FOR IMMEDIATE RELEASE

November 4, 2003

Court Affirms Couples’ Right to Petition for Full Coguardianship Rights

Maine High Court Affirms Lesbian Couples' Right to Petition for Full Coguardianship Rights

Maine’s highest court (the Law Court) today affirmed that the Probate Courts have the power to grant full coguardianships to an existing parent and another person, thus enabling gay and lesbian parents to create a legal relationship between their children and the children’s parents.

“This is a sensible ruling recognizing that children of gay and lesbian parents should have access to the same guardianship protections available to other families and on the same terms as other families,” said Mary L. Bonauto, an attorney with Gay & Lesbian Advocates & Defenders (GLAD) who, along with Judith Berry of Gorham, represented the couple at trial and on appeal.

The case involved a committed lesbian couple from Kennebec County who jointly decided to have children together. These women took all legal steps available to them to protect their familial relationship with each other and with their son, executing parenting agreements, wills, and other documents to allow each other to make medical and financial decisions for themselves and their son. They also petitioned the Probate Court in Kennebec County for a full coguardianship of their son so that either could legally act on his behalf.

The Probate Court Judge reported the case to the Maine Law Court and asked whether two persons may be coguardians of a child if one is the natural parent and the other is not. Recent practice across the state had been to provide only “limited” coguardianships in situations like the one in this case, likely reflecting confusion about the legal authority to grant full coguardianships. As a practical matter, the “limited” guardianships caused confusion for families and others about the powers of the “limited” guardian.

Although the Court stated it was not answering the reported question because the Probate Court had not made a finding on the child’s best interests, it went on to essentially answer the legal question. The Court clarified that the law explicitly provides for coguardianships, including when one of the coguardians is the “natural” parent. As in other cases involving children, the Court emphasized that the Probate Court must make coguardianship decisions based on the child’s best interests.

Added Bonauto, “This should end any question about the authority to extend full coguardianships to gay and lesbian parents. The real issue is what is in the child’s interests, it is certainly in a child’s interests to have two people able to care for and act on behalf of a child.”

Attorney Patricia A. Peard of Portland, who joined the legal team on appeal to the Law Court, added, “The bottom line is that this little boy now has a way for the law to secure what he already knows to be true—that he has two mothers to love and care for him.”

The petitioners in this case, who have chosen to remain anonymous for the sake of their son’s privacy, added, “We simply want to provide a stable family environment for our son and to make sure others see us as equals in matters concerning his interests – whether for medical care, school or emergencies.”

Patricia A. Peard, a former GLAD Board Member and regular cooperating attorney, practices at Bernstein, Shur, Sawyer & Nelson in Portland. Judith M. Berry is a sole practitioner in Gorham with an extensive Probate Court practice.

Celebrating its 25th anniversary year, Gay & Lesbian Advocates & Defenders (GLAD) is New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression.

Guardianship of I.H.
Law Court No. 2003 ME 130
November 4, 2003