Know Your Rights: Family Rights in Maine
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Family | Parenting | Maine
What is the Maine Parentage Act?
The Maine Parentage Act (MPA) is a set of state laws that was passed in 2016 and strengthened in 2021. It clarified and expanded the ways someone can legally establish that they are the parents of a child. The MPA addresses who is able to, and how to, establish legal parentage. See: Title 19-A, §1851: Establishment of parentage.
Specifically, the MPA ensures greater protections and equal treatment for children of LGBTQ+ parents. The law allows many LGBTQ+ parents to establish parentage through a simple form, an Acknowledgement of Parentage (AOP), ensuring LGBTQ+ parents are able to establish their legal relationship to their child immediately at birth or any time before the child turns 18.
The MPA also extends an accessible path to parentage for children born through assisted reproduction and for children born through surrogacy.
What does parentage mean?
“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.
Why is it important to establish parentage quickly?
Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.
How can Maine families establish parentage under the MPA?
The MPA provides that Mainers can establish their parentage in the following ways:
- Giving birth (except for people acting as surrogates)
- Acknowledgement (by signing an Acknowledgement of Parentage)
- Presumption (including the marital presumption)
- Genetic connection (except for sperm or egg donors)
- De facto parentage
- Intended parentage through assisted reproduction
- Intended parentage through a gestational carrier agreement
- Adjudication (an order from a court)
Also, the Court may accept an admission of parentage that is made under penalty of perjury, or the Court may assign parentage to a party in default as long as the party was properly served notice of the proceeding (see 19-A MRS §1841 and §1842).
Who is an intended parent?
An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child or is an intended parent under a gestational carrier agreement. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.
Who is a presumed parent?
A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Acknowledgement of Parentage, by an adjudication, or as otherwise provided in the MPA.
You are a presumed parent if any of the below are true:
- You are married to the child’s birth parent when the child is born;
- You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce;
- You attempted to marry the child’s birth parent and the child is born during the invalid marriage or within 300 days of it being terminated by death, annulment or divorce;
- You married the child’s parent after the child was born, asserted parentage and are named as a parent on the birth certificate; or
- You resided in the same household with the child and openly held out the child as your own from the time the child was born or adopted for at least two years and assumed personal, financial or custodial responsibilities for the child.
Who is a de facto parent?
A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence that you have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life. To make that finding a court must determine all of the following:
- You lived with the child for a significant amount of time;
- You consistently took care of the child;
- A bonded and dependent relationship has been established between the child and you, the relationship was fostered or supported by another parent of the child, and you and the other parent have understood, acknowledged or accepted that or behaved as though you are a parent of the child.
- You took full and permanent responsibility for the child without expectation of financial compensation;
- Continuing a relationship with the child is in the best interests of the child.
What is an Acknowledgement of Parentage?
Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgement of Parentage program.
Federal regulations require states to provide an Acknowledgement of Parentage program at hospitals and state birth record agencies. Acknowledgement of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.
By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgement of Parentage has the binding force of a court order and should be treated as valid in all states.
How do I establish my parentage through an Acknowledgement of Parentage?
You can voluntarily acknowledge the parentage of a child by signing a form from the Maine Department of Health and Human Services known as an Acknowledgement of Parentage (AOP). An Acknowledgement of Parentage must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the Acknowledgement of Parentage). The other parent can be the genetic parent (except for sperm or egg donors), an intended parent of a child born through assisted reproduction or a gestational carrier agreement, or a presumed parent (see definition of presumed parent above).
Signing an Acknowledgement of Parentage form is voluntary, and it can be done at the hospital soon after birth or until the child turns 18 by contacting the Maine Department of Health and Human Services. Here is a sample of the form, VS-27-A: Acknowledgement OF PARENTAGE (AOP).
An Acknowledgement of Parentage form must be notarized. To be valid, the people signing the form must be given oral and written notice explaining the legal consequences, rights, and responsibilities that arise from signing an Acknowledgement of Parentage. If either the birth parent or the non-birth parent does not want to sign this form to establish parentage for the non-birth parent, then either of them can try to have a court determine parentage.
If you have any questions about whether to sign an Acknowledgement of Parentage form, you should consult with a lawyer before signing. An Acknowledgement of Parentage is the equivalent of a court judgment of parentage, and parentage is a considerable, life-long responsibility.
When can I not establish parentage through an Acknowledgement of Parentage?
- A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
- Parentage cannot be established through an Acknowledgement of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage.
