Throughout my career I have encountered several situations like this: Woman gets pregnant and then she marries - not the father of the child. And thanks to SCOTUS, now she may be getting married not to a father, but to another mother. Anyway..there is a temptation to place the new spouse's name on the birth certificate, even though she knows he/she is not biologically the other parent. Is that legal? Yes. A spouse of a woman who gives birth is considered a legal parent in Florida. Parentage is presumed (pay attention to that word, its significance will come up again shortly) based upon the marriage. We lawyers call this the "marital presumption" law.
This woman's child may go through their entire life happily with the other (legal) parent listed on the birth certificate, legitimizing the parent's role and authority over the child, without incident. However, there is a big "but" coming. The name of a parent listed on the birth certificate creates a presumption of parentage which is rebuttable. In other words, it can be challenged. How, you ask? The birth certificate is a document issued through an administrative process based on how questions were filled out on a questionnaire. The birth certificate is not a court order. Birth certificate parentage is based on the relationship between the spouses only, and not the relationship (i.e,. no biological connection required) between the parent and the child. Birth certificate-based parentage can be challenged in court, and there are several cases out there where this has happened. Birth certificate-based parentage might not be recognized by all judges in all courts. The birth certificate process does not require (or insure) the termination of the actual biological father (sperm donor)'s rights. And birth certificate-based parentage has been held not to be an adequate basis for passing an inheritance by intestate laws, for a child qualifying for social security benefits, and possibly for claiming the child as a dependent under the tax code.
What does this mean for the woman, the child, and most importantly, the spouse of the woman who is listed as the other legal parent? The law on this issue is more complex than can be fully explored in this short article. But the bottom line is: To be absolutely sure that the non-biological legal parent's rights to be a parent to this child are not later challenged (for instance in a later divorce proceeding, paternity action filing, or contested probate), he or she might want to consider filing a confirming adoption proceeding. A judgment of adoption is final and binding and entitled to full faith and credit in all 50 states, and in most countries around the world who have treaty relationships with the USA.
For more information on how and when to file a confirming adoption proceeding (step-parent adoption or second-parent adoption) or a determination of legal parentage case, please contact Mary Greenwood at Brandon Family Law Center, LLC.