No. 124,288
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Parentage of A.K.
SYLLABUS BY THE COURT
1.
According to the Kansas Parentage Act, a parent and child relationship means the
legal relationship existing between a child and the child's biological or adoptive parents.
K.S.A. 2021 Supp. 23-2205.
2.
A woman can be a presumptive mother under K.S.A. 2021 Supp. 23-2208(a)(4)
without claiming to be a biological or adoptive mother. Such a presumption is a "legal
fiction" of biological parentage in cases involving artificial insemination. Thus, a child
can have two mothers rather than a mother and a father.
3.
A presumption under K.S.A. 2021 Supp. 23-2208(a)(4) does not arise or is
rebutted if either the birth mother did not consent to share parenting duties or the
petitioner did not notoriously recognize maternity at the time of the child's birth.
4.
A man is presumed to be the father of a child if after the child's birth, the man and
the child's mother have married and, with the man's consent, the man is named as the
child's father on the child's birth certificate. The statute does not say how long after the
child's birth. There is no time limit set by K.S.A. 2021 Supp. 23-2208(a)(3).
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5.
When two competing presumptions of parentage arise and conflict with each
other, a district court must determine which presumption is founded on the weightier
considerations of policy and logic, including the best interests of the child. K.S.A. 2021
Supp. 23-2208(c).
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed September 16,
2022. Affirmed.
Valerie L. Moore, of Lenexa, for appellant A.M.
No appearance by appellees K.K. and Q.K.
Before HILL, P.J., MALONE, J., and PATRICK D. MCANANY, S.J.
HILL, J.: The Kansas Parentage Act recognizes claims of parentage, not only
based on genetics but also based on a child's circumstances. These circumstances give
rise to statutory presumptions of parentage, and sometimes two presumptions can
conflict. In a case of conflicting presumptions, a court must decide which presumption is
based on weightier considerations of policy and logic and account for the best interests of
the child.
The district court here, on remand from this court, found circumstances had
created two conflicting presumptions under the Act. First, the petitioner, A.M., had
established a presumption of parentage based on the circumstances before and after the
child's birth. Second, the district court found that Q.K., the birth mother's husband, had
established a presumption of parentage because after the child's birth, he married the
child's birth mother and, with his consent, he was named as the child's father on the
child's Missouri birth certificate. And the child has been living with him as part of his
family since his marriage.
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The court weighed the presumptions, considered the circumstances, and held that
Q.K. had the weightier presumption. The court decided that it was in the child's best
interests to hold that Q.K.'s presumption prevailed. From our review of the record, we see
that the district court did exactly what the Act calls for—to weigh conflicting
presumptions and rule for the prevailing party. We find no error by the court and affirm.
Because the presumptions of parentage involved here deal with circumstances and
not genetics or biology as some caselaw mentions, we will give a detailed case history.
A romantic relationship falls apart, a child is born, the birth mother marries a man after
her child is born, and two people claim parentage.
A.M. and K.K. began a four-year romantic relationship when they were minors.
The two young women started living together. In early 2013, K.K. had an affair with
W.S. and became pregnant. A.M., at first, told K.K. to have an abortion, but sometime
during the pregnancy A.M. got "on board" and became more enthusiastic. A.M.'s family
organized baby showers where she and K.K. both participated. A.M. attended all of
K.K.'s obstetrical appointments.
K.K. gave birth in November 2013. A.M. and her mother were present in the room
at the birth, and A.M. cut the umbilical cord. A.M. took time off from work to be with
K.K. and the baby following the birth. A.M. referred to the child on Facebook as "[m]y
girlfriend's and I['s]" child. The child was given A.M.'s last name on the original birth
certificate. No father was listed on the birth certificate. A.M. said she was not permitted
to sign the birth certificate because she was not biologically related to the child.
The parties continued to reside together and, at one point, were engaged to be
married. But they ended their relationship in early 2015. The relationship between A.M.
and K.K. contained instances of violent physical abuse initiated by both parties, including
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throwing things, punching, kicking, and a violent altercation that ended in a serious car
accident. There were physical altercations after the birth of the child, and in the presence
of the child. One violent altercation involved A.M. knocking K.K. unconscious while
K.K. was holding the child. A.M. stated that the physical violence was the main reason
they broke up, so the child would not be in that environment.
