In re W.L.

• Decision Date: 06 November 2020
• Docket Number: No. 119,536,119,536
• Parties: In the MATTER OF the Parentage of W.L. and G.L., By and Through M.S., Appellant, and E.L., Appellee.
• Court: Kansas Supreme Court

475 P.3d 338

In the MATTER OF the Parentage of W.L. and G.L., By and Through M.S., Appellant, and E.L., Appellee.

No. 119,536

Supreme Court of Kansas.

Opinion filed November 6, 2020.

Valerie L. Moore, of The Law Offices of Valerie L. Moore, of Lenexa, argued the cause, and was on the briefs for appellant.

Adam M. Hall, of Thompson Warner, P.A., of Lawrence, argued the cause, and Sarah E. Warner, of the same firm, was with him on the brief for appellee.

Gillian Chadwick, director, Washburn Law Clinic, and Heather Wedel and Jason Mewhirter, legal interns, Washburn Law Clinic, of Topeka, were on the brief for amicus curiae Washburn University School of Law Children and Family Law Center.

The opinion of the court was delivered by Beier, J.:

This case and In re M.F. , 312 Kan. ––––, ––– P.3d ––––, 2020 WL 6533288 (2020) (No. 117,301, 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 W.L. , 56 Kan. App. 2d 958, 441 P.3d 495 (2019). 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

E.L. and M.S. began a same-sex romantic relationship in January 2012 and began living together shortly thereafter. The two began talking about children early, and both expressed a desire to be mothers at some point. In October 2012, E.L. paid for a membership at a sperm bank. And, the next month, she purchased eight vials from a donor through the bank. On E.L.'s third attempt at artificial insemination, in May 2014, she became pregnant.

During the pregnancy, announcements and a baby shower and social media posts appeared to treat both women as expectant mothers. E.L. would eventually testify that, to the extent these communications and behaviors could be construed to mean she was treating M.S. as a parent, she was merely attempting to include M.S. and expressing a hope that M.S. would eventually step into a parental role.

In December 2014, E.L. gave birth to twin boys, W.L. and G.L. E.L. listed herself as mother on the birth certificates. M.S. was not listed as a parent on the certificates, but the twins' last names were hyphenates composed of E.L.'s and M.S.'s last names. E.L. would testify that she used M.S.'s name to create the twins' last name to make M.S. feel included; she would later unilaterally drop M.S. from the babies' names.

E.L. and M.S. had not entered into a written coparenting agreement at the time of the twins' birth and never did.

The couple remained together after the twins' births for about nine months. The relationship ended after M.S. had a liaison with the boyfriend of E.L.'s sister, but the couple continued to reside together until January 2016. At that time E.L. moved with the twins from the couple's shared home in Kansas City to her parents' home in Pittsburg.

Not long after, M.S. moved in with her parents, who also lived in Pittsburg. E.L. allowed M.S. to keep the twins every other weekend and, eventually, one night during the week.

Once in Pittsburg, both E.L. and M.S. began new long-term relationships with others.

In September 2017, M.S. was considering moving back to Kansas City, believing E.L. would not live permanently in Pittsburg. Through a series of text messages, M.S. arranged to meet with E.L. so that they could discuss M.S.'s role in the twins' lives. At the meeting, M.S. asked E.L. about obtaining legal recognition as a guardian or parent. E.L. rejected M.S.'s request.

In early October 2017, M.S. filed a "Petition for Determination of Parentage" in Crawford County District Court. The petition alleged that M.S. had stood in the role of a parent, along with E.L., since the twins' conception, and that "it would be in the best interest of the minor children that the Court make a determination of parentage, custody, and child support." E.L.'s answer denied that M.S. was a parent of the children.

Late the next month a senior district court judge appointed a guardian ad litem to represent the twins and to offer an opinion on whether it was in their best interests to establish parentage of M.S. The same day, the judge entered a temporary visitation order. E.L. had cut off M.S.'s visitation after the petition was filed.

E.L. married C.H. in January 2018, having lived with her and the twins for several months beforehand.

