Maine Custody and Visitation Law
Maine courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents. Courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Maine courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Maine law states “When the parents have agreed to an award of shared parental rights and responsibilities or so agree in open court, the court shall make that award unless there is substantial evidence that it should not be ordered. The court shall state in its decision the reasons for not ordering a shared parental rights and responsibilities award agreed to by the parents. …
“The court, in making an award of parental rights and responsibilities with respect to a child, shall apply the standard of the best interest of the child. 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: A. The age of the child; B. The relationship of the child with the child’s parents and any other persons who may significantly affect the child’s welfare; C. The preference of the child, if old enough to express a meaningful preference; D. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity; E. The stability of any proposed living arrangements for the child; F. The motivation of the parties involved and their capacities to give the child love, affection and guidance; G. The child’s adjustment to the child’s present home, school and community; H. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access; I. The capacity of each parent to cooperate or to learn to cooperate in child care; J. Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods; K. The effect on the child if one parent has sole authority over the child’s upbringing; L. The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects the child emotionally and the safety of the child; M. The existence of any history of child abuse by a parent; N. All other factors having a reasonable bearing on the physical and psychological well-being of the child; O. A parent’s prior willful misuse of the protection from abuse process; … P. If the child is under one year of age, whether the child is being breast-fed; and Q. The existence of a parent’s conviction for a sex offense or a sexually violent offense.”
In one 1980 case, Stone v. Stone, the gay father appealed a restriction on his visitation rights — he was not permitted to have overnight visits with his children when he had a male or female visitor. The Superior Court reversed the lower court’s restriction on the father’s visitation rights. In reversing this restriction, the court stated: “Courts may not simply impose their own moral judgments on the lifestyles of the parents. Before parental rights are restricted, there must be a finding in each case, based upon evidence presented, that the particular conduct of the parent is having or will have a deleterious impact upon the particular child or children involved. I can only conclude that the court, rather than focusing on the best interests of the children or the evidence presented, based its decision on its personal dislike of the father’s sexual behavior.”
In a 1976 case, Whitehead v. Black, a Georgia divorce decree granted custody to the mother, who subsequently moved to Maine. The father petitioned the Georgia court for a change in custody on the grounds the mother was a lesbian. The Georgia court granted the petition. The Maine court exercised jurisdiction and found that the best interests of the children would be best served by returning the children to the mother. The court noted that the children had always lived with their mother, that she was otherwise fit, and that she was “aware that her homosexual lifestyle could have an impact on her children and was intelligently seeking to minimize, if not totally eliminate, the impact.”
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
In a 2004 case, D.E.W., the biological mother, appealed from a trial court order which awarded C.E.W, her former partner, parental rights and responsibilities. C.E.W and D.E.W. lived together for more than seven years and the couple agreed to conceive a child together through artificial insemination. After the child’s birth, the couple signed a parenting agreement to maintain equal parenting rights for the child. The couple separated in 1999 and in 2000 C.E.W. filed a complaint seeking a declaration of parental rights. The trial court found that C.E.W. was a “psychological” or de facto parent and declared her eligible to be considered for an award of parental rights and responsibilities. The Supreme Judicial Court of Maine upheld this ruling.
A 2003 case, Guardianship of I.H., also involved a same-sex couple who had a child together. The mother and her partner petitioned to be appointed co-guardians of the child. The Probate Court asked the Supreme Judicial Court for clarification on two questions. One of these questions was whether the court could appoint the non-biological mother as a co-guardian without the biological mother losing any of her rights and responsibilities. The high court affirmed that probate courts have the authority to grant full guardianship or limited guardianship without the biological mother losing any of her rights and in making this determination the court must consider the best interests of the child.
Citations: 19-A M.R.S. §1653 (2); 19-A M.R.S. §1653 (3); Stone v. Stone, 1980 Me. Super. LEXIS 30 (Sup. Ct. 1980); Whitehead v. Black, 2 Fam.L. Rptr. 2593 (Me. Super. 1976); C.E.W v. D.E.W, 845 A.2d 1146 (Me. 2004); Guardianship of I.H., 834 A.2d 922 (Me. 2003).
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Last Updated: 11/9/2004