Determining Parentage in Kansas

A Guide by Ronald W. Nelson

I.            How is the parent child relationship established in Kansas?

K.S.A. 23-2207 (2011) provides that the parent-child relationship is established for a mother “by proof of her having given birth to the child[, in other ways provided in the Kansas Parentage] act”[1] or by adoption.[2]

K.S.A.23-2207 (2011) provides that the parent–child relationship is established for a father by a final judgment of paternity under the Kansas Parentage Act, by adoption, or voluntary acknowledgement of paternity meeting the requirements of K.S.A. 23-2204 (2011) (unless the voluntary acknowledgment is revoked under K.S.A. 23-2209 (2011)).

Usually parents of a child born outside marriage agree who are the parents and they both desire to establish parenting and support rights.  But there are also many reasons why parents don’t agree upon who are the parents and why the parent-child relationship is sought established – and that is where the complexity arises in domestic relations cases. And as in all other human endeavors, the complexity that occurs constantly rises to new heights.

The Kansas statutes to determine parentage don’t only apply to “paternity.” The Kansas Parentage Act specifically states that it is used to determine either paternity (fatherhood) or maternity (motherhood). The statute does not require that a court determine that a child has one father and one mother. The Kansas appellate courts, in series of cases decided in 2013, found that the Kansas Parentage Act applies to establish parenting rights for same-or-opposite sex couples when an alleged parent – whether actually the child’s “biological parent” or not, “notoriously or in writing recognizes” that person’s parentage of the child.[2a]

Rights of Child Custody.

Every “parent” has a right to “custody” of his or her own child under Kansas law. Kansas statutes provide:

K.S.A. 38-141 (2000):

(a) As used in this section:

(1) “Child” means a person under 18 years of age; and

(2) “parent” means and includes a natural parent, an adoptive parent, a stepparent or a guardian or conservator of a child who is liable by law to maintain, care for or support the child.

(b) It shall be the public policy of this state that parents shall retain the fundamental right to exercise primary control over the care and upbringing of their children in their charge. It is further the public policy of this state that children shall have the right to protection from abuse and neglect.

(c) Nothing in subsection (b) shall be interpreted to expand, diminish or in any way alter the scope of rights of parents or children to the extent such rights exist as of the effective date of this act. [July 1, 1996]

(d) Any parent may maintain a cause of action in state court or in any court of competent jurisdiction for claims arising under the principles established in subsection (b). Any person authorized by law to act on behalf of a child may maintain a cause of action in the name of such child in any court of competent jurisdiction for claims arising under the principles established in subsection (b).

History: L. 1996, ch. 229, sec. 159; July 1.

 

II.            Child Support Liability

One of many reasons why parentage is sought is for the purpose of establishing an enforceable child support obligation.

Although every parent has an obligation to support his or her children, that obligation is undefined until a court or agency determines the extent of the obligation. In Kansas, child support obligations are established by court order (although a promise of support is enforceable by court order according to its terms but subject to limitations in K.S.A. 23-2209 (2011)(d)[3]).

K.S.A. 23-2215(c) (2011) provides that whenever a court determines that a person is the parent of a child, that court must make provision for the child’s support and education, including the necessary medical expenses incident to the child’s birth. Because of this interplay between state and federal laws, a kind of “absolutely parentage liability” arises.

Follow the Sperm

Whenever the paternity of a child is at issue and the child does not have a “presumed father,”[4] the court must order genetic testing (if testing is requested or deemed appropriate by the court).[5] If testing indicates that the man tested is likely the father of the child within a probability of 97% or greater, then that man is the presumed father.[6] When the presumption of parentage arises (and there are no conflicting presumptions or court orders establishing paternity in another man), that presumption may only be rebutted by clear and convincing evidence.[7] If the presumed father fails to rebut the presumption, then the court must find him as the legal father. But rebutting the presumption does not relieve the formerly presumed father from a determination of parentage; it only shifts the burden of proof to the party claiming his paternity.[8]

