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Suppose a married woman has a child whose biological father is someone other than her spouse (e.g. due to an affair, rape, or because she is in a same-sex marriage), but she and her spouse want the legal rights and responsibilities of parenthood.

Who gets listed on the birth certificate as the baby's father/second parent? The biological father, or the mother's spouse? (I assume that it's possible for someone other than the biological father to be a legal parent from the moment of birth without needing to adopt the baby, but please correct me if I'm wrong.) What if the mother is unmarried?

Also, does the mother have any degree of choice in the matter of whom to list as the father or second parent on the birth certificate, or the second parent on the birth certificate specified by law? If the latter, is it illegal for the mother to deliberately misrepresent the second parent's identity, and are there penalties for doing so?

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The birth certificate lists the legal parents (or only the mother, if a second legal parent is not established at the time of birth).

The rules about how to establish legal parentage and how to fill out a birth certificate are a matter of state law, so to maintain a workable scope, this answer will mainly address the situation in .

Another note is that as far as I can tell, legal parentage is not officially defined by who happens to get put on the birth certificate (i.e. if for some reason the birth certificate was filled out in an invalid manner, I think it would not affect the child's actual legal parentage—although it might generate confusion about what this is). It seems instead that the birth certificate is supposed to be filled out in such a way so that it accurately documents as parents only individuals who have already been established to be legal parents of the child.

Legal parentage can be established:

  • by giving birth (for the mother)

  • by being married to the person giving birth, as well as some similar situations that establish a presumption of parenthood

  • by both the mother and the second parent signing a form called a voluntary declaration of parentage. But it seems that a voluntary declaration of parentage can only be signed under certain conditions, which do not seem to be met in the scenarios listed in the first paragraph of the question.

In cases where neither marriage nor a voluntary declaration of parentage are available to establish parentage, it seems it might be necessary to get a court judgement in order to get the birth certificate amended at a later date than the date of birth (or, depending on the circumstances, to carry out an adoption).

(I found a guide "Parentage in California".)

There appears to be no way for the biological father to be listed on the birth certificate at birth if the mother is married to someone else

At the time of birth, a biological father not married to the mother can be listed on the birth certificate only if both the mother and biological father sign a voluntary declaration of parentage. Furthermore, per FAM §7573, it appears that a voluntary declaration of parentage cannot be validly signed if the mother is already married, unless the child was conceived through assisted reproduction.

In the case of a child conceived through assisted reproduction, there is explicit allowance in law for the birth mother and intended second parent to put the intended second parent's name on the birth certificate if both the mother and intended second parent provide written consent. For more details on the conditions to be eligible for this, see ESTABLISHING LEGAL PARENTAGE from California Child Support Services. It looks like, while this does not require the mother to be unmarried, and does not require the intended parents to be married to each other, it it might not be possible if the intended mother is married to someone other than the second intended parent. (I find the wording of the statue a little hard to parse, but CCSS says "You are NOT ELIGIBLE when your situation includes: [...] Someone else was married to and living with the birth parent at the time of conception and birth of this child; or this child was born during that marriage or within 300 days of the end of that marriage.")

You can see a copy of a VDOP form here which includes an outline of the ways legal parentage is established.

The spouse of a married mother is presumed to be the second parent, without need for adoption. In California, this applies regardless of the gender of the spouse.

In the case of a child conceived through some way other than assisted reproduction to a married mother, it seems that the legal presumption is that the spouse is the second parent. This was discussed previously on the site in the case of a husband (Paternity of non-marital children, Is it likely to win back child support from biological father of a child whose conception was result of extramarital affair?). Based on the results of my tentative research (below), it seems like a wife of the mother would be equally as eligible as a husband to be the presumed natural parent of a child in California, but as of 2016, this presumption was possibly not clearly established to be available to a female spouse in all states. The California parental presumption statute uses the gender-neutral wording "A person is presumed to be the natural parent of a child if..." and the term 'natural parent' is defined at §7601 as "a nonadoptive parent established under this part, whether biologically related to the child or not."

I found a blog post ("After Obergefell: Parental Presumption", Malinda, Adoption Law Prof Blog, Wednesday, June 1, 2016) that links to a (paywalled) ABA Journal article with the following relevant quotes summarizing the nationwide situation at the time:

In most states, parentage presumptions flow from the woman who gives birth to a child, with her husband presumed to be the child’s legal father.

