Know Your Rights: Family Rights in Maine

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Family | Parenting | Maine

What is the Maine Parentage Act?

The Maine Parentage Act (MPA) is a set of state laws that was passed in 2016 and strengthened in 2021. It clarified and expanded the ways someone can legally establish that they are the parents of a child. The MPA addresses who is able to, and how to, establish legal parentage. See: Title 19-A, §1851: Establishment of parentage.

Specifically, the MPA ensures greater protections and equal treatment for children of LGBTQ+ parents. The law allows many LGBTQ+ parents to establish parentage through a simple form, an Acknowledgement of Parentage (AOP), ensuring LGBTQ+ parents are able to establish their legal relationship to their child immediately at birth or any time before the child turns 18.

The MPA also extends an accessible path to parentage for children born through assisted reproduction and for children born through surrogacy.

親子關係是什麼意思？

「親子關係」表示您在各方面都是孩子的合法父母。親子關係賦予您一系列權利（例如，醫療或教育方面的決策權，在與孩子的另一方父母分離時享有撫養時間），同時也承擔著責任（例如，提供醫療保險、滿足基本生活需求、支付子女撫養費）。穩固的合法親子關係對於孩子的長期穩定和福祉至關重要。

為什麼快速確認親子關係很重要？

孩子出生後儘快確立親子關係，可以確保孩子在各方面都與父母緊密相連，並讓所有與孩子生活相關的人都能更清晰地了解情況。例如，確立親子關係可以讓父母在孩子早期做出任何醫療決定，確保孩子獲得保險金或繼承權，並在父母分居時保護他們的父母權利。

How can Maine families establish parentage under the MPA?

The MPA provides that Mainers can establish their parentage in the following ways:

生育（代孕除外）
採用
Acknowledgement (by signing an Acknowledgement of Parentage)
推定（包括婚姻推定）
遺傳連結（精子或卵子捐贈者除外）
事實親子關係
透過輔助生殖技術實現預期親子關係
Intended parentage through a gestational carrier agreement
裁決（法院命令）

Also, the Court may accept an admission of parentage that is made under penalty of perjury, or the Court may assign parentage to a party in default as long as the party was properly served notice of the proceeding (see 19-A MRS §1841 和 §1842).

誰是預期父母？

An intended parent is a person 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. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.

誰是推定父母？

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Acknowledgement of Parentage, by an adjudication, or as otherwise provided in the MPA.

如果以下任何一項屬實，您就是推定的父母：

You are married to the child’s birth parent when the child is born;
You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce;
You attempted to marry the child’s birth parent and the child is born during the invalid marriage or within 300 days of it being terminated by death, annulment or divorce;
You married the child’s parent after the child was born, asserted parentage and are named as a parent on the birth certificate; or
You resided in the same household with the child and openly held out the child as your own from the time the child was born or adopted for at least two years and assumed personal, financial or custodial responsibilities for the child.

誰是事實上的父母？

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence that you have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life. To make that finding a court must determine all of the following:

You lived with the child for a significant amount of time;
You consistently took care of the child;
A bonded and dependent relationship has been established between the child and you, the relationship was fostered or supported by another parent of the child, and you and the other parent have understood, acknowledged or accepted that or behaved as though you are a parent of the child.
You took full and permanent responsibility for the child without expectation of financial compensation;
Continuing a relationship with the child is in the best interests of the child.

What is an Acknowledgement of Parentage?

Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgement of Parentage program.

Federal regulations require states to provide an Acknowledgement of Parentage program at hospitals and state birth record agencies. Acknowledgement of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.

By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgement of Parentage has the binding force of a court order and should be treated as valid in all states.

How do I establish my parentage through an Acknowledgement of Parentage?

You can voluntarily acknowledge the parentage of a child by signing a form from the Maine Department of Health and Human Services known as an Acknowledgement of Parentage (AOP). An Acknowledgement of Parentage must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the Acknowledgement of Parentage). The other parent can be the genetic parent (except for sperm or egg donors), an intended parent of a child born through assisted reproduction or a gestational carrier agreement, or a presumed parent (see definition of presumed parent above).

