Hawaii Supreme Court must affirm equality of same-sex parents.

The Hawaii Supreme Court Must Affirm the Equality of Same-Sex Parents

The Hawaii Supreme Court Must Affirm the Equality of Same-Sex Parents

Outward has moved! You can find new stories here.
Outward
Expanding the LGBTQ Conversation
Dec. 14 2017 2:33 PM

The Hawaii Supreme Court Must Affirm the Equality of Same-Sex Parents

5460313835_6c4f8174d7_z
The Hawaii Supreme Court

Dustin P. Smith/Flickr

On Thursday, the Hawaii Supreme Court will hear arguments in a significant LGBTQ rights case—a first of its kind—that applies marriage equality to legal parenthood. At the heart of the litigation is a question of what makes a parent. The Hawaii justices will have to decide whether a married lesbian can escape parental responsibilities toward the child to whom her then-wife gave birth. To uphold LGBTQ equality, the justices should rule that parental obligations attach equally to same-sex and opposite-sex spouses.

The couple, C.C. and D.D., married in Washington, D.C., in 2013. Shortly thereafter, the two women moved to Hawaii, where C.C. had been called on military orders. During the course of their marriage, they considered having a child together. While C.C. was deployed between January and September 2015, D.D. sought out a sperm donor and became pregnant. A month after C.C.’s return from deployment, she filed for divorce. The child was born before the divorce’s finalization.

Advertisement

As a general principle in family law, when a married woman gives birth to a child, the birth mother and her spouse are presumed to be the child’s parents. The biological relationship of her spouse to the child is irrelevant. This is true of a same-sex couple or a married heterosexual couple. If a birth mother is married to a man at either the time the child was conceived or between conception and birth, her husband’s name is placed on the child’s birth certificate. The presumption of parentage does not necessarily mean he is the biological father. Indeed, presumptive paternity requires no evidence that her husband is the biological father.

The theory behind this presumption is that it advances children’s best interests, keeps children off public assistance, and promotes stronger families. The presumption, however, is rebuttable if the nonbirth parent shows clear and convincing evidence that parental rights should not be imputed on them. In the context of opposite-sex couples, the presumption can be overcome with proof that the husband was away from the wife during the time of conception; that the husband is infertile, sterile, or impotent; or that the couple did not have sexual relations.

C.C. does not wish to be a legal parent of D.D.’s child. In family court, C.C. argued that the presumption of parentage should not apply to her because she is not capable of having a biological relationship to the child D.D. gave birth to. The family court denied C.C.’s petition to sever her parental obligations, ruling that Hawaii’s Uniform Parentage Act and Marriage Equality Act presumes that a legal spouse of a woman who gives birth to a child is the parent of that child. The spouse’s gender is irrelevant. The family court also determined C.C. had insufficient evidence to overturn her status as a parent and, as a consequence, her parental obligations.

While state courts have been asked to sort out the rights of same-sex parents before, this one stands out as unusual. Typically, these cases arise from petitioners who want to establish parental rights over the objections of their former spouses and partners. In recent months, state courts in Vermont, New York, and Arizona have ruled in favor of the estranged same-sex partner who raised children with their former partner. Here, though, C.C. wants to avoid the obligations of parenthood.

While C.C. should be able to offer evidence to the court to rebut the strong presumption that she and D.D. are both the child’s parents, the Hawaii Supreme Court should reject C.C.’s argument that the standards of presumed parentage do not apply to same-sex couples. To adopt C.C.’s position is to undermine the basic tenets of family law and the equal status of marriage between opposite-sex and same-sex couples. C.C.’s theory is at odds with the constitutional command of Obergefell v. Hodges that states cannot impose different terms and conditions on civil marriage between same-sex and opposite-sex couples. The Supreme Court reinforced this principle in Pavan v. Smith, in which the Supreme Court required Arkansas officials to place a birth mother’s same-sex spouse on her child’s birth certificate by default as they would with opposite-sex couples, consistent with the marital presumption of parentage.

Same-sex couples’ freedom to marry advanced equal rights for all LGBTQ people, but equality does not only mean equal privileges and benefits: With equal rights come equal obligations and responsibilities.

Anthony Michael Kreis is a visiting assistant professor of law at the Illinois Institute of Technology’s Chicago-Kent College of Law.