In re W.L. and G.L. (Kansas 2020)

The unmarried partner of a same sex couple can be recognized as a legal parent under K.S.A. 2019 Supp. 23-2208(a)(4) presumption of maternity. The appellant filed to establish parentage of the twins born to her same-sex partner. The district court denied the petition, which the court of appeals upheld. The Supreme Court reversed. An unmarried partner only needs to establish that she notoriously held out a child in order to meet the requirements of a presumption of paternity under in K.S.A. 2019 Supp. 23-2208(a)(4). Then, the burden shifts to the other party to rebut the presumption by clear and convincing evidence. If the presumption is rebutted, the burden shifts back to the party seeking to establish the relationship to provide evidence. The evidence must establish the relationship by a preponderance of the evidence. The lower courts had relied heavily on the fact there was no written parenting agreement between the two women. The Supreme Court found an agreement was not necessary for a parent to meet the initial establishment of the presumption. The Supreme Court acknowledged that the birth mother, at the time of the child’s birth, consent to share her due process right to parent with the other woman.