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Maine Lesbian Co-Parent Win

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High court approves parental rights for biological mother’s ex-girlfriend

In another impressive victory for Gay and Lesbian Advocates and Defenders (GLAD), New England’s feisty lesbian and gay public interest law firm, the Maine Supreme Judicial Court ruled unanimously on April 6 that a lesbian co-parent who had bonded with her partner’s child should be awarded full parental rights and responsibilities after the couple broke up, even though she made no previous attempt to adopt the child.

The ruling, announced in an opinion for five members of the court by Justice Jon D. Levy, comes on the heels of two triumphant wins in the Massachusetts Supreme Judicial Court in the struggle for same-sex marriages––the original November decision and its affirmation in February. GLAD attorney Mary Bonauto was the lead counsel in all three cases.

The Maine case involves a lesbian couple, identified only by their initials, C.E.W. and D.E.W., who began living together in 1992. They agreed that D.E.W. would conceive a child through donor insemination, and that the women would raise the child together as equal parents. They signed parenting agreements and changed their last names so that both women would have the same last name as the child.

In 1999, the women’s partnership ended and D.E.W., the biological mother, moved out, leaving the child, then about seven years old, with C.E.W. in the house they had shared. After the separation, the women signed a new parenting agreement providing for continued equal sharing of parental rights, responsibilities, and contact with the child, but also agreed that the child’s “primary residence and visitations will be determined by the legal system.”

By all accounts, the child thrived under this arrangement and, according to the court, “has bonded with C.E.W. as his parent.” Aiming to protect her parental rights and her ability to fulfill her parental responsibilities, C.E.W. filed a lawsuit in the Superior Court in 2000, seeking a formal declaration of her parental rights and an order that would prevent D.E.W. from ever denying her status as a parent. There is no indication in the court’s opinion that any kind of tension between the women led C.E.W. to take this step, but it roused D.E.W. to some opposition.

Without denying that C.E.W. is a de facto parent to the child, D.E.W. argued that under a traditional reading of Maine’s domestic relations statutes, an unrelated person cannot be awarded legal parental rights over a child if the child is in the legal custody of its biological parent and is not found to be endangered. The Superior Court case involved rulings by several different judges and ultimately led to a judgment in C.E.W.’s favor. D.E.W. appealed the ruling that C.E.W. is entitled to legal recognition of parental rights.

Reviewing the court’s recent precedents in custody cases, Justice Levy rejected D.E.W.’s narrow reading of the statutes, finding that the Superior Court has authority to make rulings “in the best interest of the child” in situations like this.

“We have previously recognized that as a corollary of a court’s equitable jurisdiction to determine a child’s best interest and award parental rights and responsibilities, it may, in limited circumstances, entertain an award of parental rights and responsibilities to a de facto parent,” he wrote.

Noting that D.E.W. did not dispute the Superior Court’s finding that C.E.W. is a de facto parent of their son, Levy asserted that “when an individual’s status as a de facto parent is not disputed and has been so determined by a court properly exercising jurisdiction in a declaratory judgment action, the court may consider an award of parental rights and responsibilities to that individual as a parent... based upon a determination of the child’s best interest.”

However, the court did not specifically address the issue of what standard a trial judge is to use in deciding whether somebody is a de facto parent, because such a discussion was not required in this case on account of D.E.W.’s concession that, whatever the standard is, C.E.W. has met it. “However this term is ultimately defined as it is fleshed out by the Legislature or the courts in the future,” wrote Levy, “it 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.” This description would certainly be consistent with rulings by courts in other jurisdictions, most notably New Jersey, where the Supreme Court has enthusiastically embraced the de facto parent concept for same-sex co-parents.

Two members of the court, Justices Robert W. Clifford and Paul C. Rudman, submitted a separate concurring opinion, sounding a note of caution about the court’s enthusiastic embrace of broad authority in these kinds of cases. They emphasized that a finding that somebody is a de facto parent was only an intermediate stage in a case; it was also necessary that the court determine whether recognition of parental rights and responsibilities is in the best interest of child.

In this case, the Superior Court had already made such a determination, however, so they agreed with the ultimate disposition of the case, which was to affirm the Superior Court’s declaration that C.E.W. has the legal rights and responsibilities of a parent toward her son, which D.E.W. may not deny in the future.

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Updated 5:17 pm, July 20, 2018
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