- A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgement of Parentage until the child is two.
When can a parent sign an Acknowledgement of Parentage?
Acknowledgements of Parentage can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgement of Parentage can also be completed before the child’s birth but will not take effect until the child is born.
How can an Acknowledgement of Parentage be rescinded?
If you aren’t married, and you signed an Acknowledgement Parentage, you have sixty days to go to court and rescind, or take back, that acknowledgement. If it has been more than 60 days since you filed the acknowledgement, but less than two years, you can still go to court to challenge the acknowledgement if:
- You were lied to about being the parent;
- You were forced or coerced into signing the Acknowledgement; or
- You or the other parent were wrong on the facts that made you think you were the parent.
These same rules apply if you believe you are the parent, but someone else has acknowledged that they are the parent of the child.
You can’t challenge an acknowledgement after the child is two years old.
You will need to prove to the court that the person who acknowledged paternity is NOT the parent.
If you believe you are the parent of a child, but you had no way of knowing it when the child was born, you can challenge an acknowledgement of parentage. You have two years from the time you found out you might be the parent to challenge an Acknowledgement. This is the only situation where someone can challenge an Acknowledgement of Parentage that is more than two years old.
What if I am a non-biological parent? How can I establish myself as a legal parent?
The MPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction or a gestational carrier agreement or have a genetic connection (except for sperm or egg donors), you can establish parentage by signing an Acknowledgement of Parentage.
Some non-biological parents can establish parentage through the MPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.
How does the MPA help people conceiving through assisted reproduction?
The MPA provides important clarity and protections for children born through assisted reproduction (i.e., you did not have sexual intercourse or use a gestational carrier to conceive). The MPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the MPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent and can establish that parentage by signing an Acknowledgement of Parentage.
Does Maine require private health plans to provide coverage for fertility care?
Yes, Governor Janet Mills signed LD 1539, An Act to Provide Access to Fertility Care, on May 2, 2022, and the law applies to private health plans which are regulated by the Maine Bureau of Insurance that are issued or renewed on or after January 1, 2023. This includes employers who offer insured health plans. Some employers have self-insured plans, and these are not regulated by the Maine Bureau of Insurance.
The law requires all carriers who offer health plans in Maine to provide coverage for medical interventions including fertility diagnostic care, fertility treatment, and medically necessary fertility preservation.
What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?
A joint adoption is when both partners adopt a child together at the same time. A second-parent or co-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Maine.
What is the advantage of doing a second-parent adoption or joint adoption?
Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second-parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will and may be able to collect Social Security survivor benefits.
Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.
Do we need to do a second-parent adoption if we are married?
When a child is born into a marriage, Maine law and the law of all states presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.
Now Maine couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgement of Parentage.
If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?
No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.
Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.
How does the MPA address surrogacy?
The MPA has comprehensive provisions about how to establish parentage through gestational carrier agreements. Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement that meets all of the requirements of the statute. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties
To enter into a surrogacy agreement, all of the following must be true:
- The surrogate must be at least 21 and have previously given birth to a child.
- All intended parents and the person acting as the surrogate must have completed a medical evaluation and mental health consultation,
- The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s).
The law requires surrogacy agreements to incorporate several terms to be valid, such as allowing a person acting as a surrogate to make their own health and welfare decisions during pregnancy and requiring the intended parent(s) to pay all related healthcare costs.
Can Mainers use genetically related gestational carriers?
Yes. If a carrier is a family member, they can serve as a gestational carrier using their own gametes or genetic material. Someone who is not a family member cannot be a genetic gestational carrier. Otherwise, the same laws, including the need for a valid agreement, apply to genetic and non-genetic carriers.
What if I am not married?
The MPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the MPA aims to treat all Maine families equally.
What if I am transgender or non-binary?
The MPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The MPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the MPA aims to treat all Maine families equally.
Can a child have more than two legal parents?
Yes. Under the MPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.
Where can I go if I need help resolving a parentage issue?
As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by filling out the form at GLAD Answers or call 800.455.4523 (GLAD).
For more information about Maine Parentage Act, see:
Protecting Families: Protecting Families: Standards for LGBTQ+ Families – GLAD.
Parenting a Transgender Child: Parenting a Transgender or Gender-Expansive Child: How to Protect Your Family Against False Allegations of Child Abuse.
