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Federal Court Enjoins Enforcement of Mississippi’s Ban on Adoptions by Married Same-Sex Couples

Posted on: April 1st, 2016 by Art Leonard No Comments


Finding that the ability of a couple to adopt a child is a “benefit” of marriage, U.S. District Judge Daniel P. Jordan, III, ruled on March 31 in Campaign for Southern Equality v. Mississippi Department of Human Services, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss.), that Mississippi’s statutory ban on adoptions by same-sex couples probably violates the 14th Amendment under the Supreme Court’s ruling in Obergefell v. Hodges.  Although Judge Jordan found that some of the plaintiffs and many of the defendants had to be dismissed from the case on grounds of standing and jurisdiction, he concluded that other plaintiffs did have standing to challenge the law in court, and that the Executive Director of the state’s Department of Human Services was an appropriate defendant to be ordered on behalf of the state not to enforce the ban while the lawsuit is pending.  The ruling came as the state’s legislature was putting finishing touches on a so-called religious-freedom bill intended to protect persons or businesses with religious objections to same-sex marriage or sex relations between anyone other than a man and a woman united in marriage from any adverse consequences at the hand of the government or any liability for refusing to provide goods or services in connection with same-sex marriages.  The constitutionality of such a measure is much disputed in light of Obergefell.

Among the plaintiffs are same-sex couples who sought second-parent adoptions of children born to one member of the couple by her same-sex partner, and same-sex couples who sought to adopt children not biologically related to either of them through the foster care system. The court found that one of the couples was not married at the time the complaint was filed, and dismissed them from the case for lack of standing, since the state denies adoptions to all unmarried couples, whether same-sex or different-sex.  However, the court concluded that all of the remaining couples had standing to challenge the statutory ban in court, since an employee of the Department had told one of the couples in response to an inquiry about the foster-care route that the Department would continue enforcing the ban despite the Supreme Court’s June 26, 2015, ruling in Obergefell v. Hodges, which held that states are required under the 14th Amendment to allow same-sex couples to marry and to accord official recognition to same-sex marriages contracted in other jurisdictions. The organizational plaintiffs, Campaign for Southern Equality and Family Equality Council, met the test for associational standing by alleging that they had members who were married same-sex couples in Mississippi with interests in adoption similar to the named plaintiffs.

The court found, however, that neither the governor nor the attorney general were appropriate defendants, since neither of those state officials plays any role in administering the adoption system. On different grounds, the court dismissed from the case several judges who were named as defendants, finding that judges whose role is to adjudicate cases are not “adverse parties” to plaintiffs seeking to invalidate a state statute.  The Department of Human Services could not itself be sued, as the 11th Amendment as construed by the Supreme Court gives state agencies general immunity from being sued by citizens of the state in federal court for violations of constitutional rights.  However, the Supreme Court has allowed a “work around” for that constitutional barrier, by allowing suits against the officials charged with the direction of an agency that plays a role in the enforcement of a challenged statute.  Judge Jordan found that the Department plays a significant role in administering the foster care system and in investigating adoption petitions and making recommendations to the courts, and thus the Director of the Department would be an appropriate defendant.  While noting that the Department has stated recently that it would not stand in the way of a same-sex couple adopting a child, the court found there was sufficient evidence in the record that same-sex couples continue to be discouraged from applying for the foster care program to discount this statement for purposes of determining who can be sued in this case, stating that “the record before the Court indicates that [the Department] has interfered with same-sex adoptions after Obergefell.”

Turning to the merits of the plaintiffs’ motion for a preliminary injunction, the court had to confront the doctrinal mysteries of Justice Anthony Kennedy’s opinion for the Supreme Court in Obergefell.  While that opinion makes clear that the right to marry as such is a fundamental right under the Due Process Clause of the 14th Amendment, and that exclusion of same-sex couples from marrying violates that fundamental right, the Court never directly addressed the question of what level of judicial review might be appropriate for claims that a same-sex couple is being denied any particular benefit of marriage, which would determine what kind of justification a state would have to present for treating same-sex couples differently from different-sex couples.

