In re Parentage of R.R.

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,833
In the Matter of the PARENTAGE OF R.R.
SYLLABUS BY THE COURT
1.
The Kansas Parentage Act, K.S.A. 2022 Supp. 23-2201 et seq., recognizes claims
of parentage based on genetics, adoption, and other circumstances giving rise to statutory
presumptions of parentage.
2.
The Kansas Parentage Act imposes shifting burdens of proof on parties seeking to
establish paternity through a statutory presumption. If the party alleging paternity
establishes an initial presumption of paternity, the burden shifts to the other party to rebut
that presumption. If the presumption is rebutted, the party alleging paternity bears the
burden of going forward with the evidence by a preponderance of the evidence. When
competing presumptions exist, the court must decide parentage based on the presumption
yielding the weightier considerations of policy and logic, including the best interests of
the child.
3.
Weighing conflicting presumptions and determining the best interests of a child
involve judgment calls for the district court; thus, an appellate court reviews the district
court's decisions for an abuse of discretion. A judicial action constitutes an abuse of
discretion if it is arbitrary, fanciful, or unreasonable, if it is based on an error of law, or if
substantial competent evidence does not support a finding of fact on which the exercise
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of discretion is based. The party asserting the district court abused its discretion bears the
burden of showing such abuse of discretion.
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 14,
2022. Appeal from Barton District Court; STEVEN E. JOHNSON, judge. Oral argument held May 16, 2023.
Opinion filed November 22, 2023. Judgment of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.
Jeffrey N. Lowe, of Penner Lowe Law Group, LLC, of Wichita, argued the cause, and Candice Y.
Farha, of the same firm, was with him on the briefs for appellant T.T.
Tish Morrical, of Hampton & Royce, L.C., of Salina, argued the cause, and was on the brief for
appellee T.R.
The opinion of the court was delivered by
STANDRIDGE, J.: The Kansas Parentage Act (KPA), K.S.A. 2022 Supp. 23-2201
et seq., recognizes claims of parentage based on genetics, adoption, and other
circumstances giving rise to statutory presumptions of parentage. When competing
presumptions exist, the KPA directs the court to decide parentage based on the
presumption yielding "the weightier considerations of policy and logic, including the best
interests of the child." K.S.A. 2022 Supp. 23-2208(c).
This case involves such competing presumptions of paternity. T.T. filed an action
seeking paternity rights to his biological son, R.R., who was conceived and born to
Mother during her marriage to T.R. In reaching its decision, the district court weighed the
competing presumptions of paternity, considered the totality of the circumstances, and
held T.R. had the weightier presumption and R.R.'s best interests would be served by
naming T.R. the legal father. A Court of Appeals panel affirmed the district court's
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decision. In re Parentage of R.R., No. 123,833, 2022 WL 7813894 (Kan. App. 2022)
(unpublished opinion).
On review, T.T. argues the district court misapplied the KPA by giving too much
weight to the marital presumption without giving equal weight to the biological
presumption, thus holding him to a higher burden of proof than statutorily required. He
also argues the district court had an unconscious bias against him that led it to improperly
weigh the best interests of the child factors set forth in Greer v. Greer, 50 Kan. App. 2d
180, 195-96, 324 P.3d 310 (2014).
After careful review of the entire record, we conclude the district court did not
assign greater weight to the marital presumption and made its decision based on the
appropriate consideration of applicable policy and logic, including the best interests of
the child, as required by the KPA. We further conclude that the district court's best
interest findings are supported by substantial competent evidence. As a result, we affirm
the panel's decision upholding the district court's ruling in favor of T.R.
FACTS
Mother and T.R. had a son in October 2015. They married in May 2017. In March
2019, while still married to T.R., Mother gave birth to R.R. T.R. was present for R.R.'s
birth and signed the birth certificate.
But Mother was romantically involved with T.T. when R.R. was conceived. T.T.
took a paternity test when R.R. was around three months old. The test results established
a 99.9% probability that T.T. was R.R.'s biological father.
