On Thursday, the Supreme Court of Hawaii heard oral arguments in the case of C.C. v. D.D., a case involving a custody dispute between ex-partners that threatens to undermine the Supreme Court’s decision legalizing marriage equality.
The case involves a lesbian couple, C.C. and D.D., who were married in 2013 and talked about raising a family together.
After D.D. became pregnant in 2015 through artificial insemination using an anonymous sperm donor, the couple’s marriage fell apart. C.C. then sought a court ruling that would exempt her from being recognized as the child’s legal parent and having to pay child support.
But a lower court held that C.C. was a legal parent and was required to pay child support, even though she has no biological ties to the child.
The court found that Hawaii’s marital presumption of parentage law — where a non-biological partner married to a biological parent is recognized, for legal purposes, as a parent of the children they raise together — applies to same-sex couples just as much as it does for opposite-sex couples.
C.C. then appealed the lower court’s decision to the Intermediate Court of Appeals of the State of Hawaii before requesting that the case be transferred to the state Supreme Court.
Both Lambda Legal, which is representing D.D., and the state of Hawaii have filed legal briefs with the court arguing that the justices should uphold the lower court’s decision recognizing C.C.’s parental rights and responsibilities.
“Equal rights come with equal responsibilities,” Peter Renn, a senior attorney for Lambda Legal, said in a statement. “Like other married couples, same-sex spouses can walk away from each other, but not from their obligations to their children.
“Obergefell, the ruling that made marriage equality the law of the land, guarantees marriage on equal terms for same-sex couples and their children,” Renn added. “Families are formed in different ways but the same rule applies: when a married couple decides to bring a child into this world, that child has two legal parents, regardless of their gender. A non-biological parent can’t invoke biology as a shield to evade parental responsibilities, just as a biological parent can’t wield biology as a sword to cut off a non-biological parent’s rights.”
If the Hawaii Supreme Court rules in favor of C.C., it would constitute a direct challenge to two Supreme Court decisions: the Obergefell decision legalizing marriage equality, and the Pavan v. Smith decision finding that states had to list both same-sex spouses on a child’s birth certificate. In both of those cases, the U.S. Supreme Court found that the same rights and responsibilities extended to heterosexual couples have to be extended to couples in same-sex relationships.
“As the U.S. Supreme Court recently made clear, there is no skim-milk marriage; marriage is marriage — for everyone,” Renn said.
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