JURIST Guest Columnist Linda D. Elrod of the Washburn University School of Law evaluates the Kansas Supreme Court’s ruling that non-biological, same-sex parents can have parental rights….

The Kansas Supreme Court recently applied the Kansas Parentage Act [PDF] to same-sex couples. The court stated that it was in the best interests of the children and that the children had a constitutional right to the opportunity for two parents, including families headed by same-sex parents. In upholding co-parenting agreements signed by the two women before and after the births of two daughters, the court opened the door for the use of contracts regarding parental rights so long as the contracts do not violate public policy, i.e. are not injurious to the public or in contravention of some established interest of society. Specifically, courts can enforce co-parenting contracts that promote the best interests, rights and welfare of children. Such contracts are essential to assure that children born with assisted reproductive technologies (who have same-sex parents) can benefit from the resources of both parents.

In 1995, two women began living together and decided to start a family using artificial insemination. While the original intent had been for each to carry one pregnancy, for health reasons one woman gave birth to both children. In 2002 and again in 2004, the women executed co-parenting agreements before and after the births of their daughters. The parties agreed to “jointly and equally share parental responsibility.” The contracts gave both mothers powers of attorney for healthcare decisions and named each other as co-parents. The women and children lived as a family for several years until the biological mother moved out with the children. When she decided to move to Texas, the non-biological mother filed to enforce the parenting agreement and for an equitable partition of property. The Johnson County District Court, finding subject matter jurisdiction via “highly unusual or extraordinary circumstances” and the Kansas Parentage Act, applied the best interests of the child and awarded joint legal custody and granted parenting time. The court also divided their property. The biological mother appealed.

In enforcing the parties’ contracts regarding both the children and property issues, the Kansas Supreme Court broke new ground. The court held that the co-parenting contract was not “baby-selling,” which would be automatically unenforceable as against public policy. There is no violation of the parental preference doctrine. The biological mother is not abdicating her duties and responsibilities as a parent; she is sharing them. She is actually exercising her due process right to make decisions regarding the care, custody and control of her children by entering into the co-parenting agreement. She could contract to share parental rights without government interference by nullifying the agreement, so long as the agreement is in the best interests of the children. The court ruled that “[a] parent may knowingly, intelligently, and voluntarily waive his or her rights under the Kansas parental preference doctrine” under certain circumstances, including when there is another person ready and willing to be the child’s second parent. Here, the contract named the nonbiological parent as a de facto parent. The Kansas Parentage Act permits the creation of presumptive motherhood through written acknowledgment. The contract was such an acknowledgment.

The Kansas Supreme Court found the children were third-party beneficiaries of the co-parenting agreement. Specifically, the court cited the US Supreme Court’s holding in Gomez v. Perez to support the proposition that the Equal Protection Clause of the Fourteenth Amendment requires equal protection for all children regardless of the status or sex of their parents:

Denying a child conceived by artificial insemination the opportunity to have two parents through a co-parenting agreement does not comport with the constitutional mandate to provide substantive legal equality for all children regardless of the marital status of their parents.

The agreement was not injurious to the public because it provided children with the resources of two parents. Because one of the children showed evidence of emotional issues, the court remanded with instructions to further explore the best interests of the children.

On the property issue, it is now clear that same-sex couples, even though they cannot marry in Kansas, may have their property divided under the same principles of heterosexual cohabitating couples. The key is whether the property was jointly acquired or intended to be jointly acquired during the relationship.

Linda D. Elrod is the Richard S. Righter Distinguished Professor of Law and Director of the Washburn University School of Law Children and Family Law Center in Topeka, KS. A past chair of the American Bar Association Family Law Section, she served as co-chair of the ABA Child Custody and Adoption Pro Bono Advisory Board. Professor Elrod is an expert on family law and child custody.

Suggested citation: Linda D. Elrod, Breaking New Ground in Kansas: Same-Sex Parental and Property Rights, JURIST – Forum, Apr. 2, 2013, http://jurist.org/forum/2013/04/linda-elrod-kansas-parental-rights.php