In November 2019, T.T. filed a paternity action in the district court, requesting a
declaration of paternity and shared legal custody of R.R. The district court later granted
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T.R.'s motion to intervene in the paternity action. While the case was pending, T.R. filed
for divorce and Mother moved in with T.T.
In September 2020, when R.R. was 18 months old, the parties appeared before the
district court for a hearing on the paternity case. At that time, T.R. and Mother were still
separated but their divorce was not finalized. They shared residential custody of R.R. and
his older brother (Brother). Mother lived with T.T., but they had no current plans to
marry.
Highly summarized, the evidence presented at the hearing established that R.R.
referred to both T.T. and T.R. as "'Dada.'" They each had a positive, father-son
relationship with R.R., loved R.R. deeply, and would do anything for him. T.T. and T.R.
each had stable housing and employment. Both men had supportive family members who
lived nearby, saw R.R. regularly, and viewed R.R. as an integral part of their families.
The evidence showed that T.T., T.R., and their families would continue to love R.R. and
wanted to be part of his life regardless of the district court's decision. Neither T.T. nor
T.R. would object to R.R. continuing a relationship with whomever was not named the
legal father.
At the hearing, T.T.'s arguments focused on his relationship with R.R. since
learning he was R.R.'s biological father, his current relationship with Mother, and his
claims that he would have been more involved in R.R.'s life earlier had he been given the
opportunity. T.T. pushed for the paternity test as soon as Mother acknowledged he might
be R.R.'s father. After the test results confirmed he was R.R.'s father, T.T. gave Mother
money to help support R.R. and expressed a desire to be in his life. When R.R. was
around three months old, T.T. began semi-regular visits with him, which later included
overnight, weekend, and week-long visits. T.T. was persistent about seeing R.R. at every
opportunity and took care of him whenever Mother would allow it. After Mother moved
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in with him, T.T. began spending more time with R.R. At the time of the hearing, T.T.
and Mother had custody of R.R. and Brother every other week.
Mother testified in support of T.T.'s petition. Mother agreed T.T. had always
wanted to be involved in R.R.'s life, noting he had provided financial and other support
since learning he was R.R.'s biological father. Mother said T.T. had a good relationship
with Brother and treated him like a son. If T.T. were named the legal father, Mother did
not believe it would affect R.R.'s bond with Brother. Mother admitted she had earlier
wanted T.R. to be R.R.'s legal father and had opposed T.T.'s desire to change R.R.'s last
name. Mother said she had done so because she was trying to salvage her marriage, but
she now supported T.T. being named the legal father and changing R.R.'s last name.
In response to T.T.'s petition, T.R. provided evidence that he had acted as R.R.'s
primary father for the first several months of his life and had supported R.R. since even
before his birth. T.R.'s feelings for R.R. did not change after learning he was not R.R.'s
biological father. T.R.'s family also did not feel any differently about R.R., and they still
considered R.R. to be T.R.'s son. At the hearing, T.R. highlighted R.R.'s close
relationship with Brother. Several witnesses testified R.R. and Brother had a strong bond
and a special relationship; the witnesses described the relationship as best friends who did
everything together. T.R. believed the boys' relationship would suffer if T.T. were named
the legal father because they would have different custody arrangements and different last
names.
After hearing this testimony and considering photos, text messages, receipts, and
other exhibits in support of the parties' respective positions, the district court denied
T.T.'s paternity petition and declared T.R. the legal father of R.R. Recognizing the
competing presumptions of paternity under K.S.A. 2022 Supp. 23-2208(a), the district
court applied the factors used to consider the best interests of the child in paternity cases
set forth in Greer. The court made detailed findings on the relevant Greer factors and
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determined they weighed in favor of T.R. In reaching its decision, the court relied
primarily on T.R.'s longer and more consistent relationship with R.R. and R.R.'s close
relationship with Brother. The court concluded it would be in R.R.'s best interest to have
the same legal parents as Brother.
