Frazier v. Goudschaal

Biles, J.,

concurring in part: I would hold that the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq., governs this case and provides sufficient statutory framework to resolve the legal issues advanced by Frazier in her favor as to whether she is a nonbiol-ogical parent under the law and entitled to enforce the coparenting agreement. Therefore, I believe it is unnecessary for this court to delve further into what authority it may have under the common law or advance some other public policy rationale to decide the issues presented. I express no opinion on the analysis adopted by tire majority.

In my view, we start with jurisdiction. A plain reading of K.S.A. 38-1126, which states that “[a]ny interested party may bring an *757action to determine the existence or nonexistence of a mother and child relationship” gives Frazier standing to present her case. And with jurisdiction established, the district court’s finding that Frazier recognized maternity in writing is supported by substantial competent evidence and invokes the KPA’s statutory presumptions regarding parenthood under K.S.A. 38-1114(a)(4).

K.S.A. 38-1113(a) provides that a child’s mother “maybe established by proof of her having given birth to the child or under this act.” (Emphasis added.) Looking further into the statutory scheme, K.S.A. 38-1114(a) provides certain statutory presumptions of paternity. And while those statutory presumptions are written in the context of a man being declared the father of a child, K.S.A. 38-1126 instructs that those presumptions are to be read in a gender-neutral manner “insofar as practicable” in an action to determine under the act the existence of a mother and child relationship. In addition to being mandated by statute, this gender-neutral reading is consistent with what this court has found to be one purpose of the KPA, which is to provide for equal and beneficial treatment of all children, regardless of their parent’s marital status. See In re Marriage of Ross, 245 Kan. 591, 597, 783 P.2d 331 (1989); K.S.A. 38-1112. Children resulting from assisted reproductive technologies should enjoy the same treatment, protections, and support as all other children.

From this juncture, we need only look to K.S.A. 38-1114(a)(4), which provides for a presumption of parentage when the child’s paternity has been recognized “notoriously or in writing.” As outlined in the court’s majority decision, substantial competent evidence most certainly supports the district court’s finding that the coparenting agreement and other facts were sufficient to invoke that statutory presumption. Put simply, there is no question Goud-schaal and Frazier entered into written agreements that recognized Frazier’s status as a coparent and recited that Goudschaal consented to and fostered a parent and child relationship between the children and Frazier.

And to the extent Goudschaal argues now that the statutory presumption in K.S.A. 38-1114(a)(4) should be rebutted due to her biological status over Frazier, K.S.A. 38-1114(c) provides the court *758with discretion to determine which presumptions should control within “the weightier considerations of policy and logic, including the best interests of the child.” Examining the children’s best interests, the district court found that it was in die children’s best interests to have a parent and child relationship with Frazier. That decision is also supported by substantial competent evidence.

In short, I find the KPA’s statutoiy scheme sufficient to address the issues presented and agree with the analysis adopted in Chatterjee v. King, 280 P.3d 283 (N.M. 2012), and Elisa B. v. Superior Court, 37 Cal. 4th 108, 33 Cal. Rptr. 46, 117 P.3d 660 (2005). And based on the KPA, I concur in the majority’s result affirming Frazier’s parent and child relationship and her rights, duties, and obligations arising therefrom. I agree further with the order to remand for die district court to explore further the best interests of the children and the appointment of an attorney to represent the children’s interests. Finally, I agree with the majority as to the division of the parties’ property under Eaton v. Johnson, 235 Kan. 323, 681 P.2d 606 (1984).