Same-sex Parental Rights

Kelly Goudschaal and Marci Frazier entered in a long-time same-sex relationship in 1995, during which they decided to have two children through artificial insemination. With the birth of each child, the couple entered into a coparenting agreement that addressed what would happen if they were to separate- stipulating joint custody. In 2008, the two separated. Goudschaal notified Frazier that she was moving to Texas and taking the kids. Frazier filed an action seeking to enforce the coparenting agreement. The district court ordered a division of all of the woman's property, and awarded the couple joint legal custody, and Frazier visiting time. 

The standard for granting custody in Kansas is a determination of what's in the best interests of the child. This cases ends up at the Kansas Supreme Court, where Goudschaal petitions the court to deny Frazier her parental rights. She argues that if courts entertain requests based on what is in the best interests of the children, that will open a floodgate without establishing any boundaries. 

Relying on In re Marriage of Ross (245 Kan. 591, 783 P.2d 331 (1989)), Fraizer argues that the Uniform Parentage Act is designed to provide for the equal and beneficial treatment of all children, regardless of their parent's marital status. 

The Supreme Court of Kansas held that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and therefore, can be an "interested party" who is authorized to bring an action to establish the existence of a mother and child relationship. Additionally, it held that "after the family unit fails to function, the child's interests become a matter for the State's intrusion, in order to avoid jeopardizing the child if a parent's claim for the child is based solely or predominantly on selfish motives."

Accordingly, the Court upheld the district court's decision dividing the parties' property, to determine the existence or nonexistence of a mother and child relationship between Fraizer and the two children; to determine the validity and effect of the coparenting agreement, and to enter such orders with respect to child custody, parenting time, and child support that are in the best interests of the children.

"Looking at the coparenting agreement from the other side," the Court said, "the children were third-party beneficiaries of that contract. They would have a reliance interest in maintaining the inherent benefits of having two parents, and severing an attachment relationship formed under the contract would not only risk emotional and psychological harm, but also voids the benefits to the children that prompted the agreement in the first instance."

While the Court upholds the district court's findings, it remands the case to further explore the best interests of the children, and in that regard, to appoint an attorney to represent the children's interests. Additionally, it remanded the issue of the property division for a factual determination of how the property should be divided.

This case begs the questions: what if the two didn't have a coparenting agreement? Should the non-biological parent in same-sex marriage, have parental rights upon the termination of their relationship? Does the "best interests of the child" standard answer this question? Sound off and let us know!

Read the Supreme Court's decision HERE, and the article HERE.