After the breakup, A.M. continued to spend significant time with the child, mostly
to accommodate her and K.K.'s work schedules. But A.M. also had the child for two
weeks at a time when K.K. temporarily moved to Kentucky. K.K. met A.M. in St. Louis
to facilitate the child exchanges. A.M. celebrated some birthdays and holidays with the
child. A.M. paid K.K. over $1,400 for the child's day care and school expenses. The
payments were labeled "child support." But A.M. said that was "mostly . . . joking." K.K.
made the parenting decisions about raising the child.
K.K. met Q.K. when the child was just over a year old. In 2016, K.K. had a son
with Q.K. They moved in together and married. Q.K. is not biologically related to the
child that is the subject of this case. He did not meet the child until she was about 18
months old.
K.K. started temporarily denying A.M. access to the child in 2015 for a few days
to two weeks at a time. Then, in January 2018, K.K. stopped A.M.'s visitation with the
child. The next month, K.K. and Q.K. changed the child's last name on her birth
certificate in Missouri and they added Q.K. on the birth certificate as the child's father.
Q.K. prepared a petition for a stepparent adoption of the child but did not file it.
In March 2018, A.M. petitioned the Johnson County District Court for a
determination of parentage, claiming that she "notoriously or in writing recognizes
paternity of the child." See K.S.A. 2021 Supp. 23-2208(a)(4). The district court issued
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temporary orders giving A.M. visitation time with the child every other weekend, finding
that A.M. had shown "an existing de facto custody arrangement."
At a hearing in May 2018, the court found that because K.K.'s and Q.K.'s marriage
was in 2016, "I can't think of any reason why [K.K.'s] current husband would be a
necessary party." K.K.'s attorney agreed that the timing would not give rise to a
presumption. The attorney stated, "My client's husband does not claim to be the father of
the child." The court stressed that "anyone claiming to be a parent" of the child needed to
be joined as a party. Q.K. did not seek to be added as a party to the case.
In June 2018, W.S. was added as a party to the action. He filed no pleadings and
attended only one court hearing in October 2018. He acknowledged he was the child's
biological father. He signed a voluntary relinquishment of his parental rights and consent
to a stepparent adoption which stated, "I am the biological father of the minor child." No
genetic testing was performed. K.K. kept in touch with W.S. for the first year after the
child was born and sent him pictures of the child, but he was not present in the child's
life.
At a later hearing in October 2018, the district court, on its own motion, added
Q.K. as a necessary party to the action because of the evidence presented that his name
appeared on the child's Missouri birth certificate. The court cited K.S.A. 2018 Supp. 23-
2208(a)(3)(B).
The court appointed a guardian ad litem for the child after W.S. made an
appearance due to possible competing presumptions. At the bench trial in December
2018, the GAL gave her opinion based on her independent investigation. The GAL talked
to the child, various people, and was present at the trial. The GAL's investigation
revealed that A.M. and K.K. had intended to coparent before the child's birth. The GAL
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considered the time A.M. spent with the child to be parenting time. The GAL stated that
it was in the best interests of the child that A.M. be considered a legal parent.
A.M. testified the child calls her "Momma or Mommy," but K.K. testified that did
not begin until this litigation had started, and at A.M.'s instruction. The child calls A.M.'s
parents "Poppa" and "Grandma [S.]." K.K. testified that A.M. did not have a mother-child
relationship with the child. Rather, it was a friend or aunt-type relationship.
The child calls Q.K. "Dad" or "Daddy." Q.K. testified he considered the child to
be his child and did not differentiate between her and his son. He signed her birth
certificate because they "wanted to be a family unit" and "wanted [the child] to share the
same last name as the rest of us." He asked the court "[t]o make it official" that he was
the child's parent. There was testimony that the child had a "normal father and daughter
relationship" with Q.K.
During this litigation, A.M. told the child that Q.K. was not her biological father.
Q.K. testified that the litigation had damaged the relationships between him and the child,
and between the child and her younger brother.
