Navigating Same-sex Parentage Cases
| Jurisdiction | Kansas,United States |
| Citation | Vol. 91 No. 3 Pg. 42 |
| Pages | 42 |
| Publication year | 2022 |
Nontraditional Family Law
By Valerie Moore
Historically, various state and federal laws and regulations precluded same-sex couples who lived in a committed marriage-like relationship from reaping the legal (and social) benefits that come from the status of being labeled "married." Kansas statutes still reference marriage as only being between "two parties who are of opposite sex"[1] and include provisions that "it is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.[2]
Notwithstanding the law of marriage, the reality was that same-sex couples had been making lives together for years: cohabitating, owning property, having and raising children, dying, and, of course, breaking up. Family law attorneys were creative in drafting "partnership agreements," "co-parenting agreements" and "co-habitation agreements" to end-run the marriage laws and opt-in to general contract law. Parties could enter into a cohabitation agreement, drafted essentially like a prenuptial agreement with the consideration being mutual promises instead of marriage, and agree upon a division of assets and debts should the parties ever separate. Kansas courts have generally upheld valid contracts: "[c]ontracts are presumed legal and the burden rests on the party challenging the contract to prove it is illegal.[3]" However, the results obtained in enforcing co-parenting agreements were mixed, often resulting in a hodge-podge of enforcement largely dependent on the parties (and court) involved. In re Estate of Shirk[4], provided a framework to enforce a contract:
Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts which are lawful and which contravene none of its rules shall be enforced, and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless injurious to the interests of the public or contravenes some established interest of society (17 C.J.S., Contracts, § 211d, p. 570). Illegality from the standpoint of public policy depends upon the facts and circumstances of a particular case (Stewart v. Fourth Nat'l Bank, 141 Kan. 175, 39 P.2d 918 (1935)), and it is the duty of courts to sustain the legality of contracts where possible (Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 (1950)). There is no presumption that a contract is illegal, and the burden of showing the wrong is upon him who seeks to deny his obligation thereunder. The presumption is in favor of innocence and the taint of wrong is a matter of defense (Mosher v. Kansas Coop Wheat Mkt. Ass'n, 136 Kan. 269, 15 P.2d 421(1932); Okerberg v. Crable, 185 Kan. 211, 341 P.2d 966 (1959)).
While Shirk allows for the enforcement of a contract, In re Guardianship of Williams[5], found "[i]n the absence of an adjudication that a natural parent is unfit to have custody of a child, the parent has the paramount right to custody as opposed to third parties. . .." This "parental preference" statement was further strengthened by the United States Supreme Court's ruling in Troxel v. Granville[6], which struck down a Washington state statute that gave anyone the right to petition the court for child visitation regardless of their legal relationship to the child. The Supreme Court confirmed that parents have a fundamental right to make decisions regarding "the care, custody, and control of their children."[7]
Over time, state laws began to recognize the need to address these "nontraditional" families. In 1996, Bill Clinton signed the Defense of Marriage Act (DOMA) which provided that only heterosexual couples could be granted federal marriage benefits such as the ability to file a joint income tax return, the immigration sponsorship of a spouse, and the ability receive Social Security off of a spouse's record.[8] Some states attempted to pass laws legalizing marriage between homosexual couples, while others remained conflicted and staunchly against it. For example, in 1997, Hawaii was the first state to provide a classification of "domestic partnership" between same-sex couples, but in 1998, Hawaii passed a constitutional ban on same-sex marriage.[9] This is a prime example of the patchwork of laws, which were difficult if not impossible to enforce across state lines. In 2004, Massachusetts became the first state to legalize marriage between same-sex couples.[10] Samesex Kansas couples often married in other states where samesex marriage was legal (such as Iowa) but lived and raised families in Kansas where their marriage was not recognized. The Kansas Constitution was amended in 2005 to specifically state "the marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void."[11]
In June of 2013, the Supreme Court held that DOMA was unconstitutional as violating married, same-sex couples' Fifth Amendment rights to equal protection.[12] Just a few years later, in the landmark case Obergefell v. Hodges,[13] the Court held that the Fourteenth Amendment requires states to recognize legally licensed and performed marriages between same-sex couples in sister states. Interestingly, both cases came to the Court in the context of probate, though they are renowned for legalizing same-sex marriage in all 50 states.
These decisions are landmarks, regardless of individual politics. In 2012 (pre-Obergefell), the U.S. Census reported approximately 639,440 co-habiting same-sex couples in the United States.[14] In 2020, seven years after the ruling, the U.S. Census reported that there were 568,110 married same-sex couples in the country as well as 412,166 co-habiting samesex couples.[15] The ruling in Obergefell provided the ability for gay and lesbian couples to formalize their relationships -should they so choose.
With that legal protection, they could also now divorce one another. With divorce comes the ability for the Court to order the division of jointly held assets and make provisions for the children of the parties. But what of the couples that did not or could not marry before they created a family?
Frazier v. Goudschaal: the "original" Kansas same-sex parentage case
Children born out of wedlock are not a new phenomenon. There exists at common law, a strong preference for children born of a marriage. Property rights went to the first born and a bastard child had little or no recourse to request any financial compensation from a biological parent. Over time, the stigma to children born out of wedlock has decreased and there has been a sharp increase in the number of children born to unmarried parents. A Pew Research Center article from April of 2017 states:
As marriage rates have fallen, the number of U.S. adults in cohabiting relationships has continued to climb, reaching about 18 million in 2016. This is up 29% since 2007, when 14 million adults were cohabiting, according to U.S. Census Bureau data. Roughly half of cohabiters - those living with an unmarried partner - are younger than 35.[16]
The Kansas Parentage Act (KPA), K.S.A. 23-2201 et. seq., sought to establish a framework for establishing parentage (and therefore financial support and parenting time) for children born not of a legal marriage. Under the KPA there are six ways that a parent can establish a presumption of parentage: (1) Biology, (2) Adoption, (3) Marriage, (4) Support order, (5) Acknowledgement, or (6) Contract. As, generally, a same-sex partner cannot establish parentage via biology, same-sex parentage cases tend to focus on the other presumptions contained within the KPA.
For example, if the parents are married to one another, adoption requires both spouses' consent.[17] If, however, the parents are not married to one another, one parent "adopting" the child of the other party is not available as a means to formalize parentage of the child or children:
We are aware that several courts around the country have recognized what has been called a "second-parent" adoption. A second-parent adoption is when an unmarried partner is permitted to adopt the biological or legal child of the parent without requiring the parent to relinquish any parental rights, so long as the parent consents to the adoption. Generally, unlike here, these adoptions involve persons in a committed relationship at the time of the adoption. Courts that have recognized second-parent adoptions either do so by specific statutory authority or by broad judicial interpretation of existing statutes. Again, lacking any clear statutory authority in Kansas to allow J .M. to adopt I.M. while allowing Mother to retain her parental rights, we are not inclined to judicially create such authority.[18]
Marriage (or attempted marriage) is a means to create a presumption of parentage (K.S.A. 23-2208); however, being married does not conclusively establish parentage if another party exists (perhaps a "known" sperm donor) that may also assert a presumption of parentage. For example, if the child was conceived through "semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman" the marriage between partners would be sufficient to establish the only presumption of parentage (K.S.A. 23-2208(f)). However, if the parties used a friend or bought some semen on Craig's List for artificial insemination, the sperm donor also has a presumption of paternity pursuant to K.S.A. 23-2208(a)(5). In this scenario, there would be competing presumptions as defined by the KPA and the...
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