T.T. moved to alter or amend the district court's decision. He claimed the court
had given too much deference and weight to T.R.'s presumptions of paternity and did not
meaningfully consider his biological connection to R.R. and the stable family
environment he and Mother provided. T.T. also argued the court improperly weighed the
Greer factors, alleging the court's factual findings defied logic and lacked support. After
considering the parties' written and oral arguments, the district court denied T.T.'s
motion.
The Court of Appeals affirmed the district court's decision. The panel held, in
relevant part, that the district court made no legal or factual errors in weighing the parties'
competing presumptions of paternity under the KPA and in applying the Greer best
interest factors. See In re Parentage of R.R., 2022 WL 7813894, at *3-11.
We granted T.T.'s petition for review on these issues. Jurisdiction is proper. See
K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions);
K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions
upon petition for review).
ANALYSIS
T.T. claims two errors: (1) The district court erroneously applied the KPA
burden- shifting provisions governing parental presumptions and (2) the district court
abused its discretion in balancing the Greer factors to determine parentage. We address
each claim in turn.
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1. The KPA provisions governing parental presumptions
Whether the district court applied the correct legal standard raises a question of
law over which appellate courts exercise unlimited review. Harrison v. Tauheed, 292
Kan. 663, 672, 256 P.3d 851 (2011). Resolution of this issue involves interpretation of
the KPA, which also presents a question of law subject to unlimited appellate review. See
Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
Other than proceedings under the Indian Child Welfare Act, 25 U.S.C. § 1901 et
seq., the KPA governs all proceedings relating to the parentage of a child. K.S.A. 2022
Supp. 23-2201(b). The purpose of the KPA is to provide for the "equal, beneficial
treatment of children." In re Marriage of Ross, 245 Kan. 591, 597, 783 P.2d 331 (1989).
The KPA defines a "parent and child relationship" as "the legal relationship existing
between a child and the child's biological or adoptive parents incident to which the law
confers or imposes rights, privileges, duties and obligations." K.S.A. 2022 Supp. 23-
2205. The parent and child relationship includes the father and child relationship and
"extends equally to every child and to every parent, regardless of the marital status of the
parents." K.S.A. 2022 Supp. 23-2205; K.S.A. 2022 Supp. 23-2206.
In addition to the biological and adoptive relationships explicitly recognized under
K.S.A. 2022 Supp. 23-2205, a father and child relationship may be established by other
circumstances set forth in the KPA. See K.S.A. 2022 Supp. 23-2207(b) (A father and
child relationship "may be established under this act or, in the absence of a final
judgment establishing paternity, by a voluntary acknowledgment of paternity meeting the
requirements of K.S.A. 2022 Supp. 23-2204."); Frazier v. Goudschaal, 296 Kan. 730,
746, 295 P.3d 542 (2013) ("[T]he parental relationship for a father can be legally
established under the KPA without the father actually being a biological or adoptive
parent."). The KPA lists six possible bases for the presumption of paternity that can apply
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to establish a father and child relationship. K.S.A. 2022 Supp. 23-2208(a). Summarized,
these presumptions are:
(1) The man and the child's mother were married when the child was
conceived or born.
(2) Before the child's birth, the man and the child's mother attempted to
marry but the marriage was void or voidable.
(3) After the child's birth, the man and the child's mother attempted to
marry but the marriage was void or voidable and (a) the man
acknowledged paternity in writing, (b) the man consented to his name
on the birth certificate, or (c) the man is obligated to support the child
under written voluntary promise or by court order.
(4) The man notoriously or in writing recognizes paternity of the child,
including but not limited to a voluntary acknowledgment of paternity.
(5) Genetic test results indicate a probability of 97% or greater that the man
is the father of the child.
(6) The man has a duty to support the child under an order of support
regardless of whether the man has ever been married to the child's
mother.