The district court took the matter under advisement and then ruled that A.M. could
not legally establish a presumption of parentage because she was not biologically related
to the child and did not enter into a coparenting agreement with K.K. The court held both
W.S. and Q.K. had established presumptions of paternity, weighed the presumptions, and
determined Q.K.'s presumption was founded on weightier considerations of policy and
logic, and it was in the best interests of the child for Q.K. to be declared the legal parent.
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Our court reversed the district court's ruling and remanded the case.
The district court's ruling did not stand. A.M. appealed and a panel of this court
reversed, holding the district court made an error of law in determining A.M. could not
establish a presumption of parentage. The panel held the presumption stated in K.S.A.
2021 Supp. 23-2208(a)(4) does not depend on a biological connection to the child, nor
does it require a coparenting agreement. The panel remanded the case to the district court
for further proceedings since it did not make the factual determination whether A.M. had
established a presumption of parentage under the correct law. The appeal did not concern
Q.K.'s presumption of parentage. McMullin v. Kirch, No. 121,293, 2020 WL 4377905, at
*3 (Kan. App. 2020) (unpublished opinion).
On remand, no new evidence was presented. The district court found that A.M.
had established a presumption of maternity because she participated in a baby shower,
she posted comments on social media claiming the child was part of her family, she cut
the umbilical cord, and the child was given A.M.'s last name at the time of birth. The
court then weighed A.M.'s presumption against Q.K.'s presumption and concluded that
Q.K. had the weightier presumption and it was in the best interests of the child that he be
declared the child's father. The court considered:
• it would be easier for the child to grow up in an intact family with her
younger brother;
• the history of domestic violence between A.M. and K.K.;
• the child's belief that Q.K. was her father until A.M. told her otherwise;
• Q.K. had taken the child into his home and provided years of financial
support and care;
• A.M. could have initiated a parentage action years earlier but did not; and
• K.K. and Q.K.'s ability to coparent.
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A.M. appeals, contending that Q.K. cannot establish a legal presumption of
parentage. No one else has filed a brief.
We have combined the several issues raised by A.M. to three:
1. Did the district court err in ruling Q.K. had a competing presumption of
parentage?
2. Was it an abuse of discretion for the court to disregard the GAL's
recommendation when the court made its best interests of the child analysis?
3. Does the Parentage Act violate the Equal Protection Clause of the 14th
Amendment to the United States Constitution because Q.K., as a man, could
sign a birth certificate as a father and thus claim a statutory presumption in this
parentage action, while A.M. could not sign a birth certificate as a woman
claiming paternity?
Was Q.K.'s claim of parentage untimely?
Citing two Kansas Supreme Court opinions, In re Parentage of M.F., 312 Kan.
322, 339, 475 P.3d 642 (2020), and In re Parentage of W.L., 312 Kan. 367, 383, 475 P.3d
338 (2020), as authority, A.M. contends that Q.K. could not establish a presumption of
parentage because any intent for him to be the child's parent did not exist at the time of
the child's birth. And allowing him to create under K.S.A. 2021 Supp. 23-2208(a)(3) a
presumption of parentage five years after the child's birth is contrary to public policy and
caselaw. She also argues that the district court improperly skipped the key burden shifting
analysis that gives parties a chance to rebut a presumption.
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The source of the statutory presumptions here is the Kansas Parentage Act.
According to the Parentage Act, a "'parent and child relationship' means the legal
relationship existing between a child and the child's biological or adoptive parents."
K.S.A. 2021 Supp. 23-2205. From that definition, the Act details various aspects of these
relationships. A mother and child relationship "may be established by proof of her having
given birth to the child or under this act." (Emphasis added.) K.S.A. 2021 Supp. 23-2207.
This means that other than giving birth, the law can create a relationship that can be
protected. To determine a mother and child relationship "under this act," the statute lists
several presumptions of "paternity" that can, when practicable, apply to determine a
mother and child relationship as well. K.S.A. 2021 Supp. 23-2208(a); K.S.A. 2021 Supp.
23-2220.
A.M.'s statutory presumption is created from language in the Act found at K.S.A.
