Marriage Equality Does Not Equal Parentage Equality
By Bill Singer of Singer & Fedun, LLC, in New Jersey
With the jubilation over the Supreme Court marriage equality ruling, a misapprehension has arisen that just being married confers legal parentage. Don’t be confused. Marriage and parentage are intertwined, but they are not equal and should not be conflated.
Vital Statistics puts the spouse of a woman who gives birth on a birth certificate based on a marital presumption — it is presumed that the mother’s spouse is biologically the second parent of the child. Because it is a presumption, it can be rebutted by proof that the named individual is not biologically related to the child.
When a birth certificate has been challenged, courts have consistently held that the birth certificate is only an administrative record of what was reported. A birth certificate cannot convey or terminate parentage.
Everyone uses birth certificates in daily life. Yet, a birth certificate is merely indicia of parentage — it is not proof of parentage. For example, agencies like Social Security have denied benefits to a child when the non-biological parent only had a birth certificate to prove her parentage. Parentage comes in many forms. Laws about parentage are nuanced. They change from state to state, as well as internationally. If a person is not biologically related to a child, she must obtain a judicial adoption or parentage order to confirm parentage.
Note from CHA: This sort of thing is even more important in Texas than it would be for Bill’s clients up in New Jersey, because in Texas it is so easy for someone to move to a county where the judges are antagonistic towards LGBT couples. (Cedar Park people in Williamson County, I’m looking at you.) So if there is a death of a parent and family members of the parent and child want to argue parentage, or there is a nasty break-up of the parents, adoption provides the best protection. There are strong protections for adoptions in Texas, like a statute saying no attacks to adoptions after six months, and case law saying that the other parent in the couple might well be stopped from attacking her partner’s adoption at any time. So an antagonistic judge would find it next to impossible to set aside an adoption. But that is not the case when there is just a birth certificate. (A middle ground may be a parentage order based on a presumption of maternity; this is weaker than an adoption, but stronger than no order at all.)