The KPA imposes shifting burdens of proof on parties seeking to establish the
existence of a father and child relationship through one of these presumptions.
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First, the party alleging the existence of a father and child relationship bears the
burden to prove an initial presumption of paternity. In re M.F., 312 Kan. 322, 341-42,
475 P.3d 642 (2020).
Second, if the party alleging the existence of a father and child relationship
succeeds in establishing a presumption, then the burden shifts to the other party to rebut
that presumption. The other party may rebut the presumption of a legal father and child
relationship by presenting
• clear and convincing evidence disproving the basis for the presumption,
• a court decree establishing paternity of the child by another man, or
• a conflicting presumption. K.S.A. 2022 Supp. 23-2208(b).
Third, "[i]f a presumption is rebutted, the party alleging the existence of a father
and child relationship shall have the burden of going forward with the evidence" by a
preponderance of the evidence. K.S.A. 2022 Supp. 23-2208(b); see In re M.F., 312 Kan.
at 341-42 (noting the burden at this step is preponderance of the evidence).
Fourth, if two or more conflicting presumptions arise, "the presumption which on
the facts is founded on the weightier considerations of policy and logic, including the best
interests of the child, shall control." K.S.A. 2022 Supp. 23-2208(c).
T.T. argues the district court misapplied this KPA burden-shifting framework.
Specifically, he asserts the court erred by beginning its K.S.A. 2022 Supp. 23-2208(c)
conflicting presumptions analysis with T.R.'s marital presumption and then imposing on
T.T. the burden to present compelling evidence to overcome that presumption. We are
not persuaded by T.T.'s argument.
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At the beginning of its Memorandum Decision, the district court made paternity
presumption findings based on the facts and the agreement of the parties:
"All the parties recognize that the Petitioner, [T.T.], has a presumption pursuant
to a DNA test obtained from a private source with the consent of the Mother prior to the
filing of this action. The parties also agree that the presumptive father, [T.R.], has a valid
presumption of paternity pursuant to his marriage to the Mother at the time of conception
and birth, but currently has a divorce proceeding pending. Further, [T.R.] is the named
father on the child's birth certificate.
"Neither the Mother or the presumptive father, [T.R.], have challenged the
validity of the DNA test. The Court at pretrial, and prior to the commencement of this
hearing indicated to the parties that it believed that it was the Court's obligation to
proceed as outlined in the case of [Greer v. Greer], 50 Kan. App. 2d 180, 324 P.3d 310(2014)."
The court's findings, to which the parties agreed, resolved the first two steps of the
KPA's burden-shifting framework. First, T.T., as the party seeking to prove the existence
of a parent-child relationship, successfully proved an initial presumption of paternity
under K.S.A. 2022 Supp. 23-2208(a)(5) by providing genetic test results showing a
99.99% probability that R.R. is his biological child. Second, T.R. rebutted T.T.'s
biological presumption of paternity by presenting evidence of two competing
presumptions: (1) he was married to the child's mother when the child was conceived
and born, K.S.A. 2022 Supp. 23-2208(a)(1); and (2) he notoriously recognized his
paternity of the child by consenting to his name as father on the child's birth certificate,
K.S.A. 2022 Supp. 23-2208(a)(4).
Having determined the parties successfully carried their respective burdens at the
first and second steps, the court began its legal analysis at the third and fourth steps of the
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framework, which shifted the burden back to T.T. These steps imposed on T.T. "the
burden of going forward with the evidence" to prove by a preponderance of the evidence
that the biological presumption is "founded on the weightier considerations of policy and
logic, including the best interests of the child." K.S.A. 2022 Supp. 23-2208(b) and (c); In
re M.F., 312 Kan. at 341-42. The district court used the factors set forth in Greer, 50
Kan. App. 2d at 195-96, to balance the competing considerations.
