In the Matter of W.L. and G.L., by and Through Their Mother and Next Friend M.S., Appellant, and E.L., Appellee.
interest of parents in the care, custody, nurture, and
control of their children is a fundamental liberty interest
protected by the Fourteenth Amendment to the United States
Constitution. Any waiver of these constitutionally protected
rights must be knowingly, intelligently, and voluntarily
K.S.A. 2018 Supp. 23-2301 et seq. authorizes a parent-child
relationship to be established by a married couple using
Assisted Reproductive Technology (ART) to conceive a child so
long as both the spouses and the person who performs the
procedure execute and acknowledge a consent in writing. Once
this is done, the child is to be "considered at law in
all respects the same as a naturally conceived child . . .
." K.S.A. 2018 Supp. 23-2302.
ART statutes have not been extended to unmarried couples.
However, in Frazier v. Goudschaal, 296 Kan. 730,
747, 295 P.3d 542 (2013), the Kansas Supreme Court recognized
that a parent-child relationship can also be established with
a child conceived by ART where there is a written agreement
between an unmarried couple in which the biological mother
waives her constitutional rights and consents to coparenting
with her partner.
unmarried person who seeks to establish a parent-child
relationship with a child conceived using ART must attempt to
do so by using the procedure set forth in the Kansas
Parentage Act (KPA), K.S.A. 2018 Supp. 23-2201 et seq.
Under K.S.A. 2018 Supp. 23-2220, the provisions of the KPA
applicable to determining the existence of a father and child
relationship also apply to the mother and child relationship,
insofar as practicable.
K.S.A. 2018 Supp. 23-2208, the initial burden of proof is on
the petitioner to establish by a preponderance of the
evidence a presumption of parentage. If the petitioner meets
this initial burden, the burden of proof shifts to the
respondent to rebut the presumption by clear and convincing
evidence. If the presumption is rebutted, the burden of proof
shifts back to the petitioner to go forward with the
Under K.S.A. 2018 Supp. 23-2208(a)(4), a person can establish
a presumption of parentage if he or she "notoriously or
in writing recognizes [parentage] of the child, including but
not limited to a voluntary acknowledgment made in accordance
with [Kansas law.]"
requirements of the KPA are not based on marital status,
sexual orientation, or gender. On its face, the KPA applies
to both "the mother and child relationship and the
father and child relationship." K.S.A. 2018 Supp.
KPA provides that every child has an interest in his or her
parentage, and Kansas public policy requires courts to act in
the best interests of children when determining the legal
obligations to be imposed and the rights to be conferred in
the parent and child relationship.
whether a statute violates the constitution is a question of
law subject to unlimited review. Under the separation of
powers doctrine, courts presume a statute is constitutional
and resolve all doubts in favor of the statute's
validity. A statute must clearly violate the constitution
before it may be struck down.
KPA defines a parent-child relationship in terms of biology
and adoption. Under the KPA, biological and adoptive parents
are treated differently from persons who are not connected to
a child by either biology or adoption.
KPA's distinction between a child's biological or
adoptive parents and other persons does not establish a
violation of the Equal Protection Clause under the Fourteenth
Amendment to the United States Constitution.
from Crawford District Court; Richard M. Smith, judge.
Valerie L. Moore, of Lenexa, for appellant.
M. Hall and Sarah E. Warner, of Thompson Warner, P.A., of
Lawrence, for appellee.
Bruns, P.J., Schroeder and Gardner, JJ.
appeal arises out of a Petition for Determination of
Parentage filed by M.S. under the Kansas Parentage Act (KPA),
K.S.A. 2018 Supp. 23-2201 et seq. In the petition, she
alleged a parent-child relationship with two minor children,
W.L. and G.L., who were conceived by artificial insemination.
At the time the children were conceived as well as at the
time of their birth, M.S. was in a same-sex relationship with
the children's biological mother, E.L. The couple never
married and never entered into a written agreement regarding
parentage. Likewise, it is undisputed that M.S. is not a
biological parent of the children nor did she adopt the
children. Instead, M.S. contends that she "notoriously
or in writing" recognized parentage of the children. See
K.S.A. 2018 Supp. 23-2208(a)(4) and K.S.A. 2018 Supp.
two-day bench trial, the district court denied M.S.'s
petition for parentage of W.L. and G.L. In doing so, the
district court concluded that even if M.S. established by a
preponderance of the evidence a presumption under the KPA,
E.L. "has convinced the court by clear and convincing
evidence that [M.S.] fails to meet the requisite criteria of
a psychological, de facto, or functional parent." In
particular, the district court found that there was no
"meeting of the minds" between M.S. and E.L.
regarding the parentage of the children. For the reasons
stated in this opinion, we affirm the district court's
determination of parentage.
and E.L. both grew up in Pittsburg. In the fall of 2011, the
women reconnected as adults when they were both working at
the University of Kansas Medical Center in Kansas City. In
early 2012, M.S. and E.L. began a romantic relationship that
lasted until the end of 2015. Although they lived together in
a home in Olathe between February 2012 and January 2016, the
couple never married or entered into a civil union.
they were living together, M.S. and E.L. discussed how each
of them would like to have children someday. In October of
2012, M.S. paid for a three-month membership to a sperm bank.
