In re A.K.

518 P.3d 815

In the MATTER OF the Parentage of A.K.

No. 124,288

Court of Appeals of Kansas.

Opinion filed September 16, 2022.

Valerie L. Moore, of Lenexa, for appellant A.M.

No appearance by appellees K.K. and Q.K.

Before Hill, P.J., Malone, J., and Patrick D. McAnany, S.J.

Hill, J.:

The Kansas Parentage Act recognizes claims of parentage, not only based on genetics but also based on a child's circumstances. These circumstances give rise to statutory presumptions of parentage, and sometimes two presumptions can conflict. In a case of conflicting presumptions, a court must decide which presumption is based on weightier considerations of policy and logic and account for the best interests of the child.

The district court here, on remand from this court, found circumstances had created two conflicting presumptions under the Act. First, the petitioner, A.M., had established a presumption of parentage based on the circumstances before and after the child's birth. Second, the district court found that Q.K., the birth mother's husband, had established a presumption of parentage because after the child's birth, he married the child's birth mother and, with his consent, he was named as the child's father on the child's Missouri birth certificate. And the child has been living with him as part of his family since his marriage.

The court weighed the presumptions, considered the circumstances, and held that Q.K. had the weightier presumption. The court decided that it was in the child's best interests to hold that Q.K.’s presumption prevailed. From our review of the record, we see that the district court did exactly what the Act calls for—to weigh conflicting presumptions and rule for the prevailing party. We find no error by the court and affirm.

Because the presumptions of parentage involved here deal with circumstances and not genetics or biology as some caselaw mentions, we will give a detailed case history.

A romantic relationship falls apart, a child is born, the birth mother marries a man after her child is born, and two people claim parentage.

A.M. and K.K. began a four-year romantic relationship when they were minors. The two young women started living together. In early 2013, K.K. had an affair with W.S. and became pregnant. A.M., at first, told K.K. to have an abortion, but sometime during the pregnancy A.M. got "on board" and became more enthusiastic. A.M.’s family organized baby showers where she and K.K. both participated. A.M. attended all of K.K.’s obstetrical appointments.

K.K. gave birth in November 2013. A.M. and her mother were present in the room at the birth, and A.M. cut the umbilical cord. A.M. took time off from work to be with K.K. and the baby following the birth. A.M. referred to the child on Facebook as "[m]y girlfriend's and I[’s]" child. The child was given A.M.’s last name on the original birth certificate. No father was listed on the birth certificate. A.M. said she was not permitted to sign the birth certificate because she was not biologically related to the child.

The parties continued to reside together and, at one point, were engaged to be married. But they ended their relationship in early 2015. The relationship between A.M. and K.K. contained instances of violent physical abuse initiated by both parties, including throwing things, punching, kicking, and a violent altercation that ended in a serious car accident. There were physical altercations after the birth of the child, and in the presence of the child. One violent altercation involved A.M. knocking K.K. unconscious while K.K. was holding the child. A.M. stated that the physical violence was the main reason they broke up, so the child would not be in that environment.

After the breakup, A.M. continued to spend significant time with the child, mostly to accommodate her and K.K.’s work schedules. But A.M. also had the child for two weeks at a time when K.K. temporarily moved to Kentucky. K.K. met A.M. in St. Louis to facilitate the child exchanges. A.M. celebrated some birthdays and holidays with the child. A.M. paid K.K. over $1,400 for the child's day care and school expenses. The payments were labeled "child support." But A.M. said that was "mostly ... joking." K.K. made the parenting decisions about raising the child.

K.K. met Q.K. when the child was just over a year old. In 2016, K.K. had a son with Q.K. They moved in together and married. Q.K. is not biologically related to the child that is the subject of this case. He did not meet the child until she was about 18 months old.

K.K. started temporarily denying A.M. access to the child in 2015 for a few days to two weeks at a time. Then, in January 2018, K.K. stopped A.M.’s visitation with the child. The next month, K.K. and Q.K. changed the child's last name on her birth certificate in Missouri and they added Q.K. on the birth certificate as the child's father. Q.K. prepared a petition for a stepparent adoption of the child but did not file it.