“While the majority’s approach [in Obergefell] could cause confusion if applied in lower courts to future cases involving marriage-related benefits,” wrote Jordan, “it evidences the majority’s intent for sweeping change.  For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue.  In the equal-protection context, that would require strict scrutiny.  But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a ‘unified whole.’  And it further states that ‘the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefit afforded to opposite-sex couples %and% are barred from exercising a fundamental right.’”

“Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class,” Judge Jordan continued. “Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed.  It did not.  Instead, it seems clear the Court applied something greater than rational-basis review.  Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word ‘rational.’”  Thus, from a doctrinal standpoint, the Obergefell opinion is in some sense incomplete.  But it was not puzzling enough to deter Judge Jordan from moving ahead to the logical result.

“While it may be hard to discern a precise test,” he wrote, “the Court extended its holding to marriage-related benefits – which includes the right to adopt. And it did so despite those who urged restraint while marriage-related benefits cases worked their way through the lower courts.  According to the majority, ‘Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.’”  Judge Jordan noted Chief Justice John Roberts’ response to this point in his dissenting opinion, including his contention that as a result of the Court’s ruling “those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriage between same-sex couples.”  (In all these quotations from Obergefell, the emphases were added by Judge Jordan.)

“In sum,” wrote Jordan, “the majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’ It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits – expressly including the right to adopt – would then conclude that married gay couples can be denied the very same benefits.”  The conclusion is obvious: Obergefell decides this case.  “The majority of the United States Supreme Court dictates the law of the land,” wrote Jordan, “and lower courts are bound to follow it,” which means the Mississippi statutory ban on same-sex couples adopting children violates the Equal Protection Clause.

In his March 31 decision Judge Jordan was not rendering a final ruling on the merits, but rather responding to the plaintiffs’ motion for a preliminary injunction against enforcement of the statutory ban while the case continues. The first step of determining whether plaintiffs can get their injunction requires the court to determine whether they are likely to win on the merits, and the foregoing discussion was directed to that point.  Next Jordan considered whether allowing the ban to continue would inflict irreparable harm on the plaintiffs, which is simply answered by noting that monetary damages could not compensate a delay in being allowed to adopt a child and that a denial of equal protection of the laws is always considered an irreparable injury.  Since the current position of the Department is that “it will not impede an otherwise valid gay adoption,” it was clear that the “balance of harms” between the parties favors plaintiffs, as does the factor of how the public interest would be affected by granting or denying an injunction.  Thus, the court concluded that an injunction should be issued.  “The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5),” ordered the court.  There was no immediate word whether the state would attempt to appeal this grant of preliminary relief.  Perhaps the court’s opinion will suffice to convince state officials that “marriage equality” as decreed by the Supreme Court means equality in all respects, invalidating any state law or policy that would treat same-sex married couples differently from different-sex married couples.

Since Obergefell dealt with benefits of marriage and did not rule on the rights, if any, of unmarried same-sex couples, it would not provide a direct precedent concerning attempted second-parent adoptions or adoptions out of foster care by unmarried same-sex couples, which is why one of the plaintiff couples was dismissed from the case, even though they informed the court that they had married after the complaint was filed.  And it would be difficult to argue that unmarried same-sex couples are “similarly situated” to married couples in relation to the adoption of children, at least for purposes of an Equal Protection challenge.  Everybody involved in the case, it appears, agrees that the sole issue is whether the challenged statute can be used to deny married same-sex couples a benefit afforded to married different-sex couples.

Lead attorney for the plaintiffs is Roberta “Robbie” Kaplan, a partner in the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, who also represented Campaign for Southern Equality in its successful legal challenge to Mississippi’s ban on same-sex marriage and Edith Windsor in her successful legal challenge to Section 3 of the Defense of Marriage Act.

The Power of Full Faith & Credit and a Jury

Posted on: September 22nd, 2014 by Art Leonard No Comments

Putting together the power of the U.S. Constitution’s Full Faith and Credit Clause and a verdict by a jury who got to see the parties testify, a Texas gay co-parent has preserved his status as “sole managing conservator” of the child he and his former partner/spouse conceived with the help of a gestational surrogate.  Herein lies a somewhat complicated tale providing new evidence of the extraordinary developments in LGBT family law over the past few years.  The case is Berwick v. Wagner, 2014 Westlaw 4493470.

