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Kansas Supreme Court upholds lesbian mother’s rights

  • The Kansas City Star
  • Published Friday, Feb. 22, 2013, at 6:15 p.m.
  • Updated Saturday, Feb. 23, 2013, at 5:16 p.m.

The Kansas Supreme Court ruled Friday that the non-biological mother of children in a same-sex relationship can have the same parental rights as the biological mother.

The first-of-its-kind ruling in Kansas was hailed Friday as a victory for the rights of parents in non-traditional relationships and for their children.

“This is significant both in Kansas and nationally,” said Catherine Sakimura of the National Center for Lesbian Rights. “It recognizes the rights of those who hold themselves out as parents regardless of biology or gender.”

Only a handful of other states have addressed the issue, she said.

Stephanie Goodenow, an attorney who represented the National Association of Social Workers, which filed a legal brief in the case, said the ruling put aside political issues and was a “great result for kids.”

“Children don’t care about biology and sexual orientation,” she said. “They only care about who gives love to them and cares for them.”

Friday’s ruling involved the case of two Johnson County women, Kelly Goudschaal and Marci Frazier, whose long-term relationship deteriorated after they had become parents of two girls who are now 10 and 8.

The children were conceived by artificial insemination and were carried by Goudschaal.

The couple had signed a co-parenting agreement that stated Frazier’s “relationship with the children should be protected and promoted,” and that they intended “to jointly and equally share parental responsibility.”

After they separated, Goudschaal began limiting Frazier’s visitations and moved with the children to Texas.

Frazier filed a legal action seeking to have the parenting agreement enforced. After a trial, Johnson County District Judge Kevin Moriarty found that joint custody was “in the best interests of the children.”

Goudschaal was granted residential custody.

Frazier was ordered to pay monthly child support and was granted “reasonable parenting time.”

In her appeal Goudschaal argued that the parenting agreement was unenforceable under Kansas law.

“Goudschaal summarily dismisses the agreement as unenforceable, apparently believing that such an agreement is always contrary to public policy and, thus, invalid as a matter of law,” the court noted in Friday’s decision. “We disagree with that blanket condemnation.”

She contended that the courts had no authority to address issues of child custody, parenting time and support unless they were presented “in a divorce action involving two married persons, who would necessarily have to be a man and a woman in this state, or when considering a visitation request by a grandparent or stepparent.”

But Frazier argued that the best interests of the child outweigh the need to “strictly adhere to the biological connection,” the court noted in its ruling.

According to the legal brief filed by the National Association of Social Workers, “the formation of attachment bonds is critical to a child’s healthy development; that attachment relationships develop despite the absence of a biological or legal connection between parent and child; that sexual orientation is irrelevant to the development of strong parent and child attachments; and that children experience severe emotional and psychological harm when their attachment relationships are severed.”

The Supreme Court said in Friday’s decision: “We have declared that the public policy in Kansas requires our courts to act in the best interests of the children when determining the legal obligations to be imposed and the rights to be conferred in the mother and child relationship.”

The court said that “what Goudschaal really wants is to renege on the co-parenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights.

“Surely, her constitutional rights do not stretch that far.”

Not enforcing the parenting agreement would deny the children the opportunity to have two parents as children in a traditional marriage would have, according to the court.

“The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother,” the court ruled.

“No societal interest has been harmed; no mischief has been done.

“The agreement contains no element of immorality or illegality and did not violate public policy.”

As part of the ruling, the court ordered the appointment of an attorney to represent the interests if the children and said additional hearings should be held in the trial court concerning the issue of what is in the best interest of the children as well as issues related to property settlements between the women.

“I’m ecstatic,” said Linda Elrod, director of the Children and Family Law Center at Washburn University School of Law in Topeka. “It’s a very brave ruling.”

She said it was a significant ruling encompassing the rights of children.

“The children had known both of them as mommy for their entire lives,” she said.

Doug Bonney, legal director for the American Civil Liberties Union of Kansas and Western Missouri, called it a groundbreaking decision that grants legal standing to parenting agreements between same-sex couples.

“If those agreements aren’t enforceable, it leaves both the parents and children in a legal limbo,” he said.

Brad Manson, the attorney who represented Goudschaal on the appeal, said the fact that the Supreme Court had been considering the case for more than two years demonstrated the difficult nature of the issues.

“It’s on the leading edge of the law in this area,” he said.

Frazier’s appellate attorney, Dennis Stanchik, said it was a “courageous decision” that provided “brand-new law” that will provide legal guidance for others in similar situations.

“The holding has much wider implications than for just these two women,” he said.

Valerie Moore, Frazier’s attorney during the original trial, said Frazier’s position always had been that she only wanted the case to be handled like it would for any other couple.

Frazier said Friday that the decision was a long time coming and was “very exciting.”

“It doesn’t matter who you are or what you are,” she said. “If you’re a parent, you’re a parent.”

To reach Tony Rizzo, call 816-234-4435 or send email to trizzo@kcstar.com

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