2021 Supp. 23-2208(a)(4). Q.K.'s presumption arises from K.S.A. 2021 Supp. 23-
2208(a)(3). This is significant because the presumptions are different. We begin with
A.M.'s presumption.
The K.S.A. 2021 Supp. 23-2208(a)(4) presumption
A woman can be a presumptive mother under K.S.A. 2021 Supp. 23-2208(a)(4)
without claiming to be a biological or adoptive mother. Our Supreme Court has called
such a presumption a "legal fiction" of biological parentage in cases involving artificial
insemination. Thus, a child can have two mothers rather than a mother and a father. M.F.,
312 Kan. at 339; Frazier v. Goudschaal, 296 Kan. 730, 746-47, 295 P.3d 542 (2013). In
the prior appeal in this case (which was decided after Frazier but before M.F.), the panel
ruled that the petitioner could establish the same legal fiction under (a)(4) even though
the pregnancy did not result from artificial insemination. See McMullin, 2020 WL
4377905, at *3.
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Relying on Frazier, a panel of this court has also applied the K.S.A. 23-2208(a)(4)
presumption to a man who had notoriously recognized paternity of a child since the
child's birth or very soon after, but who was not married to the birth mother and did not
claim to be the biological father. In re E.G.S. ex rel. Larson v. Sonnier, No. 108,778,
2013 WL 2972697, at *3-4 (Kan. App. 2013) (unpublished opinion).
Recently, our Supreme Court explained that Frazier "expand[ed] the definition of
a biological parent to include those for whom an actual biological link was impossible but
the creation of a legal fiction appropriate." M.F., 312 Kan. at 344-45. But the court set a
time limit for making claims of parentage under this section.
First, under K.S.A. 2019 Supp. 23-2208(a)(4), a woman need only show she
"notoriously recognized her maternity, including the rights it would give her and the
duties it would impose upon her." M.F., 312 Kan. at 350. But the M.F. court also added a
"constitutional overlay" to application of the (a)(4) statutory presumption based on the
parental preference rule and Troxel v. Granville, 530 U.S. 57, 60, 73, 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." M.F., 312 Kan. 322, Syl. ¶ 5.
The M.F. court was concerned that "[t]o interpret subsection (a)(4) of K.S.A. 2019
Supp. 23-2208 to allow anyone—even one with no relationship of any kind with the birth
mother—to unilaterally pursue parenthood under this presumption has the potential to
lead to unconstitutional as well as absurd results." 312 Kan. at 351. Implicitly the court
recognized some claims of parentage would be so unreasonable that they should be
rejected.
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The M.F. court then discussed the type of evidence that could prove the birth
mother's consent or the petitioner's notorious recognition of maternity, including direct or
circumstantial, testimonial, or documentary evidence. 312 Kan. at 351-52. The court
finally emphasized the importance of proof of timing of an acknowledgment and consent:
"Further, as alluded to above, this case illustrates that proof of timing of an
acknowledgment of maternity and a consent to share parenting is critical. The court must
avoid giving either party a veto after the arrangement has been put in place and into effect
at the time of the child's birth. Allowing unilateral action by either party to thwart the
maternity of the other after a child has arrived and vital bonds with both have begun to
form is unacceptable. On this question, we note that, under several of the KPA's
presumptions, our Legislature has made the timing of the child's birth significant.
See K.S.A. 2019 Supp. 23-2208(a)(1), (a)(2), (a)(3). These provisions support the idea
that it is at the moment of birth when Kansas law deems a child to have either one parent
or two." 312 Kan. at 352.
We note that the court referred to subsection (a)(3) of the statute in that list of
presumptions that make the timing of the child's birth significant. The plain language of
(a)(3), however, has no time limit. Even so, the court explained the significance of the
timing of claims of parentage:
"Designating the time of the child's birth as the time when a birth mother must
have consented to shared parenting and a woman in K.L.'s position must notoriously
recognize maternity also makes sense for another, practical reason. Although the current
statutory language means we emphatically stop short of requiring a formal contractual
arrangement, a demand that each individual have made up her mind as of the time of the
baby's arrival incentivizes stability for that child over surmountable relationship
disappointments that are bound to occur. As with existence of premeditation when a
trigger is pulled, the evidence of what is in the mind of the person pulling it may come
from words and actions before, during, or after the event. [Citation omitted.] In the case
of the birth of a child, the crystallization of the parties' individual intents at the time the
child enters the world configures the family." 312 Kan. at 352.
