Kan. Supreme Court Upholds Lesbian Mother's Rights
Originally printed 2/28/2013 (Issue 2109 - Between The Lines News)
TOPEKA, Kan. (AP) -
In a ruling hailed by some as a victory for parents in non-traditional relationships, the Kansas Supreme Court has ruled that the non-biological mother of children in a same-sex relationship can have the same parental rights as the biological mother.
Friday's ruling involved two Johnson County women, Kelly Goudschaal and Marci Frazier, who separated after they become parents of two children, now 10 and 8. Court documents indicate the women's relationship began in 1995 and Goudschaal moved out in 2008.
After the separation, Goudschaal moved with the children to Texas and limited Frazier's visitations, The Kansas City Star reported http://bit.ly/UULh9b.
Frazier filed a legal action to enforce a co-parenting agreement between the women that said Frazier's "relationship with the children should be protected and promoted," and that they intended "to jointly and equally share parental responsibility." A Johnson County judge then found that joint custody was "in the best interests of the children" and granted Frazier "reasonable parenting time."
Goudschaal appealed, arguing that the parenting agreement was unenforceable. Her argument was that the courts didn't have 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."
The high court, however, said not enforcing the parenting agreement would deny the children the opportunity to have two parents.
"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 said. "We disagree with that blanket condemnation."
But Frazier argued that the best interests of the child outweigh the need to "strictly adhere to the biological connection," the court noted.
"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 decision said.
The court also 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," the court noted.
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.
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.
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."
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 said Friday the decision 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."
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