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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102184
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am in a same sex marriage and want to have a baby. I have

Customer Question

I am in a same sex marriage and want to have a baby. I have searched high and low for this answer and would like to know if both of us can be on the birth certificate.
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Congratulations on your upcoming child! Can you please tell me the following:

1) Was this a private party's "donation," or did you go to a sperm bank, or what exactly happened?

2) Does the father want any type of visitation/custody? Or, not sure?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
It is an anonymous donor from a sperm bank thank you
Expert:  Ely replied 1 year ago.

Thank you.

Okay, there is an important distinction we have to discuss here.

The US Supreme Court last year made same sex marriage legal. This sent a ripple through state laws, because it means that the states have to work out ways to implement this decision. This means allowing same sex couples to take out marriage certificates for example, or to be default beneficiaries under succession rights if one party passes away.

How the states implement this decision is still an ongoing process.

What the decision does not do is state whether or not a married partner in a same sex relationship is automatically considered the parent of a child born into the wedlock. This is still being debated and worked out. At this point, I do not believe that Maine has adopted the process of placing both parents in a same sex marriage on a birth certificate. It may in the future, but just not now. This is all still pretty new and the law is still evolving.

However, Maine has a doctrine called "de facto parent." A Me. Rev. Stat. sec. 5-212(d). 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. Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has provided the following elements as guidelines:

  1. the de facto parent must have developed a parent-child relationship with the child;
  2. the legal parent must have consented to and encouraged the development of this relationship;
  3. the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent.

C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)

However, this is not automatic; it has to be ordered by the Court. Thus, your partner will have two choices:

1) Once the child is born, apply for a de facto parent with you already having rights as the mother; or

2) Once the child is born, apply for full adoption by them with you already having rights as the mother.

Of course, it makes more sense to simply file for adoption. An adoption will have her become a full parent even if her name is ***** ***** on the birth certificate.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never rated positively. I am simply touching base. Let me know. Thanks!

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