Significantly, when paternity is presumed by reason of genetic testing the defenses to the presumption must relate to the testing, rather than how the child was conceived (except for the statutory exception for the donor of semen[9]). Consent by the man whose seamen resulted in conception is not required to find him the biological and legal father of a child – even if the act resulting in conception was a criminal act.[10] The courts instead look at the duty that all parents have to support their children – without regard to the way the child was conceived: “the mother’s alleged fault or wrongful conduct is irrelevant….The primary purpose of a paternity proceeding is to protect the welfare of the illegitimate child and, accordingly the mother’s conduct should have no bearing on the father’s duty of support nor upon the manner in which the parents’ respective obligations are determined.”[11]

III.            Conflicting Presumptions Arising from Marriage, Relationship, and Consent

Many circumstances give rise to presumptions of paternity:

(1)  The man and the child’s mother are married to each other when the child is born.

(2) The man and the child’s mother were married and the child was born within 300 days after the marriage terminated by either death or the filing of a decree of annulment or divorce.

(3) The man and the child’s mother (A) attempted to enter into a solemnized marriage (B) in compliance with applicable law (C) before the child’s birth; but (i) the marriage is void and the child was born within 300 days after the termination of cohabitation OR (ii) the marriage is voidable and the child was born within 300 days after termination of the marriage by either death or the filing of a decree of annulment or divorce.

(4) After the child’s birth, the man and the child’s mother married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and (A) the man has acknowledged paternity of the child in writing; (B) with the man’s consent, the man is named as the child’s father on the child’s birth certificate; and (C) the man is obligated to support the child under a written voluntary promise or by a court order.

(5) The man notoriously or in writing recognizes paternity of the child, which may include (but is not limited to) a voluntary acknowledgment under K.S.A. 23-2223 (2011) or K.S.A. 65-2409a.

(6) Genetic test results indicate that the man is the father of the child by a probability of 97% or greater.

(7) The man has a duty to support the child under an order of support regardless of whether the man has ever been married to the child’s mother.

Because of the large number of ways that a presumption of paternity may arise, there are many cases when conflicting presumptions arise when determining paternity. For example, conception arising from an extramarital affair, conception during marital separation or pendency of divorce, and admission of paternity not knowing the mother had another partner who actually fathered the child frequently occur.

The Kansas Parentage Act attempts to resolve conflicting presumptions by providing that “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.”[12] But determining what is the “weightier” consideration in cases of paternity proves extremely difficult in the modern world. Additionally, because a conflict may exist only because of the parties’ suspicions about the “true” state of facts, the Kansas Supreme Court put into place procedures that guard against the rise of conflicting presumptions when the child’s best interests would not be served by those suspicions.[13] “The mere filing of a paternity action does not automatically imply that the action is in the child’s best interests. A court must reach this conclusion independently based on the facts in the record.”[14]

Instead, Ross requires that the court consider the child’s best interests before allowing genetic testing that may create a presumption that will conflict with an existing presumption. In deciding what are the child’s best interests, the trial court must evaluate the child’s physical, mental, and emotional needs as well as other important factors.[15] “The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child.”[16]

Thus, in the Ross case, the Kansas Supreme Court upheld the trial court’s decision that the child’s best interests required that the court not consider genetic test results when the mother’s husband had acted as the child’s father and desired to continue his role as father and absent the genetic testing, no “credible suggestion” of paternity existed.[17]

Ross applies to any case in which a child’s parentage is at issue and there is a claim that more than one man may be the child’s legal father.[18] Recent cases have identified considerations the courts should weigh when deciding Ross issues:

“The best interests of the child test is multi-faceted and complex. The full scope of the factors to be considered varies from case to case. In general terms, it recognizes that “every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of [his or her] parentage.” Ross, 245 Kan. at 597, 783 P.2d 331. The court can properly consider such factors as the rights and relationships the child has through the presumed father that might be lost by a determination of parentage, the willingness of the biological father to assume the responsibilities of parentage, and whether there is a compelling medical need to determine paternity. Ross, 245 Kan. at 601, 783 P.2d 331. The motive of the party bringing the paternity action may be relevant, and indeed of critical importance, but only to the extent it affects the best interests of the child. Ross, 245 Kan. at 597, 783 P.2d 331; see Jensen, 252 Kan. at 79, 843 P.2d 191. Whether a child’s best interests will be served by a determination of paternity depends on such factors as the notoriety of the child’s situation in the community and the likely effect a determination of parentage will have on the child’s existing relationships. The court can also consider the child’s basic interest in simply knowing who his or her biological father is.”[19]

“In determining whether it is in the child’s best interests to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage already exists in the child’s mind, and any other factors which may be relevant in assessing the potential benefit or detriment to the child.”[20]

“[T]he court will look to the set of circumstances which will afford the child the most positive environment possible under the circumstances…. [T]he review of the [888 P.2d 888] circumstances will be made from the perspective of the child: that that child, under the present and foreseeable circumstances, will need to maximize his or her opportunities for a successful life, even if such an approach is to the detriment of individuals who occupy the status of natural parents.”[21]

At the same time, the Supreme Court has also said that, “It is inconceivable to us that a child would not have a due process right in the determination of his or her parentage.”[22]

Recently, “take-home genetic tests” have become available allowing parties to “mail-in” their suspicions after surreptitiously obtaining genetic samples leading to more complex issues for the courts after “the barn door has been left open.” This was an issue in a recent unpublished Court of Appeals decision, in which the Court opined that merely because the parties obtained genetic testing does not obligate Kansas courts to accept those results. Instead, Kansas courts are bound to determine the child’s best interests in the proceedings before it – especially when a psychological parent exists.[23]

Merely because the parties obtained genetic tests outside the court’s orders does not obligate Kansas courts to accept those results.

 

IV.            Withdrawing from Parentage

Since 1984, federal law has required the States to consider as a legal finding of paternity all voluntary acknowledgements of paternity, limiting the ability of the signor to rescind the acknowledgments to a date no later than 60 days after the acknowledgement was signed or the date of an administrative or judicial proceeding about paternity in which the signor is a party, whichever is earlier.[24] Procedures to ratify an unchallenged acknowledgement of paternity are neither required nor permitted.[25]

Challenges to assumed or acknowledged paternity are, however, not uncommon. And although a few states have enacted legislation allowing fathers to retroactively withdraw their parentage of a child, Kansas has not, holding firm to the dictates of the federal law but allowing a challenge to the “voluntariness” of an acknowledgement of paternity. One recent case, however, stretches that rule. In State of Kansas ex rel. SRS v. Kimbrel, the Court decided a case in which after receiving a petition for child support filed by the SRS, Kimbrel asserted that he was not, in fact, the father of the child although a signed acknowledgement of paternity existed. Ruling in his favor, the Court of Appeals found that a district court may determine that the presumption of paternity is rebutted and that the father-child relationship is ended, based upon genetic testing allowed under Ross that clear and convincing evidence proves a man who has executed a voluntary acknowledgment of paternity is not the biological father of the child.

 

V.             Jurisdictional Issues in Parentage Litigation.

The power to decide issues involved in a parentage action is divided into two separate issue depending whether the ultimate issue is child support – addressed in the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-36,101 et seq. (2011) – or child custody – addressed in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 23-37,101 et seq. (2011)

A. Uniform Interstate Family Support Act (UIFSA)

K.S.A. 23-36,701 (2011) provides that a Kansas court may determine that a person is the parent of a child and make an order for child support against that person if:

(a)   The individual is personally served with notice within this state;

(b)   the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(c)   the individual resided with the child in this state;

