Saturday, February 23, 2013

What's the matter with Kansas? NOTHING if you are the child of a lesbian couple

This is how parentage should be determined. The Supreme Court of Kansas ruled yesterday, in Frazier v. Goudschaal, that two children born through donor insemination to a lesbian couple are the children of both parents.  The court interpreted Kansas parentage law to create presumptive parentage for a woman who "notoriously or in writing" recognizes parentage of the child.  The statute itself says "recognizes paternity," but because Kansas is one of the states that incorporates the paternity provisions into determinations of the mother and child relationship "insofar as practicable," the court applied them to the petition of Marci Frazier, the nonbiological mother of the children her partner, Kelly Goudschaal, gave birth to.  The court specifically stated that under Kansas parentage law two parents can be of the same sex. The couple had a coparenting agreement denominating Frazier a "de facto parent," and the court determined that it did not violate public policy to enforce the agreement as long as it was in the children's best interests.

The facts of the case are ordinary enough.  The children had a hyphenated surname and called Frazier "mother" or "mom." They lived as a family unit, and teachers and daycare providers treated the couple as equal parents. The couple split up when the children were about 3 and 5 years old.  They maintained equal parenting time for about six months.  Then Goudschall began reducing Frazier's time with the girls, and shortly thereafter she announced that she was moving to Texas and taking the girls with her.  That prompted Frazier to take court action. The trial court ordered joint legal custody with primary physical custody to Goudschall and reasonable visitation rights to Frazier.

The court rejected Goudschall's argument that Frazier could not be a mother because she was not a biological or adoptive parent, and that her biological maternity automatically rebutted any presumption Frazier might have.  The opinion principally discusses the written agreement of the parties.  A nonbiological mom without a written agreement should still be able to prevail in Kansas, however, because the statute the court applied does not require a writing; "notoriously" recognizing the child is sufficient. A concurring opinion focused only on parentage under the Kansas Parentage Act, citing California's Elisa B. case and New Mexico's Chatterjee case as precedent.

As always happens, Goudschaal cited Troxel v. Granville for the proposition that she has a constitutionally protected right to raise her child.  The court agreed, but found that she exercised that right when she entered the coparenting agreement.  The court actually said she should be able to enter an agreement to share custody "without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children."  This is an interesting twist on the constitutional right of a parent; it suggests that if a court ignores such an agreement that is interference with the parent's rights.

The court here gave more focus to the children than is sometimes found in cases about the status of a nonbiological parent.  It called them third party beneficiaries of the coparenting agreement.  It found they had a reliance interest in maintaining two parents and avoiding the harm of severing the attachments they formed as a result of the agreement. "So what Goudschall 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," wrote the court.  It continued, "Surely, her constitutional rights do not stretch that far."  The court did not want the children to "suffer the consequences of their biological mother's change of heart."

The court also cited Supreme Court precedent for the principle that  "all children -- both legitimate and illegitimate -- be afforded equal treatment under the law." Denying the Goudschaal-Frazier children the opportunity to have two parents ("the same as children of a traditional marriage")  would violate the children's constitutional rights.  Note how far this is from the argument that same-sex couples must be allowed to marry to provide their children with equal rights.  This opinion might actually be the strongest statement that a couple should not have to marry to provide two parents for their children.  This is the diametrically opposite result to that in New York, where the Debra H. case held that a child has two parents if the couple is married but only one if the couple isn't married.

The difference in the New York and Kansas opinions are to a large extent dependent on the parentage statutes of the two states.  It's not that Kansas has a gay-friendly statute.  It's that the Uniform Parentage Act, on which the Kansas statute is based, does not require marriage or biology for a finding of legal parentage.  How sensible for all children.

Congratulations and thanks are due to the ACLU, the National Center for Lesbian Rights, and Washburn University School of Law Children and Family Law Center (under the able leadership of Professor Linda Elrod), for the friend of the courts brief they filed in support of Frazier and her children.