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In other words, a presumption under (a)(4) does not arise or is rebutted if either the
birth mother did not consent to share parenting duties or the petitioner did not notoriously
recognize maternity at the time of the child's birth. The M.F. decision deals only with the
creation of the (a)(4) presumption. The case does not touch on any other statutory
presumption or what to do when competing presumptions arise.
There is another consideration mentioned by caselaw. Parents will be held to their
decisions. In a case decided the same day as M.F., the Supreme Court reiterated that a
child is born with one parent or two:
"[A] birth parent needs to make a decision and be held to it, not [be] given the power to
change his or her mind whenever the bloom is off the rose of romance or it otherwise
suits. A child is born with one legal parent or two. His or her birth mother does not get to
change that reality once it arises by operation of law." W.L., 312 Kan. at 383.
So we see that parentage can be created by birth or by operation of law through the
enforcement of certain legal presumptions.
The K.S.A. 2021 Supp. 23-2208(a)(3) presumption
Q.K.'s presumption of paternity arose under (a)(3)(B) because he married K.K.
and they added his name to the Missouri birth certificate as the child's father.
The statutes describe how these presumptions are to be treated by the courts. The
K.S.A. 2021 Supp. 23-2208(a) presumptions are rebuttable by clear and convincing
evidence, by a court decree establishing paternity of the child by another man, or by
another presumption as provided in subsection (c). When a presumption is rebutted, "the
party alleging the existence of a father and child relationship shall have the burden of
going forward with the evidence." K.S.A. 2021 Supp. 23-2208(b). That burden can be
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satisfied by a preponderance of the evidence. M.F., 312 Kan. at 341-42. When two or
more presumptions arise that conflict with each other, "the presumption which on the
facts is founded on the weightier considerations of policy and logic, including the best
interests of the child, shall control." K.S.A. 2021 Supp. 23-2208(c).
So we start with a statutory presumption. If it is rebutted by clear and convincing
evidence, then the one claiming parentage can proceed and prevail if the court is
convinced that the party has shown by a preponderance of the evidence that the facts are
more probably true than not true.
The deep issue A.M. raises is whether the district court erred in even getting to
subsection (c) because Q.K. could not have established a legal presumption of
parenthood.
The statute does not set a specific time limit in all of the subsections. K.S.A. 2021
Supp. 23-2208(a)(3)(B) states a man is presumed to be the father of a child if: "After the
child's birth, the man and the child's mother have married . . . and: . . . with the man's
consent, the man is named as the child's father on the child's birth certificate." The statute
does not say how long "after" the child's birth. There is no time limit set by that section of
the statute. The Legislature did limit the application of the presumptions created in
sections (a)(1) and (a)(2) to "within 300 days" but did not use similar language in (a)(3).
That is significant.
There is language in the Act—K.S.A. 2021 Supp. 23-2205—that defines a "'parent
and child relationship' [to mean] the legal relationship existing between a child and the
child's biological or adoptive parents." Q.K. is not the biological father of the child. Thus,
the question is whether "the creation of a legal fiction [is] appropriate" for someone the
birth mother meets and marries after the birth of the child and for whom an actual
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biological link is impossible, but who otherwise would be a presumptive parent under
K.S.A. 2021 Supp. 23-2208(a)(3). See M.F., 312 Kan. at 344-45.
The M.F. court explained that a legal fiction was recognized in Frazier because
when a woman is fertilized through artificial insemination, any biological link to the
woman's partner is a legal fiction. M.F., 312 Kan. at 339. The court also noted that
recognition of the federally protected constitutional right to marry for same-sex couples
may affect how the KPA is applied. M.F., 312 Kan. at 337 (citing Obergefell v. Hodges,
576 U.S. 644, 675, 135 S. Ct. 2584, 192 L. Ed. 2d 609 [2015]). The court commented
that the "creation of these legal fictions was and remains the choice of our Legislature,
which has not reacted to 2013's Frazier or 2015's Obergefell with any relevant
amendment of the KPA." M.F., 312 Kan. at 339.
