The Kansas Supreme Court has unanimously ruled that a lesbian co-parent who entered into a written co-parenting agreement with her partner before her partner had a child through assisted reproductive technology (ART) can seek enforcement of the agreement in the Kansas courts, premised on a gender-neutral interpretation of the Kansas version of the Uniform Parentage Act. Ruling in Frazier v. Goudschaal on February 22, the court also found that the trial court had authority to make a property distribution between the women. However, the court also agreed that further fact-finding is necessary to determine the best interests of the child and an appropriate distribution of property before a final order in the case can be given.
Marci Frazier and Kelly Goudschall began their relationship in 1995. They first planned to start a family with children by each becoming pregnant and bearing a child through ART, but because Frazier was unable to become pregnant they agreed that Goudschaal would bear two children, who were born in 2002 and 2004. They signed a coparenting agreement before the first child was born, and another prior to the birth of the second child. The agreements identified Frazier as a “de facto parent” whose “relationship with the children should be protected and promoted,” and that the parties intended “to jointly and equally share parental responsibility” including financial responsibility and joint determination of “major decisions” affecting the children. In the event that the women separated, the agreements provided that the mother with physical custody would “take all steps necessary to maximize the other’s visitation.” They also executed consent for medical authorization and a durable power of attorney for health care decisions, and made wills naming each other as the children’s guardians.
They all lived together as a family unit for several years, but things started to break down and by September 2007 the women were occupying separate bedrooms. Goudschaal moved out with the children in January 2008, and in July of that year began decreasing Frazier’s contact, limiting it to one day a week and alternate weekends. In October 2008, Goudschaal informed Frazier that she was moving with the children to Texas to take a new job. Frazier then filed suit in Johnson County (Kansas) District Court, seeking to enforce her rights under the co-parenting agreement and for a division of property.
The District Court found that it had jurisdiction, issuing an order dividing all of the women’s property equally, awarding joint legal custody of the children, designating Goudschaal as residential custodian, establishing unsupervised parenting time for Frazier, and ordering Frazier to pay child support. Goudschaal appealed, asserting that the court had improperly allocated some of her personal property to Frazier and that the court lacked jurisdiction and authority to make a custody and parenting time award to an “unrelated third person.”
The court, following the lead of state supreme courts in California and New Mexico (see Elisa V. v. Superior Court, 37 Cal.4th 108 (2005) and Chatterjee v. King, 280 P.3d 283 (N.M. 2012)), ruled that the Kansas courts do have jurisdiction over all the issues raised in this case, but that the trial court needed to do more fact-finding concerning the best interest of the children. The court also ruled that the trial court erred in the method it used for allocating property rights, so the case was remanded with directions to the trial court for more fact-finding.
The most significant part of the ruling is undoubtedly the court’s determination that the Kansas version of the Uniform Parentage Act does give the court jurisdiction in cases of this type to entertain an action by the non-adoptive second parent to enforce a pre-birth co-parenting agreement. In some states, courts have held that any private pre-birth agreement concerning custody and visitation is not binding on the court on grounds of public policy, in light of the state’s parens patriae role as protector of the interests of the child. Rejecting this approach, Justice Lee A. Johnson wrote that “the coparenting agreement before us is not rendered unenforceable as violating public policy merely because the biological mother agreed to share the custody of her children with another, so long as the intent, and effect, of the arrangement was to promote the welfare and best interests of the children.” The court found that “the coparenting agreement designates Frazier as a ‘de facto’ parent,” and the Kansas statute “permits the creation of presumptive motherhood through written acknowledgment.”
The court rejected Goudschaal’s argument that this interpretation of the statute would violate her federal constitutional rights as the biological mother of the children. She rested her argument primarily on Troxel v. Granville, 530 U.S. 57 (2000), in which the Supreme Court struck down a Washington state statute that allowed any person to petition the court for child visitation, even over the objection of a fit biological parent, grounding the parent’s right in the due process clause of the 14th amendment. The right at issue is the fit parent’s right, as an aspect of liberty protected by the due process clause, to decide upon the “care, custody, and control of her children.”
In this case, wrote Justice Johnson, Goudschaal had exercised that right “when she entered into the coparenting agreement with Frazier. If a parent has a constitutional right to make the decisions regarding the care, custody, and control of his or her children, free of government interference,” he wrote, “then that parent should have the right to enter into a coparenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.” Thus, “parental preference” for custody, as specified in the statute, can be waived and, “as Frazier points out, the courts should not be required to assign to a mother any more rights than that mother has claimed for herself.” Indeed, the court said that “the children were third-party beneficiaries of that contract,” and their interest in maintaining a relationship with both of their mothers was also an important factor in the case. “Denying the children an opportunity to have two parents, the same as children of a traditional marriage, impinges upon the children’s constitutional rights,” wrote Johnson. “Here, the agreement effects equality by giving the children two parents. Moreover, the UPA and, in turn, the KPA are gender-neutral, so as to permit both parents to be of the same sex.”
However, the court found that the district court, which “was exploring new territory in this case,” had acted without sufficient evidence on the best interests of the children. The court noted that there was no explanation in the record for evidence that “the children allegedly began experiencing problems after recommencement of visitation with Frazier.” The court decided it was appropriate to send the case back for further exploration of this issue, and for the appointment of an attorney to represent the children’s interests in that proceeding.
Turning briefly to the property division issue, the lack of same-sex marriage in Kansas was salient. The court decided that the trial judge’s “blanket finding that the parties intended to share everything” was inappropriate, directing that on remand “the court should conduct an asset-by-asset determination of whether each item was jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein.” Fact-finding remains to be done before a final property distribution can take place.
Dennis J. Stanchik of Olathe, Kansas, represents Frazier. T. Bradley Manson of Manson & Karbank, Overland Park, argued the appeal for Goudschaal. Amicus briefs, all in support of Frazier, were filed by a group of LGTB/civil liberties groups (ACLU, NCLR), the Washburn University Law School’s Children and Family Law Center, and the National Association of Social Workers.
I should clarify that the Washburn brief, while urging enforcement of the agreement, was not strictly speaking denominated as in support of either party, although it had the effect of supporting Frazier’s desired outcome.