Same-Sex Couples: Child Custody Issues in Maine

Same-sex marriage has been legally recognized in Maine since 2012 and federally since 2015.

All states are mandated to recognize a same-sex couple’s right to marry, but this doesn’t prevent legal issues from arising when they separate or divorce.

Many married same-sex couples (as well as domestic partners) with children have encountered child custody issues during separation, as well as other typical problems, such as asset distribution and support.

The divorce/separation process for same-sex couples can lead to the same types of disputes and legal challenges as heterosexual couples — and sometimes, there are additional complications.

Here’s what you need to know about child custody issues for same-sex couples in Maine.

When same-sex couples with children separate in Maine, child custody and support issues may arise.

Child custody matters center on who the child lives with, spends time with and is involved in the decision-making responsibilities for the child. Support issues concern how the child’s upbringing is funded.

The laws regarding same-sex couples and child custody/support are still relatively new and recent cases have tested the legal system in Maine. Challenging legal situations have arisen for some couples so it helps to know more about your legal rights and responsibilities as parents from a qualified family or divorce lawyer.

If a same-sex couple has children after marrying in Maine, it can complicate the separation process.

Like heterosexual couples, both parents have equal rights to custody and visitation for any child born during the marriage. Ideally, the couple agrees on how best to handle the situation in the best interests of the child.

However, in the case of custody, visitation or support disputes, a judge may be asked to rule on the matter after both sides have presented evidence. Judges in custody cases in Maine put the best interests of the child first. It is generally accepted that a child benefits from maintaining a relationship with both parents, so the courts strive for arrangements that work best for the family.

A child will normally live and spend the majority of time with one parent. The other parent will have regular visitation rights and be required to pay support as their share of the obligation to raise the child.

However, if domestic violence or abuse issues could affect the child, this may affect a judge’s decision. Decisions can also be complicated in situations where one parent has a biological relationship with the child and the other parent marries the biological parent after the child is born.

In this case, to enjoy equal custody and visitation rights (and to be liable for the support obligation), the non-biological parent must have taken steps to adopt the child or obtain a parentage judgment.

For unmarried, same-sex couples who separate, custody and child support decisions depend on the legal parental status of the parties involved.

The courts in Maine are likely to rule that a “second parent” without formal legal adoption or a parentage judgment has no legal custody rights over the child.

However, exceptions may be made if the parent has played an essential role in raising the child. A second parent with legal adoption or a parentage judgment is considered to enjoy the same legal rights and obligations as a biological parent with custody and support issues.

The Maine Parentage Act (MPA) is a set of state laws passed in 2016 and later strengthened. The Act clarified and expanded the eligibility criteria and ways for individuals to legally establish parentage of a child.

One of the key points of the MPA was to grant greater protections and equal treatment to children of same-sex parents. For married heterosexual couples, the law presumes that the spouses are the parents of the child — unless proven otherwise. The same does not apply to same-sex couples with children.

Under the new legislation, same-sex parents can establish parentage by completing a simple form called an Acknowledgement of Parentage (AOP). This can be done immediately at birth or at any time before the child turns 18.

The MPA also simplifies the process by which same-sex couples can become parents of children born through assisted reproduction or surrogacy.

As already referred to, there are two ways in Maine to ensure that a child of married or unmarried same-sex couples has two legal parents with access to custody and visitation rights:

1. Joint adoption
2. Second-parent adoption

Both allow non-biological parents to become legally recognized parents who are entitled to make decisions for the child without authorization and automatically assume custody of the child if their partner dies.

If the adoptive parent dies, the child benefits by being able to inherit property from that parent even if no will has been written (under Maine’s laws of succession).

Most states (and the Maine Superior Court) have ruled that a parent’s sexual orientation is not relevant unless there is actual evidence of harm to the child.

Generally, then, we do not expect judges to consider sexual orientation when making same-sex-parent custody decisions involving children from a previous straight relationship — and some lawyers even refuse to make this argument.

The Maine courts make decisions involving parents based on the best interests of the children and consider parents as equals, whether married/unmarried or straight/gay.

The factors that will be considered by the judge concern the child’s welfare only. Non-gay parents receive no preferential treatment over gay parents.

The law says the following:

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)).

If you need any assistance with a legal matter involving same-sex child custody or support, contact an experienced divorce attorney at The Maine Divorce Group.