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Greer v. Greer

Court of Appeals of Kansas

April 18, 2014

Emily L. Greer, a minor child, by and through her next friend, John Farbo, Appellant,
v.
Dana Greer and Jack Greer, Appellees

Page 311

Appeal from Franklin District Court; Thomas H. Sachse, judge.

SYLLABUS

BY THE COURT

1. A paternity proceeding determines who a child's legal father is and, therefore, who will enjoy the rights and responsibilities of legal parenthood.

2. Presumptions of paternity may arise in favor of different men.

3. When the court is faced with two conflicting presumptions of paternity, it is required to conduct a hearing to determine which presumption " is founded on the weightier considerations of policy and logic, including the best interests of the child" before it determines the child's legal parentage. K.S.A. 2013 Supp. 23-2208(c).

4. There is a strong presumption that a woman's husband is the father of any child born during the marriage. This presumption exists both at common law and statutorily under K.S.A. 2013 Supp. 23-2208(a)(1).

5. A hearing pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), is required when (1) there is not a genetic test resulting in a presumption of paternity performed prior to the filing of the paternity action, or (2) a genetic test was completed prior to the filing of the paternity action but the result is inadmissible due to a proper statutory objection being lodged. In addition, a Ross hearing is only required when one man's presumption is at risk of rebuttal; when no credible evidence exists that the child has a presumed father, a Ross hearing in advance of admitting a genetic test result is not required.

John A. Boyd, of Green, Finch & Covington, Chtd., of Ottawa, for appellant.

Joyce Hendrix-Kuchar, of Bezek, Lowry & Hendrix, of Ottawa, for appellees.

Before Arnold-Burger, P.J., McAnany, J., and Ernest L. Johnson, District Judge Retired, assigned.

OPINION

Page 312

[50 Kan.App.2d 181] Arnold-Burger, J.:

When the court is faced with two conflicting presumptions of paternity in a paternity case, it is required to conduct a hearing to determine which presumption " is founded on the weightier considerations of policy and logic, including the best interests of the child," before it determines the child's legal parentage. K.S.A. 2013 Supp. 23-2208(c). In October 2012, Dana Greer (Dana) gave birth to a baby, Emily. Dana was married to Jack Greer (Jack) at the time of the baby's conception and birth; however, voluntary genetic testing after the baby's birth revealed that John Farbo (John), a man Dana dated while she and Jack were separated, is Emily's biological father. Based on the genetic test, John filed a petition in district court to establish himself as Emily's legal father. Because the district court failed to weigh the conflicting presumptions of paternity--legitimacy versus genetics--we find that the court committed an error of law, and, accordingly, we remand the case for such a hearing.

Factual and Procedural History

Jack and Dana married in 2009. After a time, the couple began to experience marital

Page 313

discord, and in August 2011 they separated. Dana moved in with her father, and Jack obtained a divorce attorney and filed for divorce in Missouri.

Shortly after the separation, Dana contacted her long-time acquaintance John and the two entered into a dating relationship. Although John discovered early in the relationship that Dana was married, Dana assured John that she and Jack planned on divorcing. As the relationship progressed, John and Dana discussed a variety of long-term plans, including living together as a family unit with Dana's daughter from a previous relationship. John moved from Illinois to Kansas during this time. But in February 2012, Jack and Dana reconciled, and Dana ended her relationship with John.

A few weeks later, in March 2012, Dana contacted John and informed him that she was pregnant. John assumed the child was [50 Kan.App.2d 182] his and informed Dana that he wished to be part of the child's life and help support the child financially.

The child, Emily, was born in October 2012. John discovered the fact of Emily's birth a few weeks later, as his contact with Dana during her pregnancy was inconsistent and Dana had not informed him of Emily's birth. In January 2013, John, Dana, and Emily underwent genetic testing that determined there was a 99.99% probability that Emily was in fact John's biological child. Based on the genetic testing, John filed a paternity suit in Franklin County to establish Emily's legal paternity. In his petition, he asked the court, pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), " for a hearing to determine it is in the best interests of the minor child to determine paternity [and] to make a finding that petitioner is the natural father." In his proposed findings of fact, he enumerated the nonexclusive factors under Ross that the court should consider in deciding the case. He proposed findings of fact which corresponded to the Ross factors. He proposed that the court conclude:

" Pursuant to the Ross case, the Court has determined it is in the best interests of the minor child for the evidence of the genetic testing in this case to be received into court, which establishes with a 99% certainty that the Petitioner is the biological father of the minor child, Emily Greer."

The district court scheduled a Ross hearing to determine Emily's best interests prior to establishing paternity.

The Ross hearing occurred on June 3, 2013. John, Dana, and Jack each testified. Although other relevant facts will be added as needed, a brief overview of the hearing is as follows:

John testified that, in the time between Emily's birth and the hearing, he had seen Emily approximately 22 times. These visits occurred during time periods in which Jack was temporarily living away from the Greer residence. John explained that during visits he had helped Dana and Dana's older daughter care for Emily and had attempted to establish a parental bond with the baby. John also testified that he had purchased a number of items for Emily and set up a room for Emily in his home. He gave Dana a few items, such as a stroller and car seat, to help her care for the baby. [50 Kan.App.2d 183] John further stated that he bought formula and diapers for Emily and paid for at least one doctor's visit, although he admitted he never sent Dana money.

Dana did not counter John's version of events in her testimony. However, Dana noted that she felt pressured by her family and John to involve John in Emily's life. Dana acknowledged that she blocked John's phone number because he continued to contact her even after she asked him to stop. Regarding her marriage to Jack, Dana testified that although she and Jack were estranged twice after Emily's birth, they had started seeing a marriage counselor to work on their relationship. Dana emphasized that Jack coparented Emily with her and that, since Emily's birth, Emily and Jack had formed a strong father-child bond. Dana also stated that although she believed Jack's relationship with Emily would not suffer if Emily knew her biological parentage, she worried that forcing a relationship between John and Emily might confuse Emily unnecessarily.

Page 314

Jack briefly testified, explaining that most people in the community and his personal life understand Emily to be his child. Jack explained that he wanted Emily to grow up in his home as his child and that he wanted John to stop " interfering" with his family. However, he also acknowledged that ...


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