Last month a district court judge in Iowa ruled that both members of a same-sex marriage should be shown as the parents on the birth certificate of their two-year-old daughter. You can read more about the case in this Des Moines Register article. (Update: the Branstad administration is appealing the ruling.)
This was not a tax case but it does have tax implications. If both partners/spouses are the legal parents of a child, then the parents can decide between themselves who claims the tax dependency exemption for the child.
Let me repeat that: the parents can decide between themselves which one of them claims the tax dependency exemption. There is no income test that has to be met unless both parents claim the same child on their separate tax returns. Claiming the same child will trigger an audit and the IRS will award the dependency exemption to the parent with the higher income.
There are a host of other situations where tiebreaker rules come into play. William Perez at About.com has a great breakdown here.
But we can cut to the chase and say again — a same-sex couple that lives together all year can — if they are both the legal parents* of the child — decide between themselves who claims the child.
*-Legal parent under Section 152 of the Internal Revenue Code means your child by blood, adoption, or a step-child. Foster children count, too. I’ll have a further discussion of the term “step-child” for same-sex couples in a future article.