In re Parentage of M.F., 110620 KSSC, 117, 301

Docket Nº:117, 301
Opinion Judge:Beier, J.
Party Name:In the Matter of the Parentage of M.F., By and Through K.L., Appellant, and T.F., Appellee.
Attorney:Valerie L. Moore, of The Law Offices of Valerie L. Moore, of Lenexa, argued the cause, and Carolyn Sue Edwards, of Law Offices of Carolyn Sue Edwards, P.A., of Wichita, was with her on the briefs for appellant. Christopher J. Vinduska, of Klenda Austerman LLC, of Wichita, argued the cause, and Al...
Judge Panel:Henry W. Green, Jr., J., Steve Leben, J., Stegall, J., dissenting:
Case Date:November 06, 2020
Court:Supreme Court of Kansas

In the Matter of the Parentage of M.F., By and Through K.L., Appellant,

and

T.F., Appellee.

No. 117, 301

Supreme Court of Kansas

November 6, 2020

SYLLABUS BY THE COURT

1. The same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23-2208(a)(4) by notoriously recognizing her maternity.

2. A woman who seeks to establish parentage by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) bears the initial burden to demonstrate the existence of the presumption. If she succeeds, the burden shifts to the party opposed to establishment of the mother and child relationship to rebut the presumption by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the presumed parent, or under K.S.A. 2019 Supp. 23-2208(c).

3. K.S.A. 2019 Supp. 23-2208(c) provides that, if two conflicting parentage presumptions arise, "the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child" prevails.

4. Under K.S.A. 2019 Supp. 23-2208(b), if a presumption under K.S.A. 2019 Supp. 23-2208(a)(4) is rebutted, the burden of going forward with evidence shifts back to the party seeking establishment of the parent and child relationship. That party must go forward with the evidence, and the ultimate burden can be discharged by a preponderance of the evidence.

5. A woman seeking to establish parenthood who relies on the presumption of maternity under K.S.A. 2019 Supp. 23-2208(a)(4) need not show the existence of a written or oral coparenting agreement between her and the birth mother. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child's birth. In addition, in keeping with Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the court must ultimately be persuaded that the birth mother, at the time of the child's birth, consented to share her due process right to decision-making about her child's care, custody, and control with the woman who is claiming parentage under the KPA.

6. Evidence in support of either party's position in a parentage action brought by a person seeking to establish a parent and child relationship by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) may be direct or circumstantial, testimonial or documentary.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 7, 2019.

Appeal from Butler District Court; David A. Ricke, judge.

Valerie L. Moore, of The Law Offices of Valerie L. Moore, of Lenexa, argued the cause, and Carolyn Sue Edwards, of Law Offices of Carolyn Sue Edwards, P.A., of Wichita, was with her on the briefs for appellant.

Christopher J. Vinduska, of Klenda Austerman LLC, of Wichita, argued the cause, and Alex P. Flores, of the same firm, was with him on the brief for appellee.

OPINION

Beier, J.

This case and In re W.L., 312 Kan.__ (No. 119, 536, this day decided), address whether the same-sex romantic partner of a woman who conceives through artificial insemination and gives birth during the couple's relationship can be recognized as a legal parent under the Kansas Parentage Act (KPA), even if the couple has not entered into a written or oral coparenting agreement.

In the district court, the judge ruled that the partner had no parental rights. A panel of our Court of Appeals affirmed that result. In re M.F., No. 117, 301, 2019 WL 2399482 (Kan. App. 2019) (unpublished opinion). We accepted the partner's petition for review.

We rule that such a partner can be recognized as a legal parent through use of K.S.A. 2019 Supp. 23-2208(a)(4) when the birth mother has consented to shared parenting at the time of the child's birth. We therefore reverse the district court's judgment and the panel decision affirming it; we remand to the district court for further proceedings consistent with this opinion.

Factual and Procedural Background

K.L. and T.F. began a romantic relationship shortly after they met in October 2007. They moved in together in the fall of 2008, residing in an Andover home owned by K.L. Before T.F. moved in, she and K.L. opened a joint checking account. Eventually T.F. would testify that the account was set up so that both could use it for household expenses, including mortgage payments and repairs. T.F.'s name was added to the mortgage and deed in January 2009.

