Kansas III: In Which The Court Considers The Constitutional Claim of Parental Rights

This is my third post on a recent (and important) decision from the Kansas Supreme Court.   I suggest you read the first two posts before this one so you know what’s going on.  I’m trying to minimize repetition.

The case at issue is one of those intra-lesbian  mother disputes that has appeared on the blog with unfortunate frequency.  Two women–a couple–decide to start a family and have children together.  Because of the way law is structured, one woman has an easy path to legal parenthood–she is both genetically related to the child and gives birth.  In the problem cases, the women split up and the one with clear legal rights tries to deny the legal status of the other woman.    It’s important to distinguish these from the broader category of cases where the women split up and disagree about custody.    Legal parents disagree about custody and go to court to litigate it somewhat frequently.  What distinguishes the cases I’m thinking of is that one woman asserts that the other is not a legal parent.

Anyway, I’ve already discussed the way in which the court found parental rights in the second woman.   Now I want to focus on the court’s discussion of an objection raised by the original parent (here that is Goudschaal)–that recognition of the second parent violates the first parent’s constitutionally protected parental rights.   This is a critical objection that must be seriously considered, both because it invokes the US Constitution and because it is common to almost all the cases in this category.

There is little doubt that the original parent (the woman who gives birth) has constitutionally protected parental rights.   Further, it is widely understood that component of the protected parental rights is the right to decide who a child spend times with.   So, for example, if I am a legal parent than I have the right to decide which friends/relatives my child spends time with.  A court cannot intervene unless there is a sufficient basis to overcome my rights.   In sum, Goudschaal’s assertion here is that the court’s determination that Frazier is a legal parent infringes on her rights to control who the child sees.

The court considers the argument and rejects it.   In doing so it provides what I htink is one of the clearest articulations of the counter-argument:

[W]hat Goudschaal overlooks is the fact that she exercised her due process right to decide upon the care, custody, and control of her children and asserted her preference as a parent when she entered into the coparenting agreement with Frazier. If a parent has a constitutional right to make the decisions regarding the care, custody, and control of his or her children, free of government interference, then that parent should have the right to enter into a coparenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.

(Page 28-29.)  In other words, recognition of Gaudschaal’s rights virtually requires recognition of the agreement she made because that agreement was an exercise of her rights.

The court offers a second reason why Gaudschaal’s invocation of rights must fail:

So what Goudschaal really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights. Surely, her constitutional rights do not stretch that far.

(Page 29.)  Here again, as I noted yesterday, the court does something laudable–it considers the interests of the children.

There are, of course, limits to constitutionally protected parental rights as there are limits to all constitutional rights.   In order to define the scope of rights the state must articulate other interests that might legitimately limit the rights asserted.   And surely the rights of the children–a proper concern of the state–must limit the rights of a parent.   (This is most obvious in the case of physical discipline.   A parent does not have the right to use unlimited force against her child because the state’s interest in the well-being of the child curtails the parental right.)

So here the court’s ruling hinges on its appreciation of the interests of the children involved.  As the court says, parental rights cannot be extended to the point where they are exercised at the expense of harm to the children.

I think there’s room for one more post here–which I hope to get to tomorrow.  I’d like to take a step back from the details of the opinion and think about how the case fits into the larger picture.   But for now, I’m done.


21 responses to “Kansas III: In Which The Court Considers The Constitutional Claim of Parental Rights

  1. I wonder how the court would have ruled if she had not made the agreement – everything else was the same but she refused a formal agreement. Whose rights would win? My personal opinion is that the bio mother’s should in that case which I am sure you would disagree with. But I wonder if the court would have found the mother’s rights to be stronger if she had specifically refused a formal agreement.

    • In the UK case Re R (a child) the court decided against the rights of a social father because he hadn’t had contact with the child (he’d gone for DI with his partner, they had frozen embryos, they split up and she used them, telling the clinic he’d consented). He felt because they’d gone for fertility treatment together that he was effectively the social father but the court didn’t agree.