Kansas recognizes at least one other legal fiction of biological parenthood
described in In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1989). In Ross,
the court held that when there is a presumed father to a child born into a marriage, the
district court should consider the best interests of the child before ordering a genetic test
that may reveal someone else is the child's biological father. 245 Kan. at 601-02. In Ross,
the mother apparently brought the action because she did not like the custody
arrangement with her ex-husband and wanted to use it as a bargaining chip against the
suspected biological father to further her plan to have the child adopted by her current
husband. The presumption in Ross arose when the child was born. There was no
assertion, as there is here, that the mother's current husband was a presumptive father
under the KPA.
The Ross legal fiction does not help Q.K. here because A.M.'s presumption arose
before Q.K.'s presumption. Q.K.'s presumption arose in February 2018, when he signed
the child's birth certificate. Ross supports the idea that it is the intention at birth that
matters, and that paternity should not be later shifted to another person.
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We have found no Kansas case in which a court has applied the K.S.A. 2021
Supp. 23-2208(a)(3) presumption to stepparents in the manner that the district court did
here. In Ferguson v. Winston, 27 Kan. App. 2d 34, 37, 996 P.2d 841 (2000), this court
listed several reasons that the plaintiff was the child's father, including the (a)(3)
presumption because he was living together with the birth mother when the child was
conceived and born and he married the birth mother after the child's birth. The court cited
K.S.A. 1998 Supp. 38-1114(3) which is now K.S.A. 2021 Supp. 23-2208(a)(3). But the
circumstances in Ferguson were much different from the facts here. After all, K.K. did
not even know Q.K. until well after her child's birth.
Based on the plain language of K.S.A. 2021 Supp. 23-2208(a) with no statutory
time limit, and the undisputed evidence, we hold that Q.K. has established a presumption
of parentage under (a)(3)(B). He married K.K. after the birth of the child and, with his
consent, he is named as the child's father on the child's birth certificate. We reject A.M.'s
argument to the contrary.
Does the "time of birth" analysis used by the Supreme Court nullify Q.K.'s presumption?
We recognize that the Supreme Court's "time of birth" analysis in M.F. and W.L.
applies only to a determination of whether a parent has notoriously recognized maternity
or paternity under K.S.A. 2021 Supp. 23-2208(a)(4). But the court's concerns for
preserving "vital bonds" that develop between parent and child and for the stability of the
child do come into play in a case like this where A.M.'s parentage began at the birth of
the child and Q.K.'s claim arose several years later.
The reasonable way for a court to consider the "time of birth" analysis in a
stepparent case such as this is to consider that analysis as one more factor to be weighed.
After all, the M.F. court was establishing a policy of preserving the "vital bonds" that
begin to form at the time of birth and make incentives to create some stability for that
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child over surmountable relationship disappointments that are bound to occur. 312 Kan.
at 352.
Our ruling tracks the statutory language establishing a presumption based on a
marriage "after" the child's birth and requiring the district court to resolve conflicting
presumptions by determining which presumption "is founded on the weightier
considerations of policy and logic, including the best interests of the child." K.S.A. 2021
Supp. 23-2208(c). When in doubt, follow the statute.
This solution reflects the purpose of the Act. The law seeks to ensure that the legal
obligations, rights, privileges, duties, and obligations incident to the father and child
relationship are carried out. In re Marriage of Phillips, 274 Kan. 1049, 1057-58, 58 P.3d
680 (2002). Every child has an interest not only in obtaining support, but also in
inheritance rights, family bonds, and accurate identification of their parentage. Ross, 245
Kan. at 597. It is not in a child's best interests to undermine the presumption of paternity
absent any credible suggestion of paternity in another person. In re Parentage of Shade
ex rel. Shade, 34 Kan. App. 2d 895, Syl. ¶ 4, 126 P.3d 445 (2006). The Act can be used
as both a sword and a shield.
