I’m going to look more closely at the opinion issued in Kansas yesterday. For background you can start with yesterday’s rather hurried post. If you want to follow along with the actual opinion, I’m going to really focus on the materials after page 18. Up until that point, the court has basically stated the facts (which are in yesterday’s post) and summarized the various positions taken by parties and amicus.
From a totally lawyer/geek point of view, it’s noteworthy that the first discussion of the substantial issues–what does it mean to be a legal parent? Who can claim to be one in Kansas?–arises in the context of jurisdiction. It’s actually not uncommon. Goudschaal essentially asserts that she is a parent (by virtue of genetic connection/biology) and that there are only two paths to parenthood in Kansas–that one and adoption. Since Frazier claims neither, Goudschaal asserts she (Frazier) doesn’t even have a right to ask a court to decide whether or not Frazier is a parent. In essence, Goudschaal asserts that the court has no authority to even consider the question.
This may seem an obscure point to focus on, but I think it tells us something about the potential force of the argument Goudschaal is attempting to invoke. It’s more than just “I win, you lose.” It’s “you don’t get to come into the court and try.” Goudschaal is unsuccessful here, but that isn’t always the case in these sorts of cases.
In any event, the Kansas court determines that Frazier is “an interested party” and so can raise the claim. It rejects Goudschaal’s assertion that there are only two ways to get to be a legal parent in Kansas and it does so by pointing Kansas law governing legal fatherhood. (There’s a long quote from the statute on page 20.)
Here Kansas law is unremarkable. As I’ve noted many times before, legal fatherhood generally does not depend on biological connection: A man may claim legal fatherhood by virtue of being married to the child’s mother at various specified times or by acknowledging the child as his child. Of course, Kansas has its own specific variations on these general points, but it basically follows the well-established law here.
Returning to the Kansas opinion, having noted that legal fatherhood is not dependent on either adopting or showing genetic connection, the court turns to another provision of Kansas law–also a common one.
K.S.A. 38-1113 states that a mother “may be established . . . under this act [KPA]” and K.S.A. 38-1126, dealing with the determination of the mother and child relationship, specifically incorporates the provisions of the KPA applicable to the father and child relationship, insofar as practicable. A harmonious reading of all of the KPA provisions indicates that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, can be an “interested party” who is authorized to bring an action to establish the existence of a mother and child relationship.
Page 21. Thus, in the course of dealing with the jurisdictional objections raised by Goudschaal the Kansas Court works through the state statutory provisions to determine the possible paths by which Frazier can claim legal parentage. Her options are essentially similar to those that would be available to a man in her position.
Though it is important, all of this is really preliminary to the Court’s discussion of the application of law to the facts of this case. Up to this point in the opinion what’s been established is that Frazier has a right to ask the Court to recognize her as a legal parent. Now she has to convince them that she actually should be recognized as such. The Court finds reason to do so.
The Kansas Court starts with the parenting agreements. The agreement designated Frazier as a de facto parent. While I think the Court retains a right to review such agreements to see if they are in the best interests of the child, in general it seems disposed to recognize them and give them effect. It’s worth having a look at the circumstances that lead them to this conclusion–one of which is that there is no biological father to displace. (Page 27.) That suggests that the use of an unknown or anonymous sperm provider might be important. (As a side note, remember that this litigation is currently underway in Kansas.)
It’s also notable that in considering Gouldschaal’s argument that the agreements should be void, the Court paused to consider the perspective of the children involved:
They would have a reliance interest in maintaining the inherent benefits of having two parents, and severing an attachment relationship formed under that contract would not only risk emotional and psychological harm, as the NASW asserts, but also void the benefits to the children that prompted the agreement in the first instance.
Page 29. This is a perspective all too often ignored.
Most of the remainder of the court’s decision considers Goudschaal’s assertion that her constitutional rights were violated. This is an important point that I’ll consider in the next post on the case–because I’ve gone on quite long enough for one go.