T.T. argues the district court misapplied the KPA by starting its Greer competing-
presumptions analysis with the marital presumption instead of the biological
presumption. T.T. points to several statements in the district court's opinion to support his
argument:
• "[I]t is the Court's belief that [T.R.] is currently the legal father of the child."
• "[T]he Court is of the opinion that no evidence presented at the hearing would
compel the Court to believe that it is in the best interest of the child to undo the
current legal status of [T.R.] as the child's father despite the biology of the child."
• "[T]he Court adopts [the marital] presumption as not being overcome by any of
the evidence presented by [T.T.] in regards to the best interest of the child."
T.T. claims these statements demonstrate the district court started its Greer
competing-presumptions analysis with the marital presumption, which he argues
improperly imposed on him the burden to overcome T.R.'s marital presumption. To the
extent these and other statements support a finding that the district court started its Greer
competing-presumptions analysis with the marital presumption, we find the court's
analysis consistent with the KPA burden-shifting framework. As discussed above, the
third and fourth steps of the framework—the point at which the court is required to weigh
competing presumptions—imposed on T.T. (as the party alleging the existence of a father
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and child relationship) "the burden of going forward with the evidence" to prove the
biological presumption is "founded on the weightier considerations of policy and logic,
including the best interests of the child." K.S.A. 2022 Supp. 23-2208(b) and (c); In re
M.F., 312 Kan. at 341-42. Thus, to the extent that it did so, the district court properly
imposed on T.T. the burden to overcome T.R.'s marital presumption when it weighed
competing interests under K.S.A. 2022 Supp. 23-2208(c). T.T.'s argument claiming
otherwise has no merit.
2. Weighing competing presumptions under Greer
T.T. argues the district court erred in weighing the Greer factors to resolve the
competing paternity presumptions. In Greer, a Court of Appeals panel set forth a non-
exclusive list of factors to consider in resolving competing parental presumptions under
K.S.A. 2013 Supp. 23-2208(c). The factors basically are a compilation of considerations
taken into account by courts across the country making decisions about the best interests
of the child in paternity cases. Greer, 50 Kan. App. 2d at 195-96. The panel
acknowledged its analysis was one of first impression in Kansas and compiled the factors
"to provide future guidance when courts are faced with competing presumptions." 50
Kan. App. 2d at 193.
The Greer panel noted that a best-interests analysis is "incredibly fact-specific and
rarely limited to a narrow number of factors," and recognized that "courts weighing two
or more conflicting presumptions may consider a wide array of nonexclusive factors
when deciding which presumption serves the child's best interests." 50 Kan. App. 2d at
196. The panel cited 10 factors that courts traditionally have used to consider the best
interests of the child in paternity cases:
"(1) whether the child thinks the presumed father is his or her father and has a
relationship with him; (2) the nature of the relationship between the presumed father and
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child and whether the presumed father wants to continue to provide a father-child
relationship; (3) the nature of the relationship between the alleged father and the child
and whether the alleged father wants to establish a relationship and provide for the child's
needs; (4) the possible emotional impact of establishing biological paternity; (5) whether
a negative result regarding paternity in the presumed father would leave the child without
a legal father; (6) the nature of the mother's relationships with the presumed and alleged
fathers; (7) the motives of the party raising the paternity action; (8) the harm to the child,
or medical need in identifying the biological father; (9) the relationship between the child
and any siblings from either the presumed or alleged father; and (10) whether there have
been previous opportunities to raise the issue of paternity." Greer, 50 Kan. App. 2d at
195 (citing 1 Elrod and Buchele, Kansas Family Law § 7.15 [1999]).
The panel also referenced several additional factors that may be considered:
"'Time may be a major factor' in determining best interests, as well as 'the
notoriety of the child's situation in the community,' the stability of the home in which the
child will reside, the child's uncertainty regarding the paternity issue, 'and any other
factors that will maximize the child's opportunities for a successful life.'" Greer, 50 Kan.
App. 2d at 195 (quoting 1 Elrod and Buchele, Kansas Family Law § 7.15 [1999 & Supp.
