An Oklahoma judge has vacated her earlier decision that ordered a nongestational mother removed from her child’s birth certificate. This means the mom can stay on the birth certificate, but still does not guarantee her parental rights. It’s a case all queer parents should note carefully.
I wrote about this case in April, but here’s a recap: Kris Williams and Rebekah Wilson married in 2019 and had a son later that year. Wilson carried the child, and both of their names were placed on his birth certificate. They are now divorcing, and Wilson asked the Oklahoma County District Court to remove Williams from the birth certificate. County District Judge Lynne McGuire ruled on January 27 in Wilson’s favor, writing that Williams “could have pursued a legal remedy to establish parental rights [a confirmatory/second-parent adoption] and she failed to do so and as such, the child is not a child of the marriage.”
Furthermore, 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 wants to establish his parentage in order to deny Williams hers.
After a June 1 hearing to reconsider, McGuire vacated her earlier decision and allowed Williams to remain on the birth certificate, reports Kate Sosin at The 19th. This still does not, however, grant Williams any parental rights, which will be decided at a court date in August.
Wilson also filed a Victim Protection Order against Williams late last year, an order that McGuire has granted, banning Williams from contact with Wilson or their son for five years. Regardless of the allegations underlying that order (which are not available to the public), that is a separate matter from whether she is a legal parent to the child.
The case, as I wrote before, hinges on the question of whether same-sex married couples have the right to the presumption of parentage—the legal idea that any child born within a marriage is presumed to be the child of both spouses. To my (non-lawyer) mind, they do, based on the equal marital rights guaranteed by the 2015 U.S. Supreme Court marriage equality ruling in Obergefell, and its 2017 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. But this is something that is clearly still being played out in courts, and is one of the most pressing legal issues for queer families right now.
In the meantime, I’ll say again what I’ve been saying for years: It’s vital 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 lives in or travels to 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 for a child who is genetically mine.) 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 (such as Voluntary Acknowledgments of Parentage) available in some states 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. We know our families are valid, no matter what paperwork we have—but sometimes the paperwork is a necessary protection for us, and more importantly, our children.