The membership allowed the women to log on to a website and
view the profiles of potential donors. When this three-month
membership expired, E.L. paid for another membership to the
early 2014, E.L. purchased eight vials of semen from a donor
she chose through the sperm bank at a cost of $4, 400. At
trial, the parties presented conflicting evidence about
whether M.S. repaid some of this expense. The parties also
disputed the nature and extent of M.S.'s involvement in
selecting the sperm donor. According to E.L., she made the
final decision and chose the donor based on his personal
statement and expressed family values. Moreover, E.L.
testified that M.S. had incorrectly identified the donor
during her testimony.
undergoing two unsuccessful insemination attempts, E.L.
became pregnant with twins in May 2014. The evidence in the
record is conflicting regarding whether M.S. was present
during the first two insemination attempts, but it appears
that she was present for the third attempt. However, M.S. did
not sign an insemination contract with the clinic. Likewise,
M.S. was not present at E.L.'s medical visit in late June
2014 when she learned that she was pregnant with twins.
E.L. found out that she was pregnant, she attempted to
involve M.S. in her pregnancy. E.L. sent out a pregnancy
announcement including both of their names and a photograph
of both M.S. and E.L. The announcement indicated that the
L.-S. twins would be arriving in January 2015. At a baby
shower hosted by E.L.'s sisters, M.S. and E.L. opened the
gifts together. During the pregnancy, M.S. attended some
prenatal doctor's appointments with E.L. but not others.
Unfortunately, E.L. had a difficult pregnancy- including
late-term preeclampsia requiring several hospitalizations.
Although E.L. described her social life as active before the
pregnancy, she testified that her lifestyle "changed
drastically" as soon as she found out she was pregnant.
M.S. did not change her lifestyle while E.L. was pregnant and
continued to party with friends. The night before E.L. gave
birth, M.S. attended a Christmas party sponsored by her
employer and then went to an "after party" at a
friend's house. E.L.'s mother, who was staying with
her, picked M.S. up from the after party and took E.L. with
her to help locate the house. Even though E.L. was in pain
and "in tears," M.S. had E.L.'s mother make an
early morning stop at McDonald's on the way home. A few
hours later, when E.L.'s water broke, M.S. was still
drunk. E.L.'s mother drove both women to the hospital.
While E.L. was in labor, she asked M.S. to "please,
please scooch back a little bit" because M.S. still
smelled of alcohol.
children were born on December 20, 2014. Although M.S. was
not listed as a parent on the birth certificate, E.L.
requested that the last name of the children include
M.S.'s last name. Evidently, this was not something that
E.L. and M.S. had discussed beforehand. According to E.L.,
this was something she wanted to do so that M.S. would feel
included. Over the next year, M.S. and E.L. lived together
with the children. E.L. testified that during this time she
made all of the major parenting decisions-including daycare,
nutrition, and healthcare decisions. However, M.S. did
contribute significantly to the household financially and
helped to pay for daycare, healthcare, and various other
became concerned because M.S. did not change her lifestyle
after the children were born. In May 2015, although the
children were very sick, M.S. went out with a friend. In July
2015, M.S. called E.L. to say she had been in a car accident.
E.L. took the children with her in the middle of the night to
try to find M.S. After driving around for about an hour and a
half, E.L. found M.S. after she spotted the flashing lights
of a police car. M.S. was taken to jail and received a
citation for DUI. In September 2015, several members of
E.L.'s family visited the couple for the weekend. M.S.
had been drinking heavily, and E.L. found her having sex with
E.L.'s sister's boyfriend in the backyard. The
children were in their bedroom sleeping at the time. The next
morning, M.S. packed a bag and left for a week. After M.S.
returned, E.L. said she tried to fix things and even went to
a counselor, but she knew the relationship was irreparable
because M.S. had also hurt several members of her immediate
October 2015, E.L. decided to end her relationship with M.S.
and began looking for a job in Pittsburg. In January 2016,
E.L. moved to Pittsburg. About a month after the move, E.L.
amended the children's birth certificates to include only
her last name. As such, they are now known as W.L. and G.L. A
month or two later, M.S. also moved to Pittsburg to live with
her parents. During the transition, E.L. allowed M.S. to come
by and see the boys whenever she was in town to see her
parents. Beginning in June 2016, E.L. began allowing the
children to stay overnight with M.S. at her parents'
house in Pittsburg every other weekend. In January 2017, E.L.
also began allowing M.S. to see the children once during the
to E.L., M.S. continued to act in a manner that caused her
concern. E.L. learned that M.S. had taken the children out of
the state with M.S.'s new girlfriend without first asking
her permission. Moreover, E.L. learned that M.S. had driven
with the children in the car while she was intoxicated. M.S.
had her girlfriend start the car for her by blowing into a
mandatory interlock device installed after M.S.'s
previous DUI. In addition, E.L. had concerns about M.S.'s
interactions with the children while she was presenting
symptoms of a strain of the herpes virus. It also appears
that M.S. represented herself to medical staff as
E.L.-including signing E.L.'s name and using her Social
Security number-in order to receive healthcare for the
after E.L. moved to Pittsburg, she began dating C.H. In July
2017, E.L. and C.H. moved in together with the children. In
January 2018, E.L. and C.H. were married. According to E.L.,
C.H. immediately established a good relationship with the
children. After E.L. and C.H. were married, they consulted an
attorney about the possibility of C.H. adopting the children.
late summer of 2017, M.S. texted E.L. and indicated that she
was considering moving back to Kansas City. A meeting was
setup with E.L., C.H., M.S., and M.S.'s girlfriend to
discuss future visitation with W.L. and G.L. When M.S. asked
E.L. about the possibility of becoming a guardian for the
children, the conversation "went very south."
Subsequently, E.L. sent an email to M.S. ...