Jerry Berwick and Richard Wagner began their relationship with each other in 1994.  They were legally married in Canada in 2003, and registered as domestic partners in California in 2005, but lived together in Houston, Texas, beginning in 1997.  They wanted to have a child through gestational surrogacy, and made a gestational surrogacy agreement with a married California woman in 2005.  A donated egg was fertilized with Berwick’s sperm and the resulting embryo was implanted in the surrogate, who gave birth to a son, called C.B.W. by the Texas Court of Appeals in Houston in its September 11 decision affirming the jury verdict.  Following a procedure commonly used in California, the men filed a court action before the child was born, through which a California court entered an order titled “Judgment of Paternity,” declaring that Berwick and Wagner were each to be a “legal parent” of C.B.W., ordering the hospital to list the two men as the child’s parents on the birth certificate, and declaring, consistent with the surrogacy agreement, that neither the birth mother nor her husband were legal parents of C.B.W.  After the child was born, Berwick and Wagner brought him back to Houston where they lived together as a family for several years, until Berwick ended his relationship with Wagner.

Berwick “got religion,” decided he wasn’t really gay, and ended up marrying a woman whom he met on-line.  When Berwick ended the relationship, Wagner took action to preserve his relationship with his son, filing a Suit Affecting the Parent Child Relationship in the Texas trial court in Harris County, seeking an order that Wagner and Berwick be appointed “joint managing conservators” of C.B.W.  This would give them equal parental rights, consistent with the California court order.  Berwick responded by arguing that as the biological father he should be appointed sole managing conservator.  He contended that Wagner lacked standing to seek custody because he was not “biologically related” to the child.

In a separate legal proceeding provided by Texas law, Wagner registered the California “Judgment of Paternity” in the Harris County court, and the trial court “confirmed” the California order, thus recognizing Wagner for purposes of Texas law as a legal parent of C.B.W., thus giving him standing to seek appointment as a managing conservator of the child.  Berwick appealed, the court of appeals affirmed the trial court’s order, and the state supreme court refused to review the case.

Thus, the original suit filed by Wagner went to trial.  In Texas, these cases are tried before a jury, which is charged with deciding who should be appointed as conservators for the child.  The jury decided that Wagner should be the sole managing conservator, appointing Berwick to the lesser status of possessory conservator, meaning he would be entitled to child visitation and some participation in decision-making for the child.  However, Wagner, the non-biological father, emerges as the main custodian of the child with the greater share of decision-making authority.

Berwick appealed this decision, as well as the trial court’s rejection of Berwick’s request that C.B.W.’s name be changed to omit the W.

In affirming the ruling, the court of appeals gave great weight to the full faith and credit clause of the Constitution.  A California court with appropriate jurisdiction of the parties had issued a judgment naming both men as legal parents of the child.  After quoting the federal constitutional provision, Chief Justice Sherry Radack wrote for the court, “Texas courts have thus consistently recognized that the ‘full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.'”

“This full faith and credit has been repeatedly applied in Texas to other state’s adjudication of parentage,” Radack continued.  Referring to the California judgment that Wagner had registered with the Harris County court, Radack wrote, “This Court has already held that the judgment was properly registered in Texas, and that the California court had jurisdiction to enter the judgment.  The trial court correctly decided that this final, unappealed judgment adjudicating Wagner as C.B.W.’s parent — a judgment entered at the request of Berwick, Wagner, and C.B.W.’s surrogate mother and her husband — is entitled to full faith and credit.  And none of the arguments Berwick advances in support of his position that the trial court erred are supported under Texas law.”

Berwick was relying primarily on a public policy argument, grounded in the contention that a child in Texas can have only one legal father at a time and that surrogacy agreements under a Texas statute are unenforceable unless the intended parents are a married heterosexual couple.  However, wrote Radack, “Berwick cites no authority for deeming a foreign paternity judgment to be so repugnant to Texas policy to render it void and subject to collateral attack.  And Berwick’s arguments ignore the strong state public policies favoring stability and finality in matters of parentage evidenced by numerous statutes.”

