Yet Another Look At The Marital Presumption–Kansas Weighs In

As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently.  (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.)   These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child.   And then the question is “what next?”

In most of these recent cases the husband and wife standing together can fend off the genetic father.   There’s a sort of “he should have known better” response.   (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.)   In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.

Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week.   I think it follows the path laid out in CA though the ultimate outcome seems less clear to me.    This may be the first of the recent cases in which the genetic father wins, but it’s too early to say that for sure.

Jack and Dana Greer were married.   They separated and Dana dated John Farbo.   Eventually, though, Jack and Dana reconciled.   Shortly after they did, Dana found she was pregnant.  She told John and it seems everyone assumed he was the genetic father.   Emily was born in October, 2012.  John learned of her birth a short time after that.

Genetic testing (done in January, 2013) proves John to be the genetic father of Emily.  He filed for paternity.  (It seems clear, though it isn’t stated, that the tests were done with the approval of Dana.)  John frequently visited Emily and Dana (when Jack was away).   He took a variety of steps to establish a relationship with Emily.   (Jack, too, established a relationship with Emily.)  The trial judge decided that it wouldn’t consider the genetic testing, which pretty much left John without anyway to prove himself a legal father.   The appeal to the intermediate court followed.

The appellate court here reversed the trial court.  It found that both John and Jack were entitled to invoke presumptions of legal fatherhood.  What it didn’t decide was whose presumption would ultimate prevail.    It did, however, point to a statute that provides some guidance.  The court quoted KS law:

“the presumption which on the facts if founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.”

(Page 16.  Emphasis added by court)

While the court does go on to provide an interesting discussion of the various factors that might be taken into account, in the end it concludes that it need not address the balance between the presumptions, because it is for the trial court to do that, at least in the first instance.

Given the facts in this case it is not particularly obvious to me which direction the trial court will go.   (By contrast, I thought the CA course was pretty clear.)   I surely don’t envy the trial judge.  And it does make me wonder why it has to be a zero sum game.







2 responses to “Yet Another Look At The Marital Presumption–Kansas Weighs In

  1. I’m a woman and you’d think I’d be partial to women in these disputes but the pattern I see over and over again in these court cases is clear. Fathers are just trying to do what’s right and take care of their kids when they go to court to try and share custody of their children. They are not there trying to take their children away from their mother and her partner (male or female, married or unmarried). The vast majority of these cases the mother’s are actually trying to legally prevent the father’s from simply doing what they are required to do for their kids – and emotionally do what they should which is include them in the paternal family. Millions of mothers would give their left arm if their kid’s fathers would step up to the plate and show some interest let alone provide physical and financial support. Millions of mothers would do anything for their kids fathers to share the burden of care giving and wish their children had fathers that really took an interest in them – their father’s have to be chased down sometimes kicking and screaming to do just the bare minimum, and these guys are going to court to do the right thing yet the mothers won’t let them. Having the kid’s father named as father and share custody won’t end her legal motherhood at all. The father’s don’t want to take away their children’s mothers, nor do they want to take away whatever relationship they might have developed with the mother’s partner – they just want to do their share of child raising as they are normally required to do because their children deserve it.

    It’s utterly crazy that these mothers would try to prevent their children’s father from doing what he should for his children. I can see preventing visitation with the father if he had abused them or he was convicted of threatening them or something, but that would not mean the kid’s relationship with everyone in the father’s family had to end – the kid’s can keep their legal kinship to him keep his support and benefits through him and their right to legal kinship with his family and other kids. Why take that away from the kid? Even under really bad circumstances with the father they could just cut out visitation. The mother’s partner is not harmed at all by the Father being in the father role. The kid looses nothing – they would have been there anyway helping their mother support them and if they are married the kid even gets benefits if their step parent dies while they are supporting them. The kid does not need to loose anything. I don’t see how they calculate that it’s ever in the child’s interests to loose out on their father to gain a permanent legal connection to a step parent. Why?

    It’s all ego based around the self centered mother who wants to pretend she had kids with her spouse when she did not.

  2. The sad thing is, the child is loosing out on a great father. He should never have his rights taken away based on the fact a women cheated on her husband and conceived a child. 1. He is the father 2. He wants to be in her life 3. He is able to take care of the child ( is stated several times how much he has bought for the child and the willingness to give and keep giving) and 4. He has never done anything to warrant having his parental rights taken away completely. I know Dana and Jack VERY well and its a sad situation. I still think Emily should get to know her father.

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