Non-Biological Lesbian Mother’s Parental Rights Upheld

Non-Biological Lesbian Mother’s Parental Rights Upheld

| Feb 27, 2013 | in Uncategorized |

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On Friday, February 22, 2013, the Kansas Supreme Court issued a ruling in Frazier v. Goudschaal, KS S.Ct. No. 103,487, which is significant both in Kansas and nationally.  After considering the matter for over two years, the Kansas Supreme Court addressed an issue that has only been addressed by a few other states.  In particular, the Court recognized the parental rights of a non-biological lesbian mother.

The parties’ relationship, which began in 1995, came to an end in 2008.  During the relationship, the women decided to have children.  The couple had two children, born in 2002 and 2004, utilizing artificial insemination.  Goudschaal was the biological mother of both children.  Before the birth of their first child, and again at the time of the birth of their second child, the women signed a co-parenting agreement.  At that time, a consent for medical authorization and a durable power of attorney for health care decisions were also executed.  Each woman also executed a last will and testament naming the other as the children’s guardian.  In 2008, after the couple split up, Goudschaal attempted to relocate with the children to Texas.  As a result, Frazier filed an action with the Court seeking to divide the couple’s assets equitably and resolve custody and parental responsibility issues.  The lower court divided the couple’s assets, awarded joint custody with residential custody in Goudschaal, granted Frazier parenting time and ordered her to pay child support.  Goudschaal appealed the lower court’s ruling.

The key in this decision was the planning tools utilized by the couple.  The Court cited to specific language in the co-parenting agreement which identified Frazier as a “de facto parent” and specified that her “relationship with the children should be protected and promoted.”

In highlighting the significance of the co-parenting agreement, the Court stated that a “parent should have the right to enter into a co-parenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.”  In addressing the importance of the co-parenting agreement, the Court noted that without the agreement the children would have only one parent under Kansas law, and denying the children an opportunity to have two parents, impinges upon the children’s constitutional rights.  The Court stated that the co-parenting agreement contained “no element of immorality or illegality and did not violate public policy.”   “Consequently, the co-parenting agreement in this case does not violate public policy and is not unenforceable as a matter of law.”

Because the co-parenting agreement was enforceable, the lower court had authority to enter orders addressing child custody, parenting time and child support.  Further, the lower court had authority to equitably divide the parties’ property.

So does this legal argument have any relevance in the State of Colorado?  I believe the answer is that it does.  While Colorado offers additional protections to same-sex families, such as second-parent adoption and recognition of a “psychological parent’s” right to seek parental responsibilities, co-parenting agreements and other family and estate planning tools are still valuable tools.  Not all same-sex couples will, or can, utilize the second-parent adoption process.  For those couples, the non-biological parent is left relying on the “psychological parent” basis for parental responsibilities, which may apply but may also be more costly and time intensive to pursue.  Instead, utilizing planning tools, such as a co-parenting agreement, as well as various powers of attorneys, wills, and guardianship designations is a key way to insure that the rights of the parents and the children are protected both now and in the future.

For more information on the Kansas case, see this Wichita Eagle article and this Huffington Post article.