By Attorney Max Stephenson

Same-sex marriage became legal in Wisconsin in October 2014. Same-sex marriage became legal nationwide in June 2015 with the U.S. Supreme Court case of Obergefell v. Hodges. However, it may come as a surprise to LGBTQ families that same-sex parents are advised to get a court order confirming both parents’ parental rights.

A number of U.S. Supreme Court judgments have provided rights to LGBTQ parents nationwide. For example, Pavan v. Smith gave both parents the right to have their names (either as “mother/father” or “parent/parent”) on the birth certificate of their child, whether the child was adopted or conceived through artificial insemination or by one of the parents.  In the U.S. Supreme Court, cases including Obergefell and Pavan have mandated that all states must extend the same rights and benefits to same-sex married couples that are extended to opposite-sex married couples, including recognizing a non-gestational parent as a legal parent.

With all of these decisions protecting the rights of parents, why then are LGBTQ couples strongly encouraged to file a court order establishing themselves as parents? This is because of a clause in the U.S. Constitution referred to as “portability of judgment.”

Freedom to Move About the Country

As a family, you want to be able to travel freely outside of Wisconsin and be assured that your joint parentage will be recognized wherever you go. Unfortunately, a birth certificate does not provide this assurance, since it is considered a self-reported record. This means it is an “indication” of parentage, but it is not considered solid legal proof, and therefore, does not meet the Full Faith and Credit criteria. 

Full Faith and Credit refers to the first sentence of Article IV, Section 1, of the U.S. Constitution: “Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The clause was intended to ensure continuity among the states, but to receive Full Faith and Credit, you must have a court order.

Is There a Double Standard?
Different-sex couples are rarely advised to get a court order to prove parentage, which would imply that same-sex couples do not need one either, especially given the recognition of same-sex marriages at the federal level. Moreover, when a legally married opposite-sex couple has a child, they are both automatically presumed to be the legal parents of the child. If a couple gets divorced, they both remain legal parents unless parentage is terminated by a court.

This is presumed to be the case for same-sex couples with children born after same-sex marriage was legalized. However, the operative word here is “presumed.” Most states have not addressed this issue directly. In some cases, the legal parentage may be uncertain for children who were born or adopted by same-sex couples before same-sex marriage or civil union rights were recognized. For this reason, whether you are married or in a civil union or domestic partnership, non-biological and non-adoptive parents are encouraged to legally adopt a child or obtain a parentage court order, even if you are named on your child’s birth certificate.

Contact a Milwaukee LGBTQ Family Law Attorney

At Gimbel, Reilly, Guerin & Brown, LLP, we believe that nothing is more important than family, and our attorneys are experienced in protecting LGBTQ family rights. We can help you obtain a court order recognizing you as your child’s legal parent. If you are adopting a child, getting married, or considering divorce, and you are unsure about your rights, contact our Milwaukee family law firm today at 414-271-1440.