
Second Parent Adoption | Maine
在缅因州,同性伴侣可以共同收养孩子吗?
Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple (In re Adoption of M.A.,—- A.2d——, 2007 WL 2446019 (Me. 2007)). In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD’s publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption.
What is the difference between joint, second-parent, and single-parent adoptions?
A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is where a single individual adopts a child.
第二父母收养或共同收养有什么好处?
An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.
Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.
With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent’s work record.
Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.
如果我们已婚,我们需要进行第二父母收养吗?
当婚姻关系中生下孩子时,缅因州法律以及所有州的法律都推定夫妻双方均为孩子的父母,并且双方姓名均列在孩子的出生证明上。然而,这只是一种推定,可以在法庭上提出异议。因此,同性恋者反堕胎联盟(GLAD)过去曾建议已婚夫妇进行第二父母收养,以确保非亲生父母的亲子关系,因为收养是法院判决建立亲子关系,其他州必须尊重这一判决。
现在,缅因州的夫妇可以通过第二种方式来保护非亲生伴侣的亲子关系,那就是签署亲子关系承认书。
如果我是已签署亲子关系承认书的父母,我还需要进行第二父母收养吗?
不。签署了亲子关系确认书的父母无需再进行第二次收养来确立亲子关系。亲子关系确认书根据州法律确立了合法的亲子关系,相当于州法律下的法院亲子关系判决,并赋予您作为父母的所有权利和义务。根据联邦法律,亲子关系确认书相当于司法亲子关系判决书,应在所有州得到承认。
由于扩大亲子关系确认书的获取渠道是一项新兴发展,一些父母可能更愿意在亲子关系确认书的基础上,甚至代替亲子关系确认书,完成第二父母收养。为了了解最适合您家庭的方案,建议您寻求个性化的法律咨询。
Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?
There are a number of steps that can be taken, although none offer the security of a second parent adoption or marriage. Among these are:
- 共同抚养协议: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be enforceable as a contract, they are important indicators of what the couple’s intent was when they formed their family and what they believed was in the best interests of the child, and thus may be influential on a court’s assessment of who the parents are and their respective parental rights and responsibilities.
- 遗嘱: The legal parent may nominate a guardian of the child upon the parent’s death. These “testamentary appointments” are given strong and respectful consideration by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian (see 18-A Me. Rev. Stat. sec. 5-301 et seq).
- 共同监护: This process allows a biological or adoptive parent to name his or her partner as a co-guardian so that the partner may secure medical attention and health insurance for the child and in most other ways act with the legal authority of a parent. The Probate Court may appoint the legal parent and his or her partner as co-guardians if the legal parent consents to the appointment and the court finds the appointment to be in the best interests of the child (see 18-A Me. Rev. Stat. sec. 5-204(b). GLAD’s case, In re Guardianship of I.H., 834 A.2d 922 (Me. 2003), clarified the law in this area. See also https://www.gladlaw.org/current/pr-detail/maine-high-court-affirms-lesbian-couples-right-to-petition-for-full-coguard/). This status is not permanent, and may be terminated by the court upon a legal petition if the guardianship is no longer in the best interests of the child. Additionally, co-guardianship status ceases to be recognized once the child reaches the age of eighteen (A Me. Rev. Stat. sec. 5-212(d). In addition, a court can order a “de facto” guardianship even if the parents do not consent where the child has lived with another person and the parents have consistently not participated in the child’s life. 18-A Me. Rev. Stat. sec. 5-101).
- Power of Attorney Delegating Parent’s Rights: This document is signed by the parent and delegates to another adult all powers regarding that parent’s child, except the power to consent to the child’s adoption. It must be notarized, and it must be renewed every six months.
If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?
This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a “de facto parent,” then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:
- the de facto parent must have developed a parent-child relationship with the child;
- the legal parent must have consented to and encouraged the development of this relationship;
- the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent (see Stitham v. Henderson, 768 A.2d 598, 605-06 (Me. 2001) (Saufley, J., concurring) (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)).
The Law Court added that a de facto parent “must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life” (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together.
Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication, 保护家庭:LGBT家庭标准.