Hawaii Supreme Court Allows Gay Dad to Seek Custody as De Facto Parent

The five members of the Hawaii Supreme Court unanimously ruled on November 3 in A.A. v. B.B., 2016 Haw. LEXIS 280, that a gay dad can seek joint custody of the kids that were adopted by his partner during their relationship and who he helped to raise. The opinion by Justice Richard W. Pollack reversed a trial judge’s ruling that a “de facto” parent had to prove that there was a compelling state interest to justify letting the court use the “de facto” provision of the family law statute in order to overcome the adoptive parent’s rights.


Justice Pollack identified the parties by initials in his opinion for the court. A.A. and B.B. began their relationship in March 2009 and concluded it in October 2013.  The child, a girl, was born in 2011.  B.B. is the biological grandfather of the child, according to Judge Pollack, and they decided that B.B. would adopt the child.  A.A. and B.B. jointly made a decision to raise the child together.  They lived together with the child and B.B.’s teenage son from March 2009 through October 2013.  They jointly decided on the child’s name and until they split up they shared parenting responsibilities.  The child called A.A. “Daddy” and B.B. “Papa.”  They planned to have A.A. also adopt the child, but that plan was never completed.


After A.A. and B.B. separated, they made a written co-parenting agreement, dividing up residential custody on specified days of the week. B.B. sent an email to A.A. stating that if anything ever happened to him he wanted A.A. to have custody of the child.  However, in April 2014 B.B. sent a letter to A.A. stating that the agreement was “revoked, as this was B.B.’s parental right.”


A.A. went to court seeking joint custody, alleging that he met the statutory requirement of being wholesome and fit to raise the child. Indeed, A.A. argued that he had “de facto” joint custody based on his role and relationship with the child, as well as the “stable and wholesome” home he could provide.  The relevant statute provides that “Custody may be awarded to persons other than the father or mother whenever the award services the best interest of the child.  Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody.”


During a custody hearing, B.B.’s expert witness testified about psychological and developmental problems concerning B.B.’s son and the son’s interactions with A.A., and B.B.’s counsel raised hypothetical questions about “anger management” problems for A.A., which were objected to. This doctor testified that she “would have concerns about Child having a relationship with A.A.,” and that she didn’t think the Child would be harmed by termination of her relationship with A.A.


On the other hand, an expert witness offered by A.A. testified favorably about A.A. as a parent and the home he provided for the Child, and opined that termination of the Child’s relationship with A.A. “would result in immediate-term and long-term damaging psychological consequences to the child. This expert also testified the while he was aware of sex abuse allegations involving A.A., he did not believe that A.A. posed a threat of abuse to the Child, “be it sexual, physical or emotional abuse or neglect.”

The trial judge concluded that A.A. did not have standing as the Child’s “psychological parent” to seek custody because the parties had not married, even though same-sex marriage had become available in Hawaii prior to the termination of their relationship. Although the judge concluded that the statutory provision on third party de facto parents could apply to the case, it concluded that A.A. failed to demonstrate “by strict scrutiny a compelling state interest as to why this ‘de facto’ section should apply to him when in fact the parties were not married, and when the options of civil union or marriage were unavailable.”


The Supreme Court concluded unanimously that the trial judge had misapplied the statute. Although A.A.’s evidence addressed all the factors spelled out in the statute for deciding whether a de facto parent was entitled to a custody award, the trail court made no explicit determination whether A.A. had satisfied those factors.  The court held that the trial judge incorrectly placed a burden on A.A. to demonstrate the constitutionality of the de facto parent provision, apparently based on a misinterpretation of Troxel v. Granville, a 2000 U.S. Supreme Court ruling striking down a state law that opened up the possibility of third party custody to any adult who could satisfy a court that it was in a  child’s interest to award custody to the third party, regardless of objections by a child’s legal parent.


The Supreme Court has ruled that natural or adoptive parents do have constitutional due process rights, liberty interests, regarding their right to raise their children without undue state interference. In Troxel, a mother whose ex-husband had committed suicide was fending off an attempt by her late husband’s parents to obtain court-ordered trial visitation, when the mother wanted to retain control over when and how the grandparents would have contact.  The Supreme Court struck down the state law in that case as “breathtakingly broad” and inadequately protecting the rights of the child’s legal parent.


Justice Pollack wrote that this case does not directly implicate the issues decided by the Supreme Court in Troxel. After engaging in an extended discussion of the Troxel decision and of subsequent Hawaii cases, the court concluded that this case, involving a de facto parent, presented different issues.  “In this case, B.B. voluntarily allowed A.A. to share physical custody of Child in addition to sharing the duties and responsibilities for parenting child, and thus the circumstances do not implicate the Hawai’I Constitution’s right to privacy” as was implicated in cases like Troxel and similar Hawaii cases involving custody or visitation claims by grandparents.


The court rejected any argument by B.B. that the state’s de facto parent custody statute was unconstitutional, or that A.A. could not seek joint custody without proving the constitutionality of that statute.   Wrote Pollack, “because B.B. permitted A.A. to share physical custody of Child in addition to the parenting responsibilities and duties with regard to Child, B.B. does not have a protected privacy interest in excluding A.A. from Child’s life under the Due Process Clause of the 14th Amendment or the Hawai’i Constitution’s due process and privacy protections.  As such, B.B. has not demonstrated that the application of the [de facto parent statute] under the circumstances of this case would implicate his parental rights protected under the federal or Hawai’i constitutions.”


Turning to the facts of this case, the court said that the “de facto presumption” of custody created by the state would apply “when the nonparent custodian is able to demonstrate that he or she (1) has had ‘de facto custody’ of the child (2) in a stable and wholesome home and that (3) the custodian is a fit and proper person.”


As the court found that the family court “misapprehended the law” and that “the plain language. . . contemplates standing to seek custody when a person has had ‘de facto custody’ of a child and meets the other requirements,” the case had to be sent back to the family court, with A.A.’s standing to seek custody established, so that the court could make a determine whether it would be in the best interest of the child to award joint custody to A.A.


A.A. was represented by Michael S. Zola. B.B. was represented by Brian J. De Lime, Francis R. Alcain, and Justin P. Haspe.



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