      And in Re G (a minor) and Z (a minor), which made the headlines here a couple of weeks ago, two men who were considered sperm donors by the lesbian couples who’d used them to create families got the right to apply for access because they had a track history of contact.

      You can’t be sure a US court would follow the same values although they seem to be largely similar, but the formal agreement is proof of intent and legitimised what was actually happening. So the basis of the decision might have been exactly the same, but it would have been an awful lot harder for Frazier to prove she was a parent.

      I don’t think that a parent should have the right to separate a child from the only other parent it knows, just because they no longer have a relationship, whether they are male or female.

      • I would love to read those UK cases. I think I’ve got cites for the G and Z case, but can you post anything for the Re R?

        It’s much more difficult where agreements say one thing but people act in a way inconsistent with that. There are instances where the agreement says “donor or partner is not a parent” but the donor/partner is allowed/encouraged to act like a parent. And there are cases that are the other way round–agreement says “donor/partner is a parent” but donor/partner never invests anything in relationship with child. I’d rather court’s privilege the actual conduct, but sometimes they are happier with the agreement. As Rebecca has suggested, it is cleaner and clearer that way.

        There are also instances where even though the conduct and the agreement both point the same way, the court won’t go there. The pending KS sperm donor case (I linked to it in today’s post) is such a case.

    • Certainly the genetic mother’s rights would have been stronger had she refused an agreement. And there are reasons to think it would have made a difference in the outcome–which does seem to turn on the agreement. But there’s also the language quoted about men–who become legal fathers if they notoriously acknowledge paternity, or something like that. There’s no talk of agreement there.

      In general, one can waive constitutional rights without a formal agreement to do so, as I recall. Waiver can be implied from conduct. I’m not sure what would happen if she specifically refused to waive but if they just never talked about agreements or waivers but she allowed her partner to act as a coparent for a period of time, a court might infer waiver from conduct. When you allow the child to form a parent-like relationship with another adult, when you encourage the formation of that relationship, I think a court might find waiver.

      • I’ve been watching some of the cases in Ohio which has had a few lately. In the Mullen case they said a written agreement was not required but since the bio mother had refused such an agreement, there was no enough evidence absent one to give the partner rights. I think it would be much easier to just require a written agreement and everyone would know their rights ahead of time. Will be interesting to see what happens if the Rowell/Smith case final custody order ever makes it to the OH SC since IIRC that was a he said/she said case where the bio mother claimed she specifically refused a written agreement and the former partner said they just never got around to it.

        • I had some misgivings about the Kansas case KMH all those years back. As I recall, the sperm donor wanted parental rights and said they actually had agreed he would have parental rights but he lost the case because there was no written agreement. The thing is, the woman was a lawyer and I cannot help but wonder if she mislead him about whether or not a written agreement was needed. I suppose I just worry that a rigid requirement of a writing sets people up to be taken advantage of, but perhaps I place too much faith in judges.

          • If it were well known that a written requirement were required though, it would be clear to all parties from the start what their rights would be whether they did x or y.

            • It would be terrific if everyone knew and understood that agreements had to be in writing. It might not totally solve the problem (for me anyway) because I think sometimes there isn’t a moment agreements are made–things just evolve and then there you are living your life. But at least it would address a lot. The problem, of course, is that most people don’t know that agreements need to be written down (and in many places agreements would have no force anyway). SO what do we do with people who just didn’t know?

  2. I’m gratified that the court mentioned the absence of the child’s biological father in their reasoning. I hope that in the future this consideration would prevent a non related partner from displacing a father who was available.

    • What the hell does available mean?

    • The only legal reason for a bio parent to not be available should be death.

      • What the court says is that there isn’t a biological parent to displace. That’s because under Kansas law, the sperm donor (biological parent) is not a legal parent. This means there is no biological parent occupying a legal parent slot who Frazier is trying to move out of that slot. Legally, before the court acts, the child has one and only one legal parent.