2013]).
Although it has been almost a decade since the Court of Appeals issued its Greer
opinion adopting the best interests of the child factors as the primary legal analysis used
to weigh competing paternity presumptions under K.S.A. 2013 Supp. 23-2208(c), no
party has ever asked this court to adopt it. In fact, the parties here do not ask us to adopt
the Greer factors. Nor do they challenge the district court's decision to apply the Greer
factors to weigh competing paternity presumptions. Instead, T.T. argues the district court
erred in weighing the Greer factors to resolve the competing paternity presumptions.
Because the parties argued the Greer factors to the district court, the district court
used the Greer factors to weigh and resolve competing paternity presumptions, and T.T.
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frames his issue on review as one of error by the district court in weighing the Greer
factors, we will use the Greer factors to decide whether the district court abused its
discretion in weighing them. But we do so without adopting them or assessing whether
they should be considered the proper legal standard for the court to determine "the
presumption which on the facts is founded on the weightier considerations of policy and
logic, including the best interests of the child." K.S.A. 2022 Supp. 23-2208(c).
Weighing conflicting presumptions and determining the best interests of a child
involve judgment calls for the district court, which hears the evidence directly. We
review these decisions only for an abuse of discretion. See State, ex rel. Secretary, DCF
v. M.R.B., 313 Kan. 855, 861-62, 491 P.3d 652 (2021). A judicial action constitutes an
abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would agree with the district court's judgment; (2) it is based on an error of law; or
(3) substantial competent evidence does not support a finding of fact on which the
exercise of discretion is based. 313 Kan. at 861-62; Biglow v. Eidenberg, 308 Kan. 873,
893, 424 P.3d 515 (2018). The party asserting the district court abused its discretion bears
the burden of showing such abuse of discretion. Gannon v. State, 305 Kan. 850, 868, 390
P.3d 461 (2017).
T.T. argues the district court abused its discretion by arbitrarily and unreasonably
weighing the competing presumptions based on unconscious bias, prejudice, and personal
preference rather than substantial competent evidence. We construe T.T.'s argument to
allege an abuse of discretion under both the first and third options. Under the first option,
he alleges the district court's decision finding T.R.'s presumptions weightier than T.T.'s
presumption is arbitrary, fanciful, and unreasonable. Under the third option, he alleges
substantial competent evidence does not support the factual findings relied on by the
district court in assessing the Greer factors. We address T.T.'s allegations in reverse
order.
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a. Substantial competent evidence
Substantial competent evidence refers to legal and relevant evidence a reasonable
person could accept as being adequate to support a conclusion. Geer v. Eby, 309 Kan.
182, 190, 432 P.3d 1001 (2019). T.T. suggests that—in the context of weighing and
deciding competing parental presumptions—clear and convincing evidence is required to
satisfy the substantial competent evidence standard.
T.T.'s suggestion conflates the language in the statutes. See K.S.A. 2022 Supp. 23-
2208(b) ("A presumption under this section may be rebutted only by clear and convincing
evidence, by a court decree establishing paternity of the child by another man or as
provided in subsection [c]."); K.S.A. 2022 Supp. 23-2208(c) ("If two or more
presumptions under this section arise which conflict with each other, the presumption
which on the facts is founded on the weightier considerations of policy and logic,
including the best interests of the child, shall control."). Subsection (b) provides that one
way to rebut the initial presumption of paternity is by clear and convincing evidence. But
subsection (c)—the provision addressing conflicting presumptions—does not mention
clear and convincing evidence. By including the clear and convincing language in
subsection (b) and not in subsection (c), the Legislature implicitly declared that clear and
convincing evidence is not required to resolve competing statutory presumptions. See In
re M.F., 312 Kan. at 341-42 ("The ultimate burden placed on the party seeking
recognition of the relationship can be discharged by a preponderance of the evidence, as a
'clear and convincing evidence' standard is not specified in the way it is on rebuttal of the
initial presumption."). Thus, T.T. had the ultimate burden to establish, by a
preponderance of the evidence, that his biological presumption was founded on the
weightier considerations of policy and logic, including the best interests of the child. The
district court made findings on the Greer factors to determine whether T.T. met his
burden.
