The Hawaii Supreme Court recently ruled that a woman in a same-sex relationship can establish legal parentage over a child, even if she is not the biological mother. This decision arose from the case of JK v. HK (SCAP-24-0000673), which involved a dispute over custody and visitation rights following the separation of two women who had a child together. The ruling is significant as it clarifies the application of parentage laws in Hawaii, particularly for same-sex couples.
The case began when JK, referred to as Ava, filed a petition in family court seeking to establish her legal parentage of her child, Kai, whom she had raised with HK, referred to as Bailey. After the couple separated, Bailey began restricting Ava's visitation rights, prompting Ava to seek legal recognition as a parent. The family court initially ruled against Ava, stating that she could not be recognized as a legal parent under existing laws. This led Ava to appeal the ruling.
Background
Ava and Bailey were in a long-term relationship for over twelve years and decided to start a family together. They agreed that Bailey would carry the child, and they used Ava's cousin as a sperm donor. Kai was born on December 13, 2022, and Ava played an active role in Kai's early life, holding herself out as a parent. However, after their separation in October 2023, Bailey moved with Kai to Hawaii Island and began limiting Ava's time with the child.
In May 2024, Ava filed an amended petition in the family court to establish her legal parentage and sought joint custody. The family court acknowledged that Ava had acted as a parent but ultimately ruled that she could not be recognized as a legal parent due to the interpretation of Hawaii's parentage laws. The court's decision was based on the belief that the laws only recognized biological mothers or married couples as legal parents.
The Ruling
The Hawaii Supreme Court, in its ruling on May 18, 2026, found that the family court had erred in its interpretation of the law. The court stated, "We hold that the language and intent of the 1973 UPA, which governed at the time of the family court’s ruling, allowed a mother and child relationship to be established through the same methods applicable to the father and child relationship 'insofar as practicable.'" This ruling emphasized that the holding out presumption of parentage could apply to Ava's situation, despite her not being the biological mother.
The court determined that Ava had indeed held Kai out as her own child and had provided care and support for him. The ruling vacated the family court's previous findings and remanded the case for further proceedings to establish Ava's legal parentage and address custody and visitation rights. The justices involved in the ruling included Chief Justice Devens and Justices McKenna, Eddins, Ginoza, and Circuit Judge Malinao, who was assigned due to a vacancy.
Impact
This ruling has significant implications for same-sex couples in Hawaii and potentially sets a precedent for how parentage is determined in similar cases. It reinforces the idea that legal parentage can be established through actions and relationships, rather than solely through biological connections. This decision may encourage more inclusive interpretations of parentage laws, ensuring that children raised in same-sex households have legal recognition for all parents involved.
The ruling also highlights the importance of protecting the rights of non-biological parents, particularly in situations where they have played an active role in the child's life. By recognizing Ava's status as a presumptive parent, the court has paved the way for more equitable treatment of all families, regardless of their structure.
What's Next
The family court will now proceed with establishing Ava's legal parentage and addressing her custody and visitation requests. This ruling can be appealed, but it sets a strong foundation for recognizing the rights of same-sex parents in Hawaii. As the legal landscape continues to evolve, this case may influence future rulings and legislation regarding parentage and family rights.