The guardian ad litem filed her report in early February 2018, including the following: E.L. had encouraged a relationship between the twins and M.S., but the strength of the relationship was disputed. "It is clear that [E.L.] has performed the role of mother and had inconsistent involvement and support from [M.S.]." M.S. wanted to continue visits with the twins and provided them affection, but it appeared she had not been involved in making major decisions for the children and did not initiate any legal action until 22 months after the couple's separation. M.S. paid for some medical care, shared day care costs for a time, and provided clothes, toys, and diapers for the twins while they were in her care. M.S. and E.L. had been able to maintain an amicable relationship until M.S.'s filing of the parentage action. Since then, the parties continued to communicate in a businesslike manner. The twins would be "well cared for" by E.L. if M.S. is not declared the children's legal mother; E.L. had "primarily cared for them all along."

The guardian ad litem ultimately concluded:

"There is nothing in writing and no evidence that the parties had agreed on sharing custody of the children. [E.L.] did not agree to share custody with [M.S.].

....

"[M.S.] was in favor of [E.L.]'s pregnancy. She was excited for the birth of the children. She has spent time with them and cares for them, but she has not assumed the role of a mother. She has not established her own housing for the children. She has discussed moving to Kansas City with her girlfriend[—]far away from the children. She has not provided financial support to the children while they are in the care of [E.L.]. It would not be in the best interests of the children to determine maternity and establish [M.S.] as their legal mother."

In late April 2018, the district judge heard two days of testimony.

M.S., M.S.'s parents, and M.S.'s current girlfriend testified for M.S. E.L., two of the boys' nannies, E.L.'s mother, and E.L.'s wife testified on E.L.'s behalf.

M.S. testified that she and E.L. made a joint decision to have children and to both be parents to them. M.S. said she had taken an active parenting role in the children's lives while she and E.L. were together and continued to do so after the separation by taking care of the children every other weekend. M.S. provided financial records of her expenses related to raising the boys, and she said she had been consulted about various parenting decisions. She conceded, however, that E.L. made the final decisions. It was undisputed that M.S. had been charged with driving while intoxicated after the children were born; she also admitted that alcohol consumption contributed to her "bad decision" to engage in the liaison that led to the couple's breakup.

E.L. testified that, although both she and M.S. discussed having children, she ultimately made the decision to get pregnant. After learning of the pregnancy, E.L. said, her life immediately focused on raising the children. M.S., on the other hand, continued her very active social life, including going to bars and clubs with friends. The night before the twins were born, for example, M.S. attended a party with friends. E.L. admitted she had encouraged M.S. to go to the party but did not expect M.S. would actually do so. E.L. also acknowledged that M.S. paid for half of day care expenses for the children, even after the couple split. But she said she had always told M.S. the payments were appreciated but not obligatory. E.L. said she alone did the research necessary to make decisions about the children and did not typically discuss these matters with M.S. E.L. said she often consulted the children's nanny for advice rather than seeking M.S.'s input.

During closing arguments, the guardian ad litem reiterated her opinion that a determination of M.S.'s maternity was not in the children's best interests. "I don't think that the evidence supports the conclusion that she's asking the Court to make. I'm not sure that the law supports that relief that she's seeking." The guardian ad litem understood that M.S.

"has a relationship with the children, that she has paid for things for the children, and a substantial amount of things.

"But it doesn't appear to me that she ever took on a mother role in the same way that [E.L.] did. [E.L.] has made the major decisions. She has been the primary caregiver and done the things that a—that a mother would do. It doesn't seem to me that [M.S.] has shared in the hard parts of being a parent in the same way that [E.L.] has and that [M.S.] has not changed her life the way a parent would and assumed that role."

The closing argument from M.S.'s counsel framed the issues before the district judge in language mostly echoing K.S.A. 2019 Supp. 23-2208(a) and (b), provisions in the KPA. Counsel said that, first, the judge must decide whether M.S. established a presumption of parentage by a preponderance of the evidence; then, whether E.L. had rebutted the...