Law Forum : FRAZIER v. GOUDSCHAAL Marci FRAZIER, Appellee, v. Kelly GOUDSCHAAL, Appellant. No. 103,487. -- Feb


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Marci FRAZIER, Appellee, v. Kelly GOUDSCHAAL, Appellant.

No. 103,487.
-- February 22, 2013

T. Bradley Manson, of Manson & Karbank, of Overland Park, argued the cause, and Elizabeth Rogers Rebein and Kelli M. Broers, of the same firm, were with him on the briefs for appellant.Dennis J. Stanchik, of Olathe, argued the cause and was on the brief for appellee.Stephen Douglas Bonney, chief counsel and legal director, of ACLU of Kansas & Western Missouri, of Kansas City, Missouri, Rose A. Saxe, of Lesbian Gay Bisexual Transgender & AIDS Projects, of ACLU Foundation, of New York, New York, and Catherine Sakimura, of National Center for Lesbian Rights, of San Francisco, California, were on the brief for amici curiae American Civil Liberties Union, American Civil Liberties Union of Kansas and Western Missouri, and the National Center for Lesbian Rights.Linda Henry Elrod, director, was on the brief for amicus curiae Washburn University School of Law Children and Family Law Center.Stephanie Goodenow, of Law Office of Stephanie Goodenow, LLC, of Olathe, was on the brief for amicus curiae National Association of Social Workers.

Kelly Goudschaal and Marci Frazier were committed to a long-time, same-sex relationship, during which they jointly decided to have two children via artificial insemination. In conjunction with the birth of each child, the couple executed a coparenting agreement that, among other provisions, addressed the contingency of a separation. A few months after the couple separated, Goudschaal notified Frazier that she was taking the children to Texas, prompting Frazier to file this action, seeking inter alia to enforce the coparenting agreement. The district court's final order divided all of the women's property, awarded the couple joint legal custody of the two children, designated Goudschaal as the residential custodian, established unsupervised parenting time for Frazier, and ordered Frazier to pay child support. Goudschaal appeals, questioning the district court's division of her individually owned property and challenging the district court's jurisdiction and authority to award joint custody and parenting time to an unrelated third person. We find that the district court had the legal authority to enter its orders, but we remand for further factual findings.

Factual and Procedural History

The Parties' Relationship

The relationship of Frazier and Goudschaal began in 1995. At some point, the couple decided to start a family, utilizing assisted reproductive technologies (ART) in the form of artificial insemination. Originally, the plan was for both women to become pregnant, so that they could share a child from each partner. But when Frazier was unable to conceive, they mutually agreed that Goudschaal would bear both children. In 2002, Goudschaal gave birth to their first daughter; their second daughter was born in 2004.

Before the birth of their first daughter, Frazier and Goudschaal signed a coparenting agreement. In 2004, the couple executed another coparenting agreement that made provisions for the second child. That agreement identified Frazier as a de facto parent and specified that her “relationship with the children should be protected and promoted”; that the parties intended “to jointly and equally share parental responsibility”; that each of the parties “shall pay the same percent of [child] support as her net income compares to [their] combined net incomes”; “that all major decisions affecting [the] children ․ shall be made jointly by both parties”; and that in the event of a separation “the person who has actual physical custody w[ould] take all steps necessary to maximize the other's visitation” with the children. In addition, both a consent for medical authorization and a durable power of attorney for health care decisions were executed. Further, each woman executed a last will and testament that named the other as the children's guardian.

Goudschaal, Frazier, and the two children lived together as a family unit. The adults jointly purchased a home, jointly owned personal property, and shared bank accounts. Although Frazier was primarily responsible for handling the couple's financial transactions, both parties contributed to the payment of bills and to the educational accounts for the children. For their part, the children used their legal surname of “Goudschaal–Frazier,” and, notwithstanding the absence of a biological connection, both children called Frazier “Mother” or “Mom.” The teachers and daycare providers with whom the family interacted treated both Frazier and Goudschaal as the girls' coequal parents.

At some point, the adults' relationship began to unravel, and by September 2007, Frazier and Goudschaal were staying in separate bedrooms. In January 2008, Goudschaal moved out of their home. For nearly half a year thereafter, the women continued to share parenting responsibilities and maintained equal parenting time with the girls. In July, however, Goudschaal began to decrease Frazier's contact with the girls, allowing her visitation only 1 day each week and every other weekend. Finally, in October 2008, Goudschaal informed Frazier that she had accepted a new job in Texas and intended to move there with both girls within a week. Frazier responded by seeking relief in the Johnson County District Court.

Proceedings in the District Court

Frazier first filed a petition to enforce the 2004 coparenting agreement. She also filed a separate petition for equitable partition of the couple's real and personal property. The first petition was later dismissed, and the petition for partition was amended to include the request to enforce the coparenting agreement. Goudschaal responded with a motion to dismiss, claiming that the district court lacked subject matter jurisdiction to address Frazier's requests for child custody or parenting time and arguing that the court could not properly divide certain portions of the parties' individually titled property.

The district court denied Goudschaal's motion to dismiss, opining that the district court had “two separate and independent bases for jurisdiction.” First, the court held that the petitioner had invoked the court's equitable jurisdiction to determine whether “highly unusual or extraordinary circumstances” existed which would permit the court to apply the best interests of the child test to grant Frazier reasonable parenting time, notwithstanding the parental preference doctrine.

Secondly, the district court found jurisdiction under the Kansas Parentage Act (KPA), K.S.A. 38–1110 et seq., to consider Frazier's claim that she is a nonbiological parent. Specifically, the district court pointed out that K.S.A. 38–1126 provides that “[a ]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship.” (Emphasis added.) The court considered Frazier as having interested party status by virtue of her claim that she has notoriously and in writing acknowledged the mother and child relationship with these children. See K.S.A. 38–1113(a) (motherhood can be established “under this act”); K.S.A. 38–1114(a)(4) (paternity can be established by notoriously or in writing recognizing that status); and K.S.A. 38–1126 (insofar as practicable, the provisions of the KPA applicable to the father and child relationship also apply to the mother and child relationship).

At the hearing on the petition, in addition to presenting the coparenting agreement, the parties stipulated to the value of the house and proffered evidence regarding all their assets and liabilities, such as retirement accounts, tax returns, mortgages, and income. The district court concluded that the parties lived and operated as a couple who had comingled their assets and thus each had an equitable interest in the other's financial accounts. The court noted that “[e]ach party received the benefit of sharing bills and responsibilities in a family setting.” As a result, the court concluded it would result in unjust enrichment if the assets and liabilities were not equitably divided. Accordingly, the court ordered an equalization payment of $36,500 to Frazier and assigned $60,000 of the second mortgage debt on the house to Goudschaal. The debt assignment was required because, as the court acknowledged, Goudschaal's retirement account could not be divided with a nonspouse.

Regarding the children, the district court determined that an award of joint custody was in the best interests of the children. Goudschaal was awarded residential custody. Frazier was ordered to pay monthly child support and was granted reasonable parenting time. After Frazier resumed visitation with the girls, they began to experience behavioral problems that prompted their being placed in therapy. However, the record does not contain any reports from that therapist.

Goudschaal appealed the district court's decision. The appeal was transferred to this court on its own motion. K.S.A. 20–3018(c).

Arguments on Appeal

cont'd (

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