Signing an Acknowledgement of Parentage form is voluntary, and it can be done at the hospital soon after birth or until the child turns 18 by contacting the Maine Department of Health and Human Services. Here is a sample of the form, VS-27-A: Acknowledgement OF PARENTAGE (AOP).

An Acknowledgement of Parentage form must be notarized. To be valid, the people signing the form must be given oral and written notice explaining the legal consequences, rights, and responsibilities that arise from signing an Acknowledgement of Parentage. If either the birth parent or the non-birth parent does not want to sign this form to establish parentage for the non-birth parent, then either of them can try to have a court determine parentage.

如果您對是否簽署親子關係確認書有任何疑問，請在簽署前諮詢律師。親子關係確認書相當於法院對親子關係的判決，而親子關係是一項重大的、終生的責任。

When can I not establish parentage through an Acknowledgement of Parentage?

在另一方父母不是孩子的親生父母的情況下（例如，孩子被另一方父母收養），推定父母試圖確立親子關係時，必須透過裁決確立親子關係，而不能透過親子關係承認書確立親子關係。
Parentage cannot be established through an Acknowledgement of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage.
A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgement of Parentage until the child is two.

When can a parent sign an Acknowledgement of Parentage?

Acknowledgements of Parentage can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgement of Parentage can also be completed before the child’s birth but will not take effect until the child is born.

How can an Acknowledgement of Parentage be rescinded?

If you aren’t married, and you signed an Acknowledgement Parentage, you have sixty days to go to court and rescind, or take back, that acknowledgement. If it has been more than 60 days since you filed the acknowledgement, but less than two years, you can still go to court to challenge the acknowledgement if:

You were lied to about being the parent;
You were forced or coerced into signing the Acknowledgement; or
You or the other parent were wrong on the facts that made you think you were the parent.

These same rules apply if you believe you are the parent, but someone else has acknowledged that they are the parent of the child.

You can’t challenge an acknowledgement after the child is two years old.

You will need to prove to the court that the person who acknowledged paternity is NOT the parent.

If you believe you are the parent of a child, but you had no way of knowing it when the child was born, you can challenge an acknowledgement of parentage. You have two years from the time you found out you might be the parent to challenge an Acknowledgement. This is the only situation where someone can challenge an Acknowledgement of Parentage that is more than two years old.

如果我不是親生父母怎麼辦？我該如何確立自己身為合法父母的身份？

The MPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction or a gestational carrier agreement or have a genetic connection (except for sperm or egg donors), you can establish parentage by signing an Acknowledgement of Parentage.

Some non-biological parents can establish parentage through the MPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

MPA 如何幫助人們透過輔助生殖技術受孕？

The MPA provides important clarity and protections for children born through assisted reproduction (i.e., you did not have sexual intercourse or use a gestational carrier to conceive). The MPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the MPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent and can establish that parentage by signing an Acknowledgement of Parentage.

Does Maine require private health plans to provide coverage for fertility care?

Yes, Governor Janet Mills signed LD 1539, An Act to Provide Access to Fertility Care, on May 2, 2022, and the law applies to private health plans which are regulated by the Maine Bureau of Insurance that are issued or renewed on or after January 1, 2023. This includes employers who offer insured health plans. Some employers have self-insured plans, and these are not regulated by the Maine Bureau of Insurance.

The law requires all carriers who offer health plans in Maine to provide coverage for medical interventions including fertility diagnostic care, fertility treatment, and medically necessary fertility preservation.

What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent or co-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Maine.

What is the advantage of doing a second-parent adoption or joint adoption?

