The Hawaii Supreme Court has ruled that an unmarried woman who is not a biological parent can still be declared a legal parent to the child she “held out” as her own after starting a family with her former partner. This overturns a lower court ruling that had said only unmarried men could establish parentage that way.
The Family Story
Bailey and Ava, who lived in O‘ahu, had been together for more than 12 years when they started to plan their family, with Bailey carrying the child and Ava’s cousin Connor as the sperm donor, per documents in the case (JK v. HK). Connor understood that he would not be the child’s parent. When the child, Kai, was born in December 2022, the two women gave Kai a hyphenated last name. They shared parenting responsibilities, including making medical decisions for Kai, who called Ava “Dada.” Ava was not listed on Kai’s birth certificate, however, and never adopted Kai.
In the fall of 2023, the women separated. Kai lived with Bailey, but Ava continued to visit; Bailey would also bring Kai to visit Ava. After Bailey moved in with a new partner, however, she began restricting Ava’s time with Kai. Ava then petitioned in family court to be named a legal parent and have joint legal and physical custody; alternatively, she sought to be named a de facto parent (someone who has acted as a parent for a substantial period of time, but isn’t a legal parent). The family court said she was a de facto parent, and granted her temporary visitation.
Bailey, however, “did not follow the temporary visitation schedule or facilitate video calls between Ava and Kai as ordered by the family court.” She then moved with Kai to Indiana, without informing Ava or the family court. Ava contacted the Honolulu Police Department, who refused to enforce the visitation order, saying that Ava did not have parental rights. Ava then tried to get the family court to uphold the visitation order and have Kai return to Hawaii. Even though Bailey never showed up in court, the court ruled against Ava, saying she was not Kai’s legal parent. She appealed, with the help of the ACLU of Hawaii.
The Ruling
The Hawaii Supreme Court then ruled at the end of May in favor of maintaining Kai and Ava’s relationship, overturning the family court decision. Let’s look at their reasoning, which sheds light on important parts of parentage law.
Hawaii’s parentage laws are based on the Uniform Parentage Act (UPA), model legislation developed by a bipartisan commission of legal experts and implemented by many states. At the time of the family court’s decision, the state was using the 1973 version of the UPA as the basis for its statutes. Because the family court had found that Ava had “held out the child as her own” by “act[ing] as Kai’s parent and provid[ing] Kai with food, shelter, education, and ordinary medical care,” the higher court concluded that “Ava is a presumptive parent under the 1973 UPA’s holding out presumption.”
That presumption says, “A man is presumed to be the natural father of a child if[?] ..? [w]hile the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child[.]” The family court had interpreted this to apply only to men; the state Supreme Court, however, ruled that although it does not use gender-neutral language, it must be interpreted in a gender-neutral way, based on previous cases in Hawaii and in line with cases in several other states. Additionally, the court wrote, the presumption applies “regardless of marital status and biological connection.”
“We agree with Ava that the family court erred when it ruled she could not be the child’s parent as a matter of law because she is a woman who is neither married to Bailey nor is Kai’s biological mother,” the higher court wrote.
Furthermore, although Hawaii law was based on the 1973 version of the UPA when the family’s case began, Hawaii adopted the 2017 UPA during the course of the case. The court noted that this updated version, a sign of how the state legislature intends parentage laws to be, further clarified that the language of the UPA, even the older versions, should be applied in a gender-neutral way.
The result of the ruling means that Ava can now go back to family court in order to establish her parentage and address her custody and visitation requests.
Takeaways
The ruling is a clear victory that will help children maintain the protections of and relationships with their parents, regardless of the parents’ marital status or biological connection.
It bears repeating, though, that all of the LGBTQ family law experts I’ve spoken with advise that non-genetic or non-gestational queer parents should take extra steps (such as a co-parent adoption) to secure their parentage, even if they are married and on their child’s birth certificate; this is even more important if they are not. Yes, in this case the court found that Ava was a legal parent anyway—and the court documents don’t tell us why Ava never sought a co-parent adoption, so we shouldn’t chastise her—but if you are a non-genetic or non-gestational parent, please consider securing your parentage as much as you can, to help avoid potential headaches and heartaches in the future. (See this FAQ from GLAD Law and myself for more on this.)
The case also reminds us why it’s a good idea for states to update their parentage laws in line with the 2017 UPA. Even though in this case, the Hawaii Supreme Court found that the 1973 UPA still supported Ava’s claim, the 2017 UPA offers clearer, gender-neutral language and expanded protections for children in all types of families, including LGBTQ families and others formed via assisted reproduction.
In June, Delaware became the latest state of more than a dozen to enact comprehensive legislation based on or substantially similar to the 2017 UPA. Additionally, New Hampshire and New York have comprehensive parentage legislation that is not based on the UPA, per the Movement Advancement Project. (See my interview with Polly Crozier, director of family advocacy at GLAD Law, for a look at the progress in parentage laws made last year, and my 2024 interview with Crozier and Stephanie Jones, founder of the Michigan Fertility Alliance (MFA), about the broad coalition of family advocates that helped Michigan successfully update its parentage laws.)
Hawaii, of course, not only updated its parentage laws, but in this ruling, found that even under prior laws, someone who held themselves out to be a parent is a parent, irrespective of gender or marital status. Such reasoning will help keep children connected to and protected by the parents who love them.