        I understand you do not like this law, but this is the choice of the Kansas legislature.

    • It looks to me like it might well do that, though it is hard to say. But remember that all it means is that the women need to work with a doctor. They do not have to use an unknown donor. I’m glad about that because it seems to me using a known/knowable person can be the right choice for some people and it would be a pity of the law made that impossible or unpalatable. But I don’t think that’s Kansas law. Kansas law just doesn’t allow you to do-it-yourself at home. (See the KMH case, discussed today and a while back on the blog.)

  3. This case resolved exactly the way it should have – the best interests of the child won.

  4. However, I will add that I still do not understand LGBT couples that have children together and the non-bio parent doesn’t seal the deal with a formalized adoption. As parents it is your responsibility to ensure that your children have a legal relationship with both parents even if this means moving to a new state, one that offers LGBT couples co-parent adoptions. Your children deserve the security of a co-parent adoption.

    • I’m not sure you can do a second-parent adoption in Kansas. Many other states require residency (which means months living there) before you can do adoptions in state. And adoptions are expensive. All of this is to say that there are any number of reasons why people may not adopt. It does, however, make it a whole lot simpler (legally) when they do.

      • Julie – I agree that it’s a tremendous hurdle and may require a significant sacrifice on the part of the parents. But, these kids deserve to have their relationships with their parents protected by legal recognition which means some LGBT couples will have to make the painful & costly decision to relocate but it’s worth it for the safety of their child.

        • I think that is one of those things that is easier to say than to do. There’s another problem, too. Plenty of lesbian couples with kids probably have no idea how vulnerable they are in legal terms. And they don’t know that they could move somewhere else and do an adoption, assuming it was really possible.

          It worries me because the people who won’t be able to do adoptions are going to be those with less money, less education, less access to lawyers. Those are people who already are at a disadvantage. I think we need legal responses that are readily available the people without the resources to do the formal legal stuff–which is a big part of why I’m a fan of the functional parent approach, even though it can be messy.

  5. Forgive me if this has already been discussed here, but I read the opinion and it seems like the issue of *why* the children were not adopted was ignored. As I’ve mentioned previously, my son was born in Ohio, a state that does not permit second-parent adoption. As a result, we were forced to cobble together ‘parental rights’ through an expensive court-approved co-custody agreement that had no legal significance outside of the county in which we lived and other legal documents. When we moved to our current state, the very first thing we did was pursue a second-parent adoption, for exactly the reasons discussed in this case – a custodial agreement does not confer actual parental rights.

    It is my understanding that some second-parent adoptions have been granted in Kansas but that availability is very judge and county-specific. This is the case in many states, including the state I live in now, which borders Kansas. If the non-bio parent was unable to obtain an adoption, and the couple completed the custody agreement because – like in our situation – it was the only mechanism available to establish ‘parental rights’ for the non-bio mom, this is a very relevant fact. Given the ‘don’t ask, don’t tell’ culture around second-parent adoption in my current state of residence, I have to wonder whether the court’s avoidance of this discussion was deliberate. Any thoughts on this?

    • Though I am not an expert I share your understanding of Kansas law. In particular, I think here is no clear state-wide statement about second-parent adoption.

      I don’t really have any idea whether the failure to discuss second-parent adoptions was deliberate. It’s possible that no party raised the question. I think the way it might have been raised would be if Goudschaal would argue that Frazier should have tried to do one. You do sometimes see people argue (in essence) that the failure to try one demonstrates a lack of commitment to parenthood. Goudschall may not have made this argument, perhaps because there was no real disagreement about the intention of the parties here (what with written agreement and all). But I don’t know if any of this is correct.

      I am relieved that the court did not hold it against Frazier that she did not try to adopt. I worry a lot about the way in which the failure to do a second-parent adoption can be held against someone given that there are many reasons why people don’t do them–reasons that have nothing to do with the commitment of the couple to raise a child. Indeed, I wrote an actual law review article about this some time ago. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029698

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