In March 2018, A.M. petitioned the Johnson County District Court for a determination of parentage, claiming that she "notoriously or in writing recognizes paternity of the child." See K.S.A. 2021 Supp. 23-2208(a)(4). The district court issued temporary orders giving A.M. visitation time with the child every other weekend, finding that A.M. had shown "an existing de facto custody arrangement."

At a hearing in May 2018, the court found that because K.K.’s and Q.K.’s marriage was in 2016, "I can't think of any reason why [K.K.’s] current husband would be a necessary party." K.K.’s attorney agreed that the timing would not give rise to a presumption. The attorney stated, "My client's husband does not claim to be the father of the child." The court stressed that "anyone claiming to be a parent" of the child needed to be joined as a party. Q.K. did not seek to be added as a party to the case.

In June 2018, W.S. was added as a party to the action. He filed no pleadings and attended only one court hearing in October 2018. He acknowledged he was the child's biological father. He signed a voluntary relinquishment of his parental rights and consent to a stepparent adoption which stated, "I am the biological father of the minor child." No genetic testing was performed. K.K. kept in touch with W.S. for the first year after the child was born and sent him pictures of the child, but he was not present in the child's life.

At a later hearing in October 2018, the district court, on its own motion, added Q.K. as a necessary party to the action because of the evidence presented that his name appeared on the child's Missouri birth certificate. The court cited K.S.A. 2018 Supp. 23-2208(a)(3)(B).

The court appointed a guardian ad litem for the child after W.S. made an appearance due to possible competing presumptions. At the bench trial in December 2018, the GAL gave her opinion based on her independent investigation. The GAL talked to the child, various people, and was present at the trial. The GAL's investigation revealed that A.M. and K.K. had intended to coparent before the child's birth. The GAL considered the time A.M. spent with the child to be parenting time. The GAL stated that it was in the best interests of the child that A.M. be considered a legal parent.

A.M. testified the child calls her "Momma or Mommy," but K.K. testified that did not begin until this litigation had started, and at A.M.’s instruction. The child calls A.M.’s parents "Poppa" and "Grandma [S.]." K.K. testified that A.M. did not have a mother-child relationship with the child. Rather, it was a friend or aunt-type relationship.

The child calls Q.K. "Dad" or "Daddy." Q.K. testified he considered the child to be his child and did not differentiate between her and his son. He signed her birth certificate because they "wanted to be a family unit" and "wanted [the child] to share the same last name as the rest of us." He asked the court "[t]o make it official" that he was the child's parent. There was testimony that the child had a "normal father and daughter relationship" with Q.K.

During this litigation, A.M. told the child that Q.K. was not her biological father. Q.K. testified that the litigation had damaged the relationships between him and the child, and between the child and her younger brother.

The district court took the matter under advisement and then ruled that A.M. could not legally establish a presumption of parentage because she was not biologically related to the child and did not enter into a coparenting agreement with K.K. The court held both W.S. and Q.K. had established presumptions of paternity, weighed the presumptions, and determined Q.K.’s presumption was founded on weightier considerations of policy and logic, and it was in the best interests of the child for Q.K. to be declared the legal parent.

Our court reversed the district court's ruling and remanded the case.

The district court's ruling did not stand. A.M. appealed and a panel of this court reversed, holding the district court made an error of law in determining A.M. could not establish a presumption of parentage. The panel held the presumption stated in K.S.A. 2021 Supp. 23-2208(a)(4) does not depend on a biological connection to the child, nor does it require a coparenting agreement. The panel remanded the case to the district court for further proceedings since it did not make the factual determination whether A.M. had established a presumption of parentage under the correct law. The appeal did not concern Q.K.’s presumption of parentage. McMullin v. Kirch , No. 121,293, 2020 WL 4377905, at *3 (Kan. App. 2020) (unpublished opinion).

On remand, no new evidence was presented. The district court found that A.M. had established a presumption of maternity because she participated in a baby shower, she posted comments on social media claiming the child was part of her family, she cut the umbilical cord, and the child was given A.M.’s last name at the time of birth. The court then weighed A.M.’s presumption against Q.K.’s...