Kansas Supreme Court Approves Co-Parenting Agreement in Same-Sex Case

On February 22, 2013, the Kansas Supreme Court granted co-parenting rights to each parent in a same-sex relationship. The children were conceived by artificial insemination and only one of the women was a biological parent. Based on the facts of the case, the Court determined it was in the best interests of the children to have both parents and approved a co-parenting arrangement. This decision surprised many commentators because Kansas is not known for breaking new legal ground. The Court itself, however, went out of its way to apply existing case law and statutes to the facts rather than declaring a new social policy.

The Court focused on two key factors in making its decision. First, the sperm donor was not a parent under Kansas law. (Under certain circumstances Kansas law provides that sperm donors are not considered parents, do not have parental rights and are not obligated to provide child support.) Second, the parties previously signed a co-parenting agreement covering how they would provide for the children if the relationship ended.

The Court applied the Kansas Parentage Act and found that the provision for who is a presumed father can be applied to determining a presumed mother as well. One factor is the potential parent is obligated to support the child under a written promise to do so. A second factor is the parent notoriously and in writing recognizes paternity (or, in this case, maternity) of the child. Because the parties signed a written co-parenting agreement the Court concluded the non-biological mother had notoriously and in writing recognized maternity.

Part of the biological mother’s argument was that this presumed mother status could not trump her constitutional rights as the biological mother. However, the Court noted there are cases where a non-biological parent is nonetheless deemed a father under the Kansas Parentage Act. In fact, it is possible to have multiple presumed fathers under the Parentage Act. The Court expanded this notion to say there can be a presumed mother and a biological mother as well.

The finding of the Court is rather limited. If the biological father had parenting rights under Kansas statutes it is not clear the Court would have reached the same conclusion. Further, without the written co-parenting agreement the Court’s decision may have been different. But, the case is not limited to same-sex relationships. It is not hard to imagine a situation where a man helps raise his girlfriend’s child even though he is not the biological father. If there is no biological father in the child’s life (the father is unknown, deceased or has simply refused all involvement and paternity has not be established), the same rules would apply and the boyfriend could seek parenting time under the co-parenting agreement. The Kansas Supreme Court never discussed this scenario and there is no discussion of equal protection of the non-biological mother’s rights as compared to a non-biological father. But the legacy of this case may well be that it treats non-biological parents equally regardless of gender or sexual orientation.

The case is Frazier v. Goudschaal.

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