共同收養和第二父母收養均可確保您的孩子有兩位合法父母。已婚和未婚夫婦均可選擇聯合收養或第二父母收養。收養允許非法定父母成為合法父母，有權在未經特別授權的情況下為孩子做出決定。收養還允許養父母在其伴侶去世後自動獲得孩子的監護權。同樣，如果養父母去世，即使沒有遺囑，孩子也有權繼承該父母的遺產，並可能領取社會安全遺屬福利。

最後，如果夫妻分居，收養可以確保父母雙方都擁有監護權和探視權，並且任何糾紛都將根據孩子的最大利益來決定，而不是根據誰是法定父母來決定。

如果我們已婚，我們需要進行第二父母收養嗎？

When a child is born into a marriage, Maine law and the law of all states presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.

Now Maine couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgement of Parentage.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.

MPA 如何處理代孕問題？

The MPA has comprehensive provisions about how to establish parentage through gestational carrier agreements. Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement that meets all of the requirements of the statute. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties

要簽訂代孕協議，必須滿足以下所有條件：

The surrogate must be at least 21 and have previously given birth to a child.
All intended parents and the person acting as the surrogate must have completed a medical evaluation and mental health consultation,
The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s).

法律要求代孕協議必須包含若干條款才有效，例如允許代孕者在懷孕期間自行做出健康和福利決定，並要求預期父母支付所有相關的醫療費用。

Can Mainers use genetically related gestational carriers?

Yes. If a carrier is a family member, they can serve as a gestational carrier using their own gametes or genetic material. Someone who is not a family member cannot be a genetic gestational carrier. Otherwise, the same laws, including the need for a valid agreement, apply to genetic and non-genetic carriers.

如果我還沒結婚怎麼辦？

The MPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the MPA aims to treat all Maine families equally.

如果我是跨性別或非二元性別者怎麼辦？

The MPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The MPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the MPA aims to treat all Maine families equally.

一個孩子可以有兩個以上的法定父母嗎？

Yes. Under the MPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.

如果我需要協助解決親子關係問題，我該去哪裡？

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by filling out the form at GLAD 答案或致電 800.455.4523 (GLAD)。

資源

For more information about Maine Parentage Act, see:

保護家庭： Protecting Families: Standards for LGBTQ+ Families – GLAD.

養育變性孩子：養育跨性別或性別擴展的孩子：如何保護你的家人免受虛假的虐待兒童指控.

案件與辯護

To see Family cases or advocacy which GLAD has been directly involved with in Maine, go to: 案件與辯護 – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

新聞與新聞稿

To see news and press releases about Family in Maine, go to: 新聞與新聞稿 – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

Family | Relationships | Maine

GLAD 在爭取婚姻平權的鬥爭中扮演了什麼角色？

GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections and responsibilities of marriage but called them civil unions or registered domestic partnerships.

同性戀者聯盟爭取婚姻平權的鬥爭始於佛蒙特州的訴訟， 貝克訴佛蒙特州同性戀者反歧視聯盟（GLAD）贏得了訴訟，但佛蒙特州最高法院允許立法機構決定如何執行該裁決。佛蒙特州立法機構沒有允許同性伴侶結婚，而是創建了民事結合。 GLAD隨後於2004年在其訴訟中首次在美國為同性伴侶贏得了婚姻權利。 古德里奇訴公共衛生部.

隨後是：

緬因州於 2004 年批准了同居關係，為其提供了部分婚姻保護；
2005 年康乃狄克州的民事結合；
GLAD 的訴訟， 克里根訴公共衛生專員案，於 2008 年為康乃狄克州同性伴侶贏得了結婚權利；
2008 年新罕布夏州的民事結合；
佛蒙特州於 2009 年允許同性伴侶結婚；
佛蒙特州不再允許民事結合，但在 2009 年不將其民事結合轉為婚姻；
2010 年在新罕布夏州結婚；
康乃狄克州於 2010 年將所有民事結合轉為婚姻；
2011 年新罕布夏州民事結合轉為婚姻；
2011 年羅德島州的民事結合；
2012 年在緬因州結婚；
2013 年在羅德島結婚；
羅德島州的民事結合已於 2013 年終止，但現有的民事結合並未轉為婚姻。