Very early in the relationship, T.F. told K.L. that she wanted "a lot" of kids. The parties do not dispute that T.F. always wanted children. K.L. would testify that she and T.F. differed about the number of children each wanted, but she agreed to having one child. T.F., on the other hand, would take the position that K.L. never wanted any children.

In June 2011, after K.L. lost her job, T.F. added K.L. to her employer-provided medical insurance coverage. K.L. and T.F. submitted affidavits that they were domestic partners and intended to continue their relationship indefinitely. T.F. would testify that she added K.L. to her insurance as a matter of financial necessity, rather than as a statement about the couple's status.

In 2012, T.F. began seriously considering using artificial insemination to have a baby, and she and K.L. attended a required pre-insemination session with social worker Renee Cristiano in November 2012. Cristiano's report stated, "[T.F.] believes her family will also support her decision to have [K.L.] appointed as a guardian." It also said that the couple planned "to be co-parents." T.F. would dispute the truth of these two statements in her eventual testimony.

T.F.'s first attempt at artificial insemination was unsuccessful. K.L. was not present for the procedure and was unaware of it until after the fact. T.F. would testify that the decision to undergo artificial insemination "was not a mutual decision. [K.L.] was not supporting the decision. I was doing it alone and I did not want her there. I was going to do this no matter what."

The women's testimony also would eventually conflict on how involved K.L. was in donor selection for the second insemination. T.F. paid for the procedure and for other medical expenses, as well as the session with Cristiano. K.L. was present for the second, successful procedure, and T.F. gave birth to M.F. on October 19, 2013.

The couple had not entered into a written coparenting agreement and never did so.

At the time of M.F.'s birth K.L.'s last name was used as a second middle name on the baby's birth certificate. T.F. would later testify that she felt pressure from K.L. to use the name, while K.L. would testify that she exerted no pressure on T.F. and was "very happy" when she found out that T.F. had included her name in the baby's. T.F. would later unilaterally drop K.L.'s last name from the baby's name.

In late November 2014, T.F. moved out of K.L.'s house and took 13-month-old M.F. with her. K.L. would testify that it was difficult for her to see M.F. after the couple's separation; she attributed the difficulty in part to T.F.'s failure to respond to messages.

T.F. eventually told K.L. that she could come to Inman, where T.F. had then settled, to see M.F., but T.F. forbade overnight stays. K.L. would testify that she did not take T.F. up on the offer to visit M.F. in Inman often; by the time she could drive to Inman after work, she said, M.F. would already be in bed. After a while, T.F. would not let K.L. be around M.F. by herself at all, requiring K.L. to be accompanied by her mother.

K.L. petitioned to establish parentage in November 2015. In February 2016, the district judge heard three days of evidence.

In addition to the testimony already described above, the evidence from K.L. included copies of e-mails between herself and T.F. that were sent from 2007 to 2010 and dealt with the topic of children. When asked on cross-examination why there were no later, similar emails, K.L. said that she and T.F. might have had such discussions in person.

K.L. also testified that she and T.F. shared M.F.'s expenses "[f]or the most part" after the couple broke up. She said she "always offered when [she] was at Costco or Walmart, to see if [T.F.] needed anything."

T.F. testified that she and K.L. never considered formalizing their relationship with a commitment ceremony, but she also said K.L. had asked her "many times" to get married. T.F. always rejected the proposals.

T.F. acknowledged that she and K.L. had attended the session with Cristiano but characterized the statements made to and reported by Cristiano as convenient misrepresentations. She said there had been no real discussion of the differences between K.L. and herself about the issue of children because K.L. knew T.F. "needed this lady's approval to go forward [with the insemination]. And I know [K.L.] was afraid of losing me if she didn't do this for me. After we got home from this appointment we had an argument about it all because [K.L.] was like, '[W]e just lied to this lady!'"

T.F. denied that K.L. had shared in expenses related to M.F. Rather, when T.F. needed financial assistance to provide for M.F., she obtained it from her father. T.F. provided detailed account statements showing her expenditures for M.F.

While the couple was still living together, T.F. said, she and M.F. slept in one bedroom and K.L. in another. T.F. also testified that she was responsible for feeding, bathing, and putting M.F. to bed-sacrificing her social life while K.L. continued hers.

T.F. testified that there were multiple factors leading her to leave K.L. They included her "spirituality and...

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