The court also found that the question whether Berwick was the child’s biological father was essentially irrelevant to the outcome, rejecting his contention that as biological father he was solely entitled to custody of the child.  Since the Texas courts recognize Wagner as a parent of the child through operation of the California judgment, Berwick’s biological tie to the child is irrelevant to this lawsuit, because all legal parents are treated equally, whether they became parents through biology, adoption, or some other legal process.  In a custody dispute between legal parents, the court’s job is to decide what is in the best interest of the child, and Texas, unlike most other states, gives that task to a jury.  The court of appeals found that the trial record was full of evidence that would support the jury’s determination that Wagner would be the preferable managing conservator, since he was more likely to preserve the child’s relationship with his other father, while Berwick (and his wife) were hostile to Wagner playing any parental role in the child’s life.

“Specifically,” wrote Radack, “the jury had already heard about Berwick telling Wagner that he would never work with him to co-parent because Wagner needed to move on and ‘get his own family,’ ‘his own little boy.’  The jury had also heard recordings of Berwick on different occasions telling Wagner that C.B.W. is ‘not your child,’ ‘not your son,’ accusing Wagner of ‘destroying my child,’ and mocking Wagner for being ‘in denial,’ and pretending that C.B.W. is actually his son.”

Berwick also attacked the verdict by arguing that several potential jurors were excluded as victims of “religious discrimination.”  They were questioned about their views about the parties’ sexuality and marital status, and several potential jurors made statements suggesting that they could not, in the opinion of the trial court, give an unbiased consideration to the case.  “We conclude that the trial court did not abuse its discretion in finding these jurors to be disqualified,” wrote Radack.  “The trial court did not strike every panel member who indicated they might have religious objections to homosexuality; rather, the court struck only those jurors who unequivocally indicated that they held such strong convictions that they could not base their decisions on the law and evidence.”

The opinion included lengthy analysis of the trial record, from which the court concluded that “there is factually sufficient evidence to support the jury’s finding that appointing Wagner as sole managing conservator is in C.B.W.’s best interest,” and rejecting Berwick’s argument that the trial judge erred by denying Berwick’s request to change C.B.W.’s name to eliminate Wagner as his surname.  “Given that C.B.W.’s legal name was established by the California court at Berwick’s request and that Berwick does not argue here that a name change is in C.B.W.’s best interest,” wrote Radack, “we cannot conclude that the trial court erred.”

Wagner is represented by attorney Ellen A. Yarrell.  Berwick is represented by Austin R. Nimocks, a name that will be familiar to those who have been following the federal appellate arguments over marriage equality, since he is one of the attorneys who has been arguing against marriage equality in the courts, and is generally associated with religious opposition to same-sex marriage.

Indiana Appeals Court Won’t Let Lesbian Partner Sue for Custody, but Allows Visitation Claim to Continue

Posted on: November 5th, 2013 by Art Leonard No Comments

A three-judge panel of the Court of Appeals of Indiana, pointing out that it was bound by prior state supreme court precedent, rejected a claim by a lesbian co-parent that the trial court erred in not awarding her joint custody of the child she was raising with her former partner.  However, the court said that she should be allowed to seek visitation rights, finding that there was no binding precedent against this and it would be in the best interest of the child to allow such a case to proceed.  A.C. v. N.J., 2013 Ind. App. LEXIS 545 (Oct. 31, 2013).

The scenario in this case is fairly typical for a dispute between former lesbian partners about child custody and visitation.  N.J. (the birth mother) and A.C. (the birth mother’s former partner) had a commitment ceremony in 2007 after they had been living together for two years.  They also decided to have a child, and N.J. became pregnant through donor insemination and bore the child in April 2008.  A.C. was present at the child’s birth.  The two women and the child lived together as a family unit for over two years, according to the opinion for the court by Judge Ezra Friedlander, until they terminated their relationship in August 2010, when the child was just over two years old.  N.J. allowed A.C. to have frequent visitation with the child for the next nine months, but then cut off visitation.  A.C. has not seen the child since October 2011.

