Kansas high court rules non-biological same-sex parent can have parental rights

[JURIST] The Kansas Supreme Court [official website] on Friday ruled [opinion, PDF] that a non-biological mother of children conceived using assisted reproductive technologies has parentage rights under Kansas law. Kelly Goudschaal and Marci Frazier were in a committed, long-term, same-sex relationship and had two children via artificial insemination. The couple executed a co-parenting agreement and after they separated, Frazier filed suit to enforce the agreement. The district court found jurisdiction under the Kansas Parentage Act (KPA) [PDF] to consider Frazier's claim and awarded the couple joint legal custody. Goudschaal appealled, asserting that she was the only person with a constitutionally protected status of parent and that Frazier was an unrelated third party. The Supreme Court held that a woman can make a claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, jurisdiction was properly granted. Additionally, the court found the co-parenting agreement was appropriate:

Looking at the coparenting agreement ... the children were third party beneficiaries of that contract. 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 ... but also void the benefits to the children that prompted the agreement in the first instance. 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.
However, the court stated that it discerned an absence of sufficient evidence to determine what the best rights of the children were and remanded the case to determine that.

Same-sex child custody and support issues have been the subject of many state court decisions recently. On Wednesday, Puerto Rico's Supreme Court [official website, in Spanish] upheld [JURIST report] a law banning same-sex couples from adopting children. In June, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging North Carolina's law against second-parent adoptions, which effectively bans individuals in same-sex couples from adopting their partner's child. Earlier that month the New Mexico Supreme Court ruled [JURIST report] that the same-sex partner of a parent who has adopted a child has a right to seek custody of that child after the partnership has dissolved. In February the Massachusetts Appeals Court ruled that same-sex couples who marry and have a child through artificial insemination [JURIST report] are subject to the same child custody laws as heterosexual couples. In May 2009 a New York state appeals court ruled that child support claims cannot be brought against same-sex partners [JURIST report] who have no biological or legal ties to a child. In 2005, the California Supreme Court ruled that estranged same-sex couples who created a child using reproductive science were to be treated the same as heterosexual parents [JURIST report] under child custody and support laws.

 

About Paper Chase

Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

© Copyright JURIST Legal News and Research Services, Inc., 2013.