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Parenting | Custody & Parentage Laws | Maine

Maine Custody & Parentage Laws Q&A

Can a single gay individual adopt a child in Maine?

Yes (18-A Me. Rev. Stat. sec. 9-301).

Can same-sex partners together adopt a child in Maine?

Yes. More information on adopting in ME can be found, here.

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. Black (2 BNA Family Law Rptr 2593 (Me. Super. 1976)), 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” (Id. at 2594). 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.

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:

  1. The age of the child;
  2. The relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare;
  3. The preference of the child, if old enough to express a meaningful preference;
  4. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
  5. The stability of any proposed living arrangements for the child;
  6. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
  7. The child’s adjustment to the child’s present home, school and community;
  8. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
  9. The capacity of each parent to cooperate or to learn to cooperate in childcare;
  10. Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
  11. The effect on the child if one parent has sole authority over the child’s upbringing;
  12. 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;
  13. The existence of any history of child abuse by a parent;
  14. All other factors having a reasonable bearing on the physical and psychological well-being of the child; and
  15. A parent’s willful misuse of the protection from abuse process…” (19-A Me. Rev. Stat. sec. 1653(3)).

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 (19-A Me. Rev. Stat. sec. 1501). 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, (466 U.S. 429 (1984)) 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” (Palmore, 466 U.S. at 432).

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. 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 (see generally, 19-A Me. Rev. Stat. sec. 1653 (10)).

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 (Me. Super. LEXIS 30 (1980)), 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 (539 U.S. 558, 574 (2003)), 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 standards should same-sex couple with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

  1. Support the rights of LGBT parents;
  2. Honor existing relationships regardless of legal labels;
  3. Honor the children’s existing parental relationships after the break-up;
  4. Maintain continuity for the children;
  5. Seek a voluntary resolution;
  6. Remember that breaking up is hard to do;
  7. Investigate allegations of abuse;
  8. The absence of agreements or legal relationships should not determine outcome;
  9. Treat litigation as a last resort; and
  10. 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.