Originally published on Advocate.com November 06 2003 12:00 AM ET
Maine's highest court suggested Tuesday that same-sex partners may be appointed as full co-guardians of minor children. In a case called Guardianship of I.H., Maine Supreme Judicial Court justices wrote that the answer "is not in doubt" as to whether probate courts may appoint a co-guardian with a natural or legal parent.
The opinion acknowledges that gay and lesbian partners have the same rights as heterosexual partners to have full co-guardianship rights, said Mary Bonauto, an attorney with the nonprofit Gay and Lesbian Advocates and Defenders in Boston. Bonauto said probate courts across Maine have been denying same-sex partners full co-guardianship rights for several years because judges were unclear as to what the law allowed them to do. She said Tuesday's decision affirms that a parent and another person-- gays and lesbians included--can be full co-guardians if it is in the best interest of the child. "It is our hope that this will end the practice of automatically denying full co-guardianship status to gay and lesbian parents," Bonauto said.
The court's decision came in response to two questions from a Kennebec County probate court judge in a case involving a lesbian couple, who are not identified in court papers. One of the partners had a child using sperm from an anonymous donor from a California sperm bank. The partners share parenting duties and have co-parenting and domestic-partnership agreements, according to court documents. The couple filed a petition with the probate court seeking to be named full co-guardians of the child. The judge asked the supreme court whether two people may be co-guardians of a child if one is the natural parent and the other is not.
Bonauto said without full co-guardianship rights, partners can be on legal shaky ground on a number of issues, such as making medical decisions for their children.
While the court did not make a ruling specifically on the issue, the language by the justices made clear that same-sex partners have the rights to be co-guardians, Bonauto said. "When the law court speaks, everyone has to listen," she said. "So if they say this is how you look at a guardianship issue, then they have final word on that."