[Douglas] NeJaime contends that the marital parentage presumption is currently the biggest unresolved issue stemming from Obergefell. “In states like California, Massachusetts and others, it’s clear the presumption does apply,” he says. “It had also been litigated in some states like Iowa before Obergefell. But in a lot of other states, where state governments are relatively hostile to same-sex marriage, they’re refusing to apply those presumptions to same-sex couples. They’re refusing to issue birth certificates that list both women as parents. That’s happened in Arkansas, Florida, Indiana and Wisconsin.”

That same-sex couples should get identical parentage presumptions as those of opposite-sex couples seems to NeJaime a “clear and natural result” of Obergefell. But he admits the question is complicated because courts have for decades grappled with determining whether parentage is a function of biology or who’s actually parenting a child. Statutes don’t help when they include terms such as natural father or biological father.

"Does that mean what it says?” asks NeJaime. "In California, courts have said natural parent means legal parent. In other states, natural means biological."

("After Obergefell: How the Supreme Court ruling on same-sex marriage has affected other areas of law", by G. M. Filisko, JUNE 1, 2016, 4:00 AM CDT)

This is obviously a fast-moving area of law so I'm not sure if some of the above is out of date.

Also, here is an article I found that seems to adress this topic: The Evolution of the "Second Parent"

Relevant California statutes

HEALTH AND SAFETY CODE - HSC DIVISION 102. VITAL RECORDS AND HEALTH STATISTICS [102100 - 103925] PART 1. VITAL RECORDS [102100 - 103800] CHAPTER 3. Live Birth Registration [102400 - 102520] ARTICLE 2. Content of Certificate of Live Birth [102425 - 102475]

(C) If the parents are not married to each other, the name of the person identified by the woman giving birth as either the only possible genetic parent other than the woman giving birth or the intended parent of a child conceived through assisted reproduction shall not be listed on the birth certificate unless the woman who gave birth to the child and either the only possible genetic parent other than the woman who gave birth or the intended parent of a child conceived through assisted reproduction sign a voluntary declaration of parentage at the hospital before the birth certificate is submitted for registration. The birth certificate may be amended to add another parent’s name at a later date only if parentage for the child has been established by a judgment of a court of competent jurisdiction or by the filing of a voluntary declaration of parentage.

FAMILY CODE - FAM DIVISION 12. PARENT AND CHILD RELATIONSHIP [7500 - 7962] ( Division 12 enacted by Stats. 1992, Ch. 162, Sec. 10. )
PART 2. PRESUMPTION CONCERNING CHILD OF MARRIAGE AND GENETIC TESTING TO DETERMINE PARENTAGE [7540 - 7581] ( Heading of Part 2 amended by Stats. 2018, Ch. 876, Sec. 3. )

7573 (a) The following persons may sign a voluntary declaration of parentage to establish the parentage of the child: (1) An unmarried woman who gave birth to the child and another person who is a genetic parent.

(2) A married or unmarried woman who gave birth to the child and another person who is a parent under Section 7613 of a child conceived through assisted reproduction.

[...

(d) Except as provided in Sections 7573.5, 7575, 7576, 7577, and 7580, a completed voluntary declaration of parentage that complies with this chapter and that has been filed with the Department of Child Support Services is equivalent to a judgment of parentage of the child and confers on the declarant all rights and duties of a parent.

FAMILY CODE - FAM DIVISION 12. PARENT AND CHILD RELATIONSHIP [7500 - 7962] PART 3. UNIFORM PARENTAGE ACT [7600 - 7730] CHAPTER 2. Establishing Parent and Child Relationship [7610 - 7614]

A person is presumed to be the natural parent of a child if the person meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:

(a) The presumed parent and the child’s natural mother are, or have been, married to each other and the child is born during the marriage [...]

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  • As a practical matter the hospital asks the mother what the name of the baby is and who is the father. Later, the parents, sometimes only one, can apply for a correction to the birth certificate. Commented Dec 6, 2023 at 5:09
  • @DavidSmith: I don't know about how it's enforced, but per the law in California, the birth certificate should not list the father's name unless he is either married to the mother or both parents sign a Declaration of Paternity form. Sutter Health and this CDPH guide say the same.
    – herisson
    Commented Dec 6, 2023 at 5:19

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