A.C. filed a petition in court in January 2012, seeking custody and visitation.  At the subsequent hearing, she made clear she was seeking joint custody, not sole custody, as she did not contend that N.J. was an unfit mother.  A.C. relief on the parties’ intent at the time the child was conceived that they would both be parents of the child, and her role as a parent until N.J. cut off contact, arguing that it was in the child’s best interest to continue that relationship.

The trial court threw out the case, finding that A.C. was not a legal parent and did not have standing to seek custody or visitation.

The appeal was fought on three issues: whether the trial court corrected refused to enforce an agreement between the women that A.C. would be the child’s “second parent”; whether the trial court erred in denying A.C.’s petition for joint custody; and whether the trial court erred in finding that A.C. did not have standing to seek visitation.

The court provided a detailed review of the history of Indiana cases on same-sex parent claims, pointing out that the appeals court had been reversed by the state’s supreme court in the past when it had ruled to let a co-parent seek custody, and that the legislature had failed to respond to the court of appeals’ call for legislation on the subject to clarify the rights of parties who were forming relationships that were not legally recognized and having children within those relationships.  After referring to that request for guidance, Judge Friedlander lamented the lack of response from the legislature.

“In the years that have passed since then,” wrote Friedlander, “none has been forthcoming.  The existing statutory framework does not contemplate the increased use of assisted reproductive technologies.  Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child.  That deficiency is exacerbated by the growing recognition of less traditional family structures.  Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is.  We feel the vacuum of such guidance even more acutely now than we did eight years ago. . .  Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time.  They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in  which we have arrived.”

The court decided that in the absence of precedent, as well as the absence of any written agreement concerning custody or visitation, the trial court did not err in failing to enforce the agreement that A.C. alleged the women had made.  Additionally, it found that the trial court did not err in rejecting A.C.’s petition for joint custody, noting the lack of precedent for ordering joint custody between a legal parent and a legally unrelated third-party, and the demanding test that the supreme court had adopted for awarding sole custody to an unrelated third party: “Before placing a child in the custody of a person other than the natural parent, a trial court must be convinced by clear and convincing evidence that the best interests of the child require such a placement.  The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child.”  The supreme court noted a “presumption” that a natural parent should have custody.  “A generalized finding that a placement other than with the natural parent is in a child’s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.”

The court of appeals found that the trial judge had relied on this standard, and pointed out that A.C. was not arguing that the trial court’s conclusion that A.C. had failed to rebut the presumption in favor of the N.J. as the “natural parent” was clearly erroneous.

Finally, however, in considering the visitation issue, the court noted that it was actually confronting an issue that might be of first impression at the appellate level in Indiana.  “At the outset,” wrote Judge Friedlander, “we recognize that there are good reasons to limit the class of individuals with standing to seek third party visitation.  After all, parental rights are of constitutional dimension, and it is presumed that a fit parent acts in the child’s best interests in making decisions concerning visitation with third parties.”  But, pointing to prior cases involving third party visitation (but not same-sex co-parents), the court pointed out, “this court has acknowledged that a child’s interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent’s right to direct the child’s upbringing.”  The court did not see that prior cases allowing stepparents to seek visitation should be seen as setting the outer boundary for such claims.  “It appears to us that the Court viewed a stepparent relationship as a strong indication that a custodial and parental relationship exists.  But surely custodial and parental relationships may exist with third parties other than stepparents,” the court continued.  “Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship.  This is so because the parties originally intended for the biological mother’s partner to fulfill the role of the child’s second parent and actively encouraged the development of a parental bond between the partner and the child.”

The court concluded that allowing A.C. to seek visitation would not contravene prior precedent.  “Thus, in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child.  This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances — it must still be established that visitation is in the child’s best interests.”  Thus, the court of appeals reversed the trial court only on the issue of visitation, and sent the case back “to reconsider Partner’s request for visitation under the standard set forth in our third-party visitation cases.”

A.C. is represented by Lesa C. Duvall, Stephanie L. Bloomer, and Kristin D. Caldwell, law firm partners in Indianapolis.  Amy D. Griner represents N.J.

Kansas Supreme Court Recognizes Right of Same-Sex Co-Parent to Enforce Parenting Agreement

Posted on: February 26th, 2013 by Art Leonard 1 Comment

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.