在聯邦層面，國會通過了 婚姻保護法（DOMA） 1996年，美國最高法院對同性伴侶進行了先發制人的攻擊，聲稱如果同性伴侶被允許結婚，聯邦政府將不會承認這些婚姻。 2013年6月26日，美國最高法院在 美國訴溫莎案 稱《婚姻保護法》違憲，同性已婚夫婦首次能夠獲得聯邦福利。

最後，在 奧貝格費爾訴霍奇斯案2015年6月26日，美國最高法院裁定美國憲法保障同性伴侶結婚的權利，從而在全國範圍內實現了婚姻平等。同性戀者反歧視聯盟（GLAD）的瑪麗·博諾托（Mary Bonauto）代表原告參加了口頭辯論。 奧貝格費爾, all 50 states are required to issue marriage licenses to same-sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can same-sex couples marry in Maine?

Yes! On November 6, 2012, Maine became the first state to obtain marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature. Maine Question 1, An Act To Allow Marriage Licenses For Same-Sex Couples And Protect Religious Freedom, was approved by the voters of Maine 53 to 47 percent.

For information about how to get married in Maine, see: Maine.gov: Residents: Getting Married in Maine.

其他州和聯邦政府會尊重我的婚姻嗎？

是的。 奧貝格費爾訴霍奇斯案 該決議保證所有州和聯邦政府必須以與異性已婚夫婦同等的方式對待同性已婚夫婦。這意味著，各州和聯邦政府為異性已婚夫婦提供的所有保護、權利和義務也必須提供給同性已婚夫婦。

如果我的配偶過世，我可以獲得社會安全遺屬福利嗎？

是的，因為如上所述，同性已婚夫婦有權享有異性已婚夫婦享有的所有福利。

然而，直到 奧貝格費爾訴霍奇斯案 2015年6月26日的判決顯示，許多同性伴侶生活在一些違反憲法的婚姻法禁止同性伴侶結婚的州。因此，當他們的配偶去世時，他們無法滿足社會安全遺屬福利的條件，即結婚9個月。

為了糾正這種不公平現象，Lambda Legal 提起了兩起訴訟， 伊利訴索爾案 和 桑頓訴社會安全專員案 並成功為從未結婚的同性伴侶申請社會安全遺屬福利（伊利訴索爾案）或最終能夠結婚，但結婚不到 9 個月，其配偶就去世了（桑頓訴社會安全專員案).

這兩項裁決允許因歧視性州法律而被禁止結婚，從而沒有資格申請社會安全遺屬福利的同性伴侶提交申請。然而，申請的成功取決於能否提供足夠的文件，向社會安全局證明他們未能滿足9個月婚姻要求的唯一原因是歧視性州法律。

以下連結提供了更詳細的信息，並包含每起訴訟的常見問題解答，並列出了一些您可以提供獲得遺屬撫卹金所需文件的方式：因違憲的州婚姻法而被排除在社會安全遺屬福利之外的同性伴侶和配偶的相關資訊 | Lambda Legal.

如果我們需要結束婚姻該怎麼辦？

後 奧貝格費爾訴霍奇斯案, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Maine applies its divorce statutes to same-sex couples.

When you are getting divorced, the Court has the power to fairly divide up the property from the marriage. “Marital property” is property (land, homes, cars, appliances, etc.) that either of you got during your marriage. Even if something is only in one of your names, it is still “marital property” if you got it while you were married. The divorce order must include how all of your “marital property” is going to be divided.

Usually, property you got before you were married, and gifts made just to you during the marriage aren’t marital property. You can each claim your own “non-marital” property.

