A divorce case playing out in Oklahoma offers a frightening reminder of why nonbiological/nongestational parents in same-sex couples need to get confirmatory adoptions, court orders, or equivalents, even if they are married and on their children’s birth certificates.
Kris Williams and Rebekah Wilson married in 2019 and had a son later that year, reports KFOR. Both of their names were placed on his birth certificate, and they named him for a family member on Williams’ side of the family. They are now divorcing, and Wilson asked the Oklahoma County District Court to remove Williams, the nongestational parent, from the birth certificate. (Wilson also filed a Victim Protection Order against Williams late last year, but regardless of her reasons for doing so, that to me seems a separate matter from whether she is a legal parent to the child.)
The judge ruled on January 27 in Wilson’s favor, writing that Williams “could have pursued a legal remedy to establish parental rights and she failed to do so and as such, the child is not a child of the marriage.”
Court filings show that Wilson’s attorney specifically made the case that because second-parent (confirmatory) adoption was available to Williams, but she did not take advantage of it, she “is without a legal avenue in Oklahoma to establish parentage.” The attorney also claimed, “While there is a presumption that a father is a parent if he is married to the mother” under Oklahoma law, “the law has not been updated to account for same-sex marriage, and there is no presumption that the wife of the mother is a parent of the child.”
In other words, if a child is born to a different-sex married couple, they are presumed to be the legal child of both parents, but not if they are born to a same-sex couple. To my (non-lawyer) mind, this is a flagrant violation of the equal marital rights guaranteed by the 2015 Obergefell ruling of the U.S. Supreme Court, not to mention the 2017 U.S. Supreme Court decision in Pavan v. Smith, which said both parents in a same-sex couple have the right to be on their children’s birth certificates.
To complicate matters further, court filings show that a man claiming to be the child’s biological father has filed a motion to intervene in the case, stating that he’s been “an integral part of the child’s life” and the mothers “held him out to be the child’s biological father,” a role he accepted. He now wants to establish his parentage in order to deny Williams hers.
Wilson and her attorney, responding and affirming his biological fatherhood, claim that although Oklahoma affirmed the rights of nonbiological parents as equal to biological ones in Schnedler v. Lee, the subsequent case of Guzman v. Guzman clarified that Schnedler only applies to unmarried couples. They also made the argument that if lesbian mothers could both be on the birth certificate without a second-parent adoption, that would be unfair to gay men, who, because of biology, cannot be parents without a second-parent adoption. That, they claim, violates the Equal Protection Clause of the 14th Amendment. (No, that doesn’t make sense to me, either. If second-parent adoptions aren’t needed for lesbian mothers, presumably they wouldn’t be needed for gay men, either. And I am here following the language of the filings, but note that of course bisexual parents in same-sex relationships would have the same issues.)
Williams and her attorney responded, citing Pavan.
Both parties were in court last week on a motion from Williams for the judge to reconsider, but the hearing was then delayed until June 1.
The Williams/Wilson situation is an awful case. Williams hasn’t seen her son in nearly 20 weeks now. It is also one of many cases over the years in which a biological/gestational mother has tried to keep a nonbiological/nongestational mother from her parental rights after a divorce or separation, with potentially disastrous consequences not only for the family in question, but also for other LGBTQ families.
This case could escalate like that, too, I think, especially since Wilson’s lawyers are making (U.S.) constitutional claims. Let’s look back a few years, to when Indiana had been trying to make the argument in Box v. Henderson that biology trumps marital status in determining parentage. A 2020 ruling of the 7th U.S. Circuit Court of Appeals, however, said Indiana could not refuse to put both same-sex spouses on the birth certificate of a child born to one of them. The court wrote, “After Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” The U.S. Supreme Court refused to hear an appeal, meaning the ruling stands. That’s a good thing.
If the Williams/Wilson case goes further, however, it would end up in a different circuit court, which could rule differently (though I personally can’t see how they would get around Obergefell and Pavan). Two differing circuit court opinions could then head for showdown in the U.S. Supreme Court. Consider the composition of the Supreme Court today, and that’s a pretty scary scenario.
What to do? First, it’s important to understand that simply being on a child’s birth certificate is not enough to guarantee parental rights in any state, since a birth certificate is not a court document. As Lambda Legal has explained, “Ultimately a birth certificate is only evidence of parentage; in and of itself it does not conclusively confer a legal parental status.” When a married, nonbiological parent is placed on a birth certificate without an adoption or other court order, it is because the state recognizes the marriage and presumes any children of that marriage to be children of both spouses, as GLAD Senior Staff Attorney Patience Crozier explained in an interview with me a few years ago. The danger is if the nonbiological parent travels to (or, as this case shows, live in) a jurisdiction that doesn’t recognize the marital presumption for someone who’s not biologically related to that child.
Yes, this is unfair. No, we shouldn’t have to submit to the expense, hassle, and humiliation of adopting our own children or going to court to secure our parentage. (I had to do it myself.) Yes, this unfairly burdens families with fewer financial resources. At the current moment in time, however, this is the best way to ensure our parental rights are recognized.
Next, please see this post I wrote a couple of years ago about confirmatory adoptions and other options available to help you legally protect your family. I’m not a lawyer myself, but have listed resources that can help you find one and evaluate the best way forward for you, depending on the state you live in.
