Marriage equality doesn’t guarantee that both parents are automatically recognized as legal parents of their child, even if they are both named on the birth certificate. For example, in North Carolina – and virtually all other states – being named on the birth certificate is only a presumption that the parent is a legal parent. If the person is not biologically related to the child or did not adopt the child then she or he is not a legal parent, except under specific surrogacy situations where a court has signed a parentage judgment.
A legal parent has a right to custody of the child and the right to make all decisions about the child, including about the child’s health and medical care, education and well-being. A legal parent is financially responsible for the child. A non-legal parent does not have any of these rights.
Married same-gender parents are being advised to protect their families by having the non-biological parent do an adoption or get a parentage judgment (if available). According to the National Center for Lesbian Rights: “Regardless of whether you are married or in a civil union or a comprehensive domestic partnership, NCLR always encourages non-biological and non-adoptive parents to get an adoption or parentage judgment, even if you are named on your child’s birth certificate.” NCLR also recommends parents have family protection documents such as medical authorization, guardianship agreements, wills, and advance directives.
It isn’t just same-gender married couples who face this unfair situation. If a DNA test shows the husband in a different-sex married couple is not the biological father, then he has to adopt the child to become a legal parent, even if his name was already on the birth certificate.