Maine Parentage Act: Who can be a parent? | Pine Tree Legal Assistance

Introduction

In 2015 Maine updated its laws about families. This law is called the Maine Parentage Act. It took effect on July 1, 2016. The Maine Parentage Act recognizes same sex couples, and applies to men, women, and people with different gender identities equally.

This is an introduction to some of the biggest changes in the law.

What are the big changes?

All children have the same rights. It doesn’t matter if a child’s parents are married, or what gender their parents are.
There are clear legal requirements for "de facto parentage."
A child can legally have more than two parents. This might happen when a child has a mother and a father, and also a different person caring for them. This person may be a de facto parent. Learn more about de facto parents here.
There is a legal process for having a child with the help of a surrogate.

NOTE: Parental rights and responsibilities are not changed by this law. It only changes how the court decides who is a parent.

What is Parentage?

“Parentage” is a legal word. It means the legal relationship between a child and a parent. So, to “establish parentage” means to prove that someone is the legal parent of a child. A child's parents have legal rights and responsibilities to the child. When we use the word “parent” below, we mean a person with this legal status. A legal parent does not have to be a biological parent to a child.

There are a few different categories of legal parent:

Presumed Parent

In some cases, people are automatically considered parents. The law presumes that if you fit into this category, you are the parent. There are many ways to be a presumed parent:

You give birth to the child. (except for surrogates)
You are married to the person giving birth when the child is born.
You were married to the person giving birth, and the child is born less than 300 days after your marriage ends.
You were in a legal relationship with benefits and responsibilities like a marriage, and that relationship is recognized as valid in the place it was entered.

If you are not married, you can still be a presumed parent if you fit all points below:

Live with the child from the time they were born or adopted, AND
Treat the child as yours, and tell your friends, family, and community that the child is yours, AND
Take personal responsibility for the child. Care for the child as your own. Support the child financially, AND
You do these things constantly for the first full two years of the child’s life.

It doesn’t matter if you are a man, woman, or have another gender identity - you can be a parent under this law. The Maine Parentage Act recognizes same sex couples as parents.

If you meet all of the points above for the first full two years of a child’s life the Court can find you are the child’s legal parent and that you have all of the rights and responsibilities of a parent, including the responsibility to pay child support for the child.

More than two people might be parents under this law. If this happens, everyone will have to go to court to figure out who the legal parents of the child are.

Acknowledged Parent

If you aren’t a presumed parent, you can still become a legal parent by signing an “Acknowledgement of Parentage.”

This usually happens when parents are not married when a child is born. The parent who isn’t giving birth signs a document stating that they are the biological parent. The parent giving birth also has to sign this form, and it has to be filed with the state. This form is usually signed at the hospital after a child is born.

DeFacto Parent

What if I was wrong about parentage?

Presumed Parents

If you know or believe that you, or the other presumed parent, are not the biological parent of a child, you can challenge this status in court. The only way to dispute presumed parentage is to go to court. Except in rare cases, you can only do this if you bring this to Court before the child turns two years old.

Acknowledged Parents

If you aren’t married and you signed an Acknowledgement of Paternity, you have sixty days to go to court and rescind, or take back, that acknowledgement. This is true even if you signed an acknowledgment for a DHHS representative.

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 acknowledgment; 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. In Court, you will need to prove that the person who acknowledged paternity is NOT the parent.

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

There is one exception to this rule: 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. You have two years from the time you found out you might be the parent to challenge an acknowledgment. This is the only situation where someone can challenge an Acknowledgement of Paternity that is more than two years old.

Court Order

If you go to court to establish parentage, the court will decide if you are a parent under any part of this law.

You are also a parent if you adopt a child, or use a surrogate or assisted reproduction to have a child. Read more about assisted reproduction and surrogacy here.

How can I get a legal decision about parentage?

Only certain people can bring a court case about parentage. To bring a case you need to be:

A child who wants to establish that a person is your parent (through a representative);
Pregnant, or have already given birth to a child, and want to establish who the other parent is;
A person who wants to prove that they are the parent of a child, or
Someone who represents one of these people, like the guardian of a child, or parent who needs to prove that someone is their parent.

DHHS can also go to court to prove someone is a parent.

Most of the time, these issues will come up along with other legal decisions about things like child support, divorce, or parental rights and responsibilities. You won’t need to have separate court cases for all of these issues. They can usually be handled together.

How does the court decide parentage?

If there is no acknowledgement or presumption that someone is a parent, the court can order DNA tests. This testing can also be used where several people dispute who the parent is.

DHHS or a person trying to determine parentage can request DNA testing. The test needs to be paid for up front. The person requesting the testing may pay, or the parties can agree on how the costs will be paid. The court can also order one person to pay the costs of DNA testing. If one or both of the parties are determined to be indigent (in this case, not able to pay for the cost of DNA testing), the Court may waive the cost of DNA testing.

If DHHS wants DNA testing, they will pay for it. If the test shows that you are the genetic parent, DHHS may try to get you to pay back the cost of the test.

The court will decide based on the results of DNA testing whether or not someone is a parent under this law. DNA test results on their own aren’t enough to establish parentage. The court still needs to make a final decision about who is a parent.

If you refuse to take a court-ordered DNA test, the court can decide against you based on your refusal.

If you don’t think the results are right, you can request another test. You must pay for the second test.

What if I know I’m not a biological parent, but I’ve been acting like a parent to a child?

If you aren’t a child’s biological parent, but you’ve acted as a parent to them, you might be a “de facto parent.” De facto parents can have parental rights just like any other parent. You have to go to court to be recognized as a de facto parent.

What is de facto parentage?

A court can decide that a person who is not a biological parent is a de facto parent. This decision gives a de facto parent the same rights as a biological parent through a court order. Different from a presumed parent, de facto parentage can happen when a person has been acting as a parent to a child even if not in the first two years of a child’s life.

How do I prove I’m a de facto parent?

You need to prove to the court, by “clear and convincing evidence” that you meet the legal requirements. The court looks for specific facts such as:

You have lived with the child for a significant amount of time.
You have regularly taken care of the child.
You have developed a close and parent-like relationship with the child. The child depends on you.
A parent of the child has understood, acknowledged, supported, or encouraged you forming and having this close, relationship with the child. You and the other parent have both acted like you are a parent to the child. (An example of this would be a step-parent who has been raising the child as their own for many years).
You have taken on complete and permanent responsibilities as a parent of the child. You have done this because you wanted to, not because you were given money.
It is "in the best interests of the child" to continue having this parent-child relationship with you.

If the court decides that you are a de facto parent, you can read more about parental rights and responsibilities here.

What about surrogacy, donating sperm or eggs, or other kinds of assisted reproduction?

Will I be a legal parent if I donate or sell my sperm or eggs?

No. The new Maine law does not consider donors to be parents. The parents will be the “intended parents” who wanted to have a child using assisted reproduction.

Are surrogates legally parents?

The short answer is “no.” Surrogates are people who carry and give birth to children for another person or couple. Surrogacy is arranged under a contract. Again, the “intended parents,” not the person who carries and gives birth to the baby, will be the legal parents.

The specific rules about these contracts are more complicated. To make sure these agreements are safe and fair for everyone involved, the Maine Parentage Act sets strict rules for surrogacy contracts.

Updated August 2022
PTLA #321A