You may have committed to each other privately or through a domestic partnership or civil union before same-sex marriage was legal and then married later. One or both of you may want some of your non-marital property to be considered marital because of your earlier commitment. If this is an issue in your divorce or if you have pensions, retirement plans, or other property issues, you should seek legal advice. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

什麼是同居關係？

Domestic Partnership is a term used in many contexts. In Maine, there is a state sanctioned domestic partner registry. In addition, some Maine employers offer “domestic partnership” benefits of their own to unmarried couples.

What is the Maine Domestic Partnership Registry?

In 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” The specific requirements for registration are set out below.

What protections do I obtain by registering as a domestic partner under the state law?

Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).

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: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)

Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.

Who can register?

Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,” and they meet the following specific requirements:

each partner is a mentally competent adult and not closely related (e.g. close relatives);
the domestic partners have been living together in the state for at least 12 months before the filing;
neither domestic partner is married or in a registered domestic partnership with another person; AND
each domestic partner is the sole domestic partner of the other and expects to remain so.

How do you register in a registered domestic partnership?

All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee.

Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records webpage: Domestic Partner Registry – Division of Public Health Systems | MeCDC | Maine DHHS.

Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence.

How do you end a registered domestic partnership?

A registered domestic partnership is ended by:

the marriage of either registered partner;
the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given. (Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.)

What exists beyond the Statewide registry?

State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner.”
Maine’s Family Medical Leave Law was amended in June 2007 to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services.
In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Workers Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances.
Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot.

To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:

each partner is a mentally competent adult (not required for requesting an absentee ballot);
the domestic partners have been legally living together for at least 12 months;
neither domestic partner is legally married to or legally separated from another person;
each domestic partner is the sole domestic partner of the other and expects to remain so;
the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property.

Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).

Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees’ partners?

Yes. State employees can receive health insurance for their domestic partners.

The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.

Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?

Yes. Many lawyers also believe this result is required by the non- discrimination law if the city or town provides benefits to heterosexual couples.

It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (domestic partnership is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends.

私人雇主可以提供哪些類型的同居伴侶福利？

私人雇主可以為同居伴侶提供許多福利，例如健康保險、家庭醫療或喪假、平等的退休金福利、搬遷費用或使用公司設施

即使雇主提供這些福利，聯邦和州法律也要求同居伴侶與配偶的福利應享有不同的稅務待遇。例如，員工必須就其伴侶的健康保險福利繳納聯邦和州所得稅（除非該伴侶是納稅受扶養人），而配偶則無需繳納。除非伴侶也是納稅受扶養人，否則根據聯邦控制的彈性支出帳戶，伴侶不符合配偶的資格。

至於退休金，根據2006年《聯邦退休金保護法》，雇主可以修改其401(k)計劃，以便非配偶受益人可以保留該資產作為退休資產。如果計劃修改，受益人可以根據員工的死亡情況將401(k)「轉入」個人退休帳戶（IRA），而先前的法律要求受益人一次性提取並繳納401(k)的所得稅。

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

What steps can a couple take to safeguard their relationship in Maine?

Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:

關係協議或合約： Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.
Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

A person may also nominate their guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.” The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.

Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than their legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.

While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person they want to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” can make health care decisions for an incapacitated person.

This provision might be cumbersome to enforce but provides a way for a partner to be involved in their incapacitated partner’s health care decisions absent documentation.

Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments. The Attorney General’s Office has a model advance directive posted on their website, Advance Health-Care Directive Form | Maine.gov .

While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members. Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse. ”This provision might be cumbersome to enforce but provides a way for a partner to be involved in their partner’s end of life decision.

將要： Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
葬禮計畫文件： Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.

If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.81 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.

一個人是否需要律師來取得這些文件？

GLAD 建議與律師合作處理這些文件。

Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable.

Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.

如果未婚夫婦分居，關係或合作協議/合約的法律地位是什麼？

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.

Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.