(d)   the individual resided in this state and provided prenatal expenses or support for the child;

(e)   the child resides in this state as a result of the acts or directives of the individual;

(f)   the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;

(g)   the individual asserted parentage in the putative father registry maintained in this state by the secretary of the department of social and rehabilitation services; or

(h)   there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

The person does not need to live in Kansas  in order to be subject to Kansas courts power to decide parentage. It is enough that any one of the bases for jurisdiction is met for a Kansas court to determine parentage. If Kansas courts have jurisdiction under any of these bases, it can also make an enforceable child support order against that person.
B. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
K.S.A. 23-37,201 (2011) provides that Kansas may make an initial determination of child-custody, parenting time and visitation only if:
(1)   This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2)   a court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under K.S.A. 23-37,207 or 23-37,208 and amendments thereto, and:

(A)   The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B)   substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

(3)   all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under K.S.A. 23-37,207 or 23-37,208 and amendments thereto; or

(4)   no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

Physical presence of the alleged parent or the child is neither necessary nor sufficient to allow a Kansas court the power to determine child custody issues. The parties cannot agree that Kansas may exercise the power to decide child custody issues – even if Kansas is appropriately considering a request for child support against one or both alleged parents.

 


[1] K.S.A. 23-2207(a) formerly K.S.A. 38-1113(a).

[2] K.S.A. 23-2207(c) formerly K.S.A. 38-1113(c).

[2a] Frazier v. Goudshaal, – Kan. – (2013); In the Matter of the Relationship of Downs and Gilmore, 108176 (2013);  In the Matter of E.G.S. and Sonnier, 108,778 (2013)

[3] K.S.A. 23-2206 formerly K.S.A. 38-1127.

[4] Multiple presumptions and conflicting presumptions are addressed in Section III.

[5] K.S.A. 23-2212(a) formerly K.S.A. 38-1118(a).

[6] K.S.A. 23-2208(a)(5) formerly K.S.A. 38-1114(a)(5).

[7] K.S.A. 23-2208(b) formerly K.S.A. 38-1114(b).

[8] K.S.A. 23-2208(b) formerly K.S.A. 38-1114(b).

[9] K.S.A. 23-2208(f) formerly K.S.A. 38-1114(f).

[10] See State of Kansas ex rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993)(consent to sexual activity under the criminal statutes is irrelevant in civil action to determine paternity and establish child support obligations).

[11] State of Kansas ex rel. Hermesmann v. Sever, 252 Kan. 646, 655 (quoting Weinberg v. Omar E., 106 App.Div.2d 448, 482 NYS 540 (1984)). See also In re Parentage of Shade, 34 Kan.App.2d 895, 126 P.3d 445, 453 (2006).

[12] K.S.A. 23-2208(c) formerly K.S.A. 38-1114(c)

[13] In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).

[14] Id. at Syl. 6.

[15] Id.

[16] Id. at Syl. 5

[17] Id.

[18] State ex rel. SRS v. Miller, 24 Kan.App.2d 822, 953 P.2d 245 (1998).

[19] In re DBS, 20 Kan.App.2d 438, 888 P.2d 875 (1995)

[20] In re DBS, 20 Kan.App.2d 438, 888 P.2d 875 (1995)(quoting McDaniels v. Carlson, 108 Wash.2d 299, 312-13, 738 P.2d 254 (187)).

[21] Id. (quoting Weston, Putative Fathers’ Rights to Custody–A Rocky Road at Best, 10 Whittier L.Rev. 683, 700 (1989).

[22] Ferguson v. Winston, 27 Kan.App.2d 34, 39, 996 P.2d 841 (2000).

[23] Guth v. Wagner, unpublished (#103398, July 23, 2010) http://www.kansas-divorce.com/unpublished/2010/0723_guth.pdf 

[24] 42 U.S.C. 666(a)(5)(D).

[25] 42 U.S.C. 666(a)(5)(E).