Cases & Advocacy
To see Family cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”
News & Press Releases
To see news and press releases about Family in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”
Family | Relationships | Maine
What role did GLAD play in the fight for marriage equality?
GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections and responsibilities of marriage but called them civil unions or registered domestic partnerships.
GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health.
This was followed by:
- Maine approved domestic partnerships in 2004, which provided some of the protections of marriage;
- civil unions in Connecticut in 2005;
- GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008;
- civil unions in New Hampshire in 2008;
- Vermont provides marriage for same-sex couples in 2009;
- Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009;
- marriage in New Hampshire in 2010;
- Connecticut converts all its civil unions into marriage in 2010;
- conversion of New Hampshire civil unions to marriage in 2011;
- civil unions in Rhode Island in 2011;
- marriage in Maine in 2012;
- marriage in Rhode Island in 2013;
- civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage.
At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996, which was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry that those marriages would not be recognized by the federal government. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.
Finally, in Obergefell v. Hodges, on June 26, 2015, the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs at oral arguments. Post Obergefell, all 50 states are required to issue marriage licenses to same-sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.
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, was approved by the voters of Maine 53 to 47 percent.
For information about how to get married in Maine, see: Maine.gov: Residents: Getting Married in Maine.
Will other states and the federal government respect my marriage?
Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.
Can I obtain Social Security survivor benefits if my spouse dies?
Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.
However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.
To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security).
These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.
The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal.
What happens if we need to end our marriage?
After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Maine applies its divorce statutes to same-sex couples.
When you are getting divorced, the Court has the power to fairly divide up the property from the marriage. “Marital property” is property (land, homes, cars, appliances, etc.) that either of you got during your marriage. Even if something is only in one of your names, it is still “marital property” if you got it while you were married. The divorce order must include how all of your “marital property” is going to be divided.
Usually, property you got before you were married, and gifts made just to you during the marriage aren’t marital property. You can each claim your own “non-marital” property.
You may have committed to each other privately or through a domestic partnership or civil union before same-sex marriage was legal and then married later. One or both of you may want some of your non-marital property to be considered marital because of your earlier commitment. If this is an issue in your divorce or if you have pensions, retirement plans, or other property issues, you should seek legal advice. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.
What is domestic partnership?
Domestic Partnership is a term used in many contexts. In Maine, there is a state sanctioned domestic partner registry. In addition, some Maine employers offer “domestic partnership” benefits of their own to unmarried couples.
What is the Maine Domestic Partnership Registry?
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.” 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.” 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 their 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,” 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.
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.
Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records webpage: Domestic Partner Registry – Division of Public Health Systems | MeCDC | Maine DHHS.
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.
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. (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.”
- Maine’s Family Medical Leave Law was amended in June 2007 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.
- In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Workers Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances.
- 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.
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.
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 (domestic partnership 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.
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
Even when employers provide these benefits, 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 their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. 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 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.
However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their 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 their partner’s designation of another person for survivor benefits.
What steps can a couple take to safeguard their relationship in Maine?
Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:
- 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.
- Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. 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 their 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.” 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: 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 their 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. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.
While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person they want 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” 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 their 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. The Attorney General’s Office has a model advance directive posted on their website, Advance Health-Care Directive Form | Maine.gov .
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. 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. ”This provision might be cumbersome to enforce but provides a way for a partner to be involved in their 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) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they 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.
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.81 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 an unmarried couple separates, what is the legal status of a relationship or 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.
PLEASE NOTE: If a person has changed their mind about who should be their 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.
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBTQ+ 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;
- Not allow the absence of agreements or legal relationships to determine outcomes;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.
For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families | GLAD.
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…”93
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. 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.”
If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?
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. Black, 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.” 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.
Is it considered harm to the child if they are 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 the U.S. Supreme Court case, Palmore v. Sidoti, 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.”
Does it matter if my ex knew or suspected I was LGBTQ+ 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 their spouse’s sexual orientation at the time of the initial court proceedings, but learns it later, they may argue that this is a substantial change of circumstances and that the custody issues should be reviewed.
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.
Can a court keep my kids 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,98 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. Texas, 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.
History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia.
Maine Estate Planning, Probate and Trusts Legal Resources: Estate Planning, Probate, and Trusts Legal Resources | Maine State Legislature.
Divorce: Divorce: Maine Judicial Branch.
Decisions About Children: Decisions about Children: Maine Judicial Branch.
Cases & Advocacy
To see Family cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”
News & Press Releases
To see news and press releases about Family in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”