This is a case in which two competing presumptions arise and conflict with each
other. The district court determined which presumption "is founded on the weightier
considerations of policy and logic, including the best interests of the child." In other
words, the court followed K.S.A. 2021 Supp. 23-2208(c). We have found no fault in the
court's weighing of the two presumptions. In fact, A.M. has not claimed the district court
erred in making its best interests of the child analysis. We have found no legal error that
would induce us to reverse the court on this issue.
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The district court did not abuse its discretion in not following the guardian ad litem's
recommendation.
A.M. argues that the district court ignored the GAL's recommendation that it was
in the best interests of the child for her to be recognized as a parent.
We review a district court's best interests of a child determination for abuse of
discretion. Judicial discretion is abused if judicial action
• is arbitrary, fanciful, or unreasonable—if no reasonable person would have
taken the view adopted by the district court;
• is based on an error of law; or
• is based on an error of fact—if substantial competent evidence does not
support a factual finding.
State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, Syl. ¶ 4, 392 P.3d 68 (2017).
We agree with the holding of a panel of our court that stated that a GAL's
recommendation on the best interests of the child is something the district court must
consider, but it does not determine the case. See Guth v. Wagner, No. 103,398, 2010 WL
2978091, at *7 (Kan. App. 2010) (unpublished opinion). We think the district court did
consider the recommendation here.
The district court mentioned the GAL only once in its journal entry. The court
held that the GAL presented no evidence of problems in Q.K.'s and K.K.'s marriage or
their ability to coparent the child. At a hearing on A.M.'s motion to alter or amend the
judgment, the court asked about A.M.'s contention that the court did not consider the
GAL's recommendation in its decision. The court then reaffirmed its judgment. At a
subsequent hearing on the GAL's fees, the court emphasized the value that the GAL
provided to the case.
17
Simply put, the district court did not agree with the GAL's opinion, but that by
itself is not an abuse of discretion. It is apparent from the discussion in the later hearings
that the court did not ignore the GAL's opinion entirely. A.M. does not explain how the
district court erred in its best interests of the child analysis. She has shown no abuse of
discretion.
We find no equal protection violation here.
A.M. argues that the Act is not gender neutral and that she was held to a higher
standard than a similarly situated male would be held. She contends that she was at a
legal disadvantage because, before Obergefell she could not marry, and she could not
sign a voluntary acknowledgment of paternity at the time of the child's birth. She argues
that the court's recognition of Q.K.'s competing presumption because he was able to sign
the child's birth certificate violated equal protection because she could not sign the birth
certificate as a woman. In her words, she "was not able to just sign a sheet of paper and
create a presumption of parentage."
Whether a statute violates equal protection is a question of law over which
appellate courts have unlimited review. "The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution demands that '[n]o state shall . . . deny to
any person within its jurisdiction the equal protection of the laws.' The guiding principle
of the Equal Protection Clause is that similarly situated individuals should be treated
alike." State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005).
We are not convinced. This case is not a challenge to a law preventing two women
from signing a child's birth certificate or a voluntary acknowledgment of parentage, or
from marrying. Instead, this is a case in which A.M. was ultimately able to establish a
presumption of parentage based on K.S.A. 2021 Supp. 23-2208(a)(4). The presumptions
18
in K.S.A. 2021 Supp. 23-2208(a) are not ranked in order of importance and can be used
to establish both paternity and maternity of a child. K.S.A. 2021 Supp. 23-2220.
A.M. fails to show how her equal protection rights were violated because Q.K.
was also able to establish a presumption of parentage under K.S.A. 2021 Supp. 23-
2208(a)(3). As the courts have applied the Act, A.M. could have signed a piece of paper
that created a presumption of parentage under the written acknowledgment of maternity
presumption. See K.S.A. 2021 Supp. 23-2208(a)(4); M.F., 312 Kan. at 345. The district
court ultimately found that A.M. did establish a presumption under (a)(4). A.M. and Q.K.
were just as able to establish presumptions of parentage. Then the court's focus was on
the best interests of the child.
We find no equal protection violation here.
Affirmed.
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