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As discussed, we review the district court's Greer factor findings for substantial
competent evidence. See Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015).
The court's findings on each factor are summarized below. Although the factors refer to
both a "presumed" father and an "alleged" father, the district court appeared to consider
both T.R. and T.T. presumed fathers.
1. Whether the child thinks the presumed father is his or her father and has a
relationship with him: The district court found R.R.'s concept of "father" was
limited due to his young age, but he called both T.R. and T.T. "'Dada'" and had a
relationship with both men. The court found this factor weighed in favor of T.R.
because he had been "far more the committed father to this point" but agreed T.T.
would have been just as committed if given the opportunity.
2. The nature of the relationship between the presumed father and child and whether
the presumed father wants to continue to provide a father-child relationship: The
court found this factor favored T.R. because he had "far more of a father/son
relationship than [T.T.]," noting that T.T.'s relationship with R.R. was based on
Mother's decisions. The court concluded that "the natural relationship, at this time,
of father/child lies with [T.R.]."
3. The nature of the relationship between the alleged father and the child and
whether the alleged father wants to establish a relationship and provide for the
child's needs: The court found both T.R. and T.T. wanted to continue their
relationships with R.R. and provide for his needs. The court appeared to weigh this
factor in T.R.'s favor, finding that he had been providing for R.R. his entire life.
The court did note that T.T. also would have done so had he been given the
opportunity.
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4. The possible emotional impact of establishing biological paternity: The court
expressed a belief this factor would have "very little impact" due to R.R.'s age but
found taking away T.R.'s father relationship and giving it to T.T. would not
improve R.R.'s situation or be in his best interests.
5. Whether a negative result regarding paternity in the presumed father would leave
the child without a legal father: This factor did not apply here.
6. The nature of the mother's relationships with the presumed and alleged fathers:
The district court found this factor favored T.R. due to the certainty of Mother's
relationship with him. Although Mother and T.R. were in the process of divorcing,
they would continue to co-parent Brother. The court noted Mother had initially
supported T.R. being named R.R.'s father, but later supported T.T.'s desire to seek
legal paternity after her relationship with T.T. became more serious. The court
found the possibility of Mother and T.T. having additional children together in the
future did not outweigh the certainty of Mother's relationship with T.R.
7. The motives of the party raising the paternity action: The court found T.T. had
"no sinister motives" and assigned no weight to this factor.
8. The harm to the child, or medical need in identifying the biological father: The
court noted T.T. already had been identified as the biological father and found this
factor had no bearing on R.R.'s best interests.
9. The relationship between the child and any siblings from either the presumed or
alleged father: The court found maintaining full brotherhood between R.R. and
Brother weighed in T.R.'s favor.
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10. Whether there have been previous opportunities to raise the issue of paternity:
The court found T.T. timely filed his petition and assigned no weight to this factor.
The district court also referenced the additional factors in Greer that may be
considered in determining the best interests of a child, including "the notoriety of the
child's situation in the community, the stability of the home in which the child will reside,
the child's uncertainty regarding the paternity issue and any other factors that will
maximize the child's opportunity for success in life." The court found that while both
T.R. and T.T. had "the ability to provide opportunities for a successful life," the totality
of the circumstances weighed in T.R.'s favor.
T.T. agrees that the district court properly weighed factor 9—R.R.'s relationship
with Brother—in T.R.'s favor. But he claims substantial competent evidence does not
support the district court's findings in favor of T.R. with respect to the other factors.
Specifically, he argues the evidence supports a finding of neutrality with respect to
factors 1, 2, 3, and 6 and a finding in favor of him with respect to factors