Learn About Your Family Rights in Maine

Family rights refer to the rights and responsibilities of parents. In Maine, these rights are rigorously protected by law.

When parents’ divorce or separate, the family rights remain, but parents must work out a way to share the rights and responsibilities in the best interests of the children, which can be challenging.

By understanding more about these family rights, ex-spouses can better prepare for what is around the corner after a divorce.

“Parentage” is one of the most important concepts in family law. There are many associated parental rights and responsibilities in Maine. By establishing parentage, the mother and father become the legal parent of a child for all purposes, including decision-making about key aspects of the child’s upbringing, such as medical, religious, and educational choices.

Under Maine law, a stable legal parent-child relationship is regarded as essential for a child’s long-term stability and well-being.

The Maine Parentage Act (MPA) sets out how individuals can legally establish the parentage of a child in the state. The Act was passed in 2016 and updated in 2021 and it applies to all families, including LGBTQ+ families with children.

Parents can establish parentage by simply filling out an Acknowledgment of Parentage form at any time between the birth and when the child turns 18. It is recommended to do this as soon as possible after birth (ideally, at the hospital) so that clarity is provided for the child and loved ones. There are other benefits of doing so, including establishing insurance benefits and inheritance rights for the child.

The Act also eases the process of establishing legal parentage of children born from assisted reproduction or through surrogacy.

Under the MPA, Maine families can establish parentage in a variety of ways:

• Giving birth (except for surrogate births)
• Adoption
• Signing an Acknowledgment of Parentage
• 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

Some of these terms require further explanation.

• Intended parent: an individual 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.
• Presumed parent: an individual that the law recognizes as a parent because of the circumstances or relationships, e.g., a person married to the child’s birth parent when the child is born.
• De facto parent: an individual who becomes a parent because of his/her relationship with the child, as recognized by the court. This is usually established by demonstrating that the parent has lived with the child for a prolonged period, consistently cared for the child, and behaved as a parent would toward a child.
• Adjudication: an order from the court.

Court judgements in parentage cases must be made in the best interests of the child.

The Acknowledgment of Parentage program is a simple voluntary civil process managed by the Maine Department of Health and Human Services for establishing parentage at hospitals and state birth record agencies.

The Acknowledgment of Parentage form is a short affidavit that an individual signs to affirm that they wish to be established as a legal parent with all the associated parental rights and responsibilities. The form must also be signed by the other parent, who can be the person who gives birth to the child, or the intended parent of a child born through assisted reproduction or a gestational carrier agreement.

Once the properly executed and notarized affidavit is complete, it has the same legal power as a court order and is valid in all states. The child’s birth certificate can then be issued or amended to reflect the legal parentage.

The Acknowledgment of Parentage process is entirely voluntary and is normally completed at the hospital immediately after birth.

Some individuals are ineligible to establish parentage by signing an Acknowledgment of Parentage form—as follows:

• A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent.
• If a third person who is a presumed parent exists (unless that person has filed a Denial of Parentage).
• An individual who wants to establish parentage based on residing with a child who is under the age of two (in such cases, the aspiring parent must wait until the child has turned two).

Any individual ineligible to complete an Acknowledgment of Parentage who wants to establish parentage will require an adjudication and will need to petition the court for this purpose.

Non-biological parents are protected under the Maine Parentage Act and, in many circumstances, establishing parentage through a properly executed Acknowledgment of Parentage will suffice. This applies if:

• You are the child’s presumed parent
• You are the intended parent of a child born through assisted reproduction or a gestational carrier agreement
• You have a genetic connection (except for sperm or egg donors)

If none of these apply, non-biological parents will need to petition the court for an adjudication on parentage based on the MPA’s de facto parent provisions.

Same-sex couples have been able to marry in Maine since 2012. The state was the first to grant marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature.

All states and the federal government must treat same-sex married couples identically to different-sex married couples, meaning that when a same-sex couple marries in Maine, the marriage must be respected legally elsewhere in the country. Under the law, the same family rights afforded to different-sex couples must also be afforded to same-sex couples.

Same-sex divorces are ended on the same terms as those with different-sex spouses. Accordingly, a judge has the same powers to apply the state’s property division laws to the marital estate in same-sex divorces.

Even for couples who do not get married but instead register as domestic partners in Maine, some legal protections are afforded. Most notably, these are the following:

• Inheritance rights: if there is no will, registered domestic partners in Maine have the same inheritance rights as a legally recognized spouse
• 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: if one partner dies, the surviving domestic partner will become the first of the next of kin when determining who has the right to make funeral and burial arrangements (though this can be superseded by the provisions made in a correctly executed will).

If you need legal assistance during a divorce or other family dispute in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.