PLEASE NOTE: If a person has changed their mind about who should be their attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked — with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

有孩子的同性伴侶分手後該遵守什麼標準？

有孩子的同性伴侶分手後應該：

支持 LGBTQ+ 父母的權利；
尊重現有的關係，不論其法律標籤如何；
分手後尊重孩子現有的父母關係；
為孩子保持連續性；
尋求自願解決方案；
記住，分手很難；
調查虐待指控；
不允許因缺乏協議或法律關係而決定結果；
將訴訟視為最後的手段；
拒絕訴諸恐同/恐變性人的法律和情緒來達到預期結果。

有關這些標準的更多詳細信息，請參閱出版物《保護家庭：LGBTQ+ 家庭標準》，網址為：保護家庭：LGBTQ+ 家庭標準 | GLAD.

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:

The age of the child;
The relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare;
The preference of the child, if old enough to express a meaningful preference;
The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
The stability of any proposed living arrangements for the child;
The motivation of the parties involved and their capacities to give the child love, affection and guidance;
The child’s adjustment to the child’s present home, school and community;
The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
The capacity of each parent to cooperate or to learn to cooperate in childcare;
Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
The effect on the child if one parent has sole authority over the child’s upbringing;
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;
The existence of any history of child abuse by a parent;
All other factors having a reasonable bearing on the physical and psychological well-being of the child; and
A parent’s willful misuse of the protection from abuse process…”93

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. 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.”

如果我與前任異性戀伴侶育有一子，而我現在與同性伴侶有關係，我的前任可以在監護權訴訟中利用我的性取向來對付我嗎？

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.

在 Whitehead v. Black, 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.” 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.

如果孩子因為父母是同性戀而被嘲笑，這算是對孩子的傷害嗎？

不應該。身為同性戀父母，額外的責任之一就是幫助孩子應對這種可能性或現實。當然，孩子可能會因為各種原因被嘲笑，從耳朵的大小、父母的口音，到缺乏時尚感，所以所有父母都需要幫助孩子培養應對同儕騷擾的機制和策略。

As a legal matter, particularly instructive is the U.S. Supreme Court case, 帕爾莫爾訴西多蒂，美國最高法院在該案中推翻了佛羅裡達州法院將監護權從母親轉移到父親的判決。監護權轉換的原因是白人母親與一名黑人男子有染，後來她嫁給了該男子。最高法院承認偏見和歧視的現實存在，並且孩子可能會被戲弄，但拒絕迎合這些偏見或通過改變先前的監護權安排賦予其法律效力。在一份適用於所有人的憲法原則聲明中，最高法院一致表示：“憲法不能控制偏見，但也不能容忍偏見。私人偏見可能超出法律的範圍，但法律不能直接或間接地使其生效。”

如果我的前任在我們分手前就知道或懷疑我是 LGBTQ+，這有關係嗎？

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 their spouse’s sexual orientation at the time of the initial court proceedings, but learns it later, they may argue that this is a substantial change of circumstances and that the custody issues should be reviewed.

當然，如果一方配偶或前異性戀伴侶在法院審理確定監護權時知道另一方的同性戀傾向，那麼以此為由提出修改請求就毫無意義。

當我的伴侶在場時，法院可以阻止我的孩子探望嗎？

This issue has not been decided by the Maine Law Court, but a Superior Court case, Stone v. Stone,98 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 勞倫斯訴德克薩斯州美國最高法院所做的遠不止性行為合法化。它承認同性戀者有權建立和維持充滿愛的人際關係，並享有不受政府限制和法律譴責的私人生活。由於同性戀者可以做出“與家庭關係[和]撫養子女相關的個人決定”，因此監護權和探視權的限制必須得到相應處理。法院與父母之間道德價值觀的差異、對同性戀父母行為的推定，或對他們關係的“社會譴責”，如果曾經是，就不應再成為允許的因素。

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.

資源

美國同性婚姻的歷史：美國同性婚姻的歷史—維基百科.

Maine Estate Planning, Probate and Trusts Legal Resources: Estate Planning, Probate, and Trusts Legal Resources | Maine State Legislature.

Divorce: Divorce: Maine Judicial Branch.

Decisions About Children: Decisions about Children: Maine Judicial Branch.

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