev. Stat sec. 843 (7); 21-A Me. Rev. Stat. sec. 1 (13-A); 24 Me. Rev. Stat. sec. 2319-A (1)
63 24-A Me. Rev. Stat. secs. 2849-B & C.
64 Portland, Me. Code, sec. 13.6-21 (2001). Available at: http://ci.portland.me.us/citycode/chapter013_6.pdf.
65 See The Human Rights Campaign’s Employer Database, available at http://www.hrc.org/issues/workplace/equal_opportunity/search_employers.asp.
66 See e.g., Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996).
67 See Human Rights Campaign, Pension Plans, available at http://www.hrc.org/issues/4821.htm.
68 See Wilcox v. Trautz, 427 Mass. 326 (1998); Doe v. Burkland, 808 A.2d 1090 (R.I. 2002).
69 18-A Me. Rev. Stat. Part 9.
70 18-A Me. Rev. Stat. secs. 5-904, 5-905, 5-909©.
71 18-A Me. Rev. Stat. secs. 5-908(a)
72 Uniform Health-Care Decisions Act, 18-A Me. Rev. Stat. Part 8.
73 18-A Me. Rev. Stat. sec. 5-802(b),(c).
74 18-A Me. Rev. Stat. sec. 5-803.
75 18-A Me. Rev. Stat. sec. 5-805 (b)(1-A).
76 18-A Me. Rev. Stat. sec. 5-802.
77 18-A Me. Rev. Stat. sec. 5-805.
78 18-A Me. Rev.Stat. sec. 5-805 (b)(1-A).
79 22 Me. Rev. Stat. sec. 2843-A.
80 22 Me. Rev. Stat. sec. 2843-A (2)(A).
81 Ackerman v. Hojnowski, 2002 Me. 147, 804 A. 2d 412 (2002).
82 18-A Me. Rev. Stat. sec. 9-301.
83 In re Adoption of M.A.,—- A.2d——, 2007 WL 2446019 (Me. 2007).
84 See 18-A Me. Rev. Stat. sec. 5-301 et seq.
85 See 18-A Me. Rev. Stat. sec. 5-204(b).. GLAD’s case, In re Guardianship of I.H., 834 A.2d 922 (Me. 2003), clarified the law in this area. See also http://www.glad.org/current/pr-detail/maine-high-court-affirms-lesbian-couples-right-to-petition-for-full-coguard/.
86 A Me. Rev. Stat. sec. 5-212(d). In addition, a court can order a “de facto” guardianship even if the parents do not consent where the child has lived with another person and the parents have consistently not participated in the child’s life. 18-A Me. Rev. Stat. sec. 5-101.
87 See C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).
88 See Stitham v. Henderson, 768 A.2d 598, 605-06 (Me. 2001) (Saufley, J., concurring) (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)).
89 See C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).
90 2 BNA Family Law Rptr 2593 (Me. Super. 1976).
91 Id. at 2594.
92 19-A Me. Rev. Stat. sec. 1653(3).
93 19-A Me. Rev. Stat. sec. 1501.
94 466 U.S. 429 (1984).
95 Palmore, 466 U.S. at 432.
96 See generally, 19-A Me. Rev. Stat. sec. 1653 (10).
97 Stone v. Stone, 1980 Me. Super. LEXIS 30 (1980).
98 539 U.S. 558, 574 (2003).
99 19-A Me. Rev. Stat. sec. 4002(1).
100 19-A Me. Rev. Stat. sec 4002
101 See generally 19-A Me. Rev. Stat. sec. 4001 et seq.
102 5 Me. Rev. Stat. sec. 4651. See also http://www.courts.state.me.us/publications_other/pa_ph-1207.pdf.
103 See generally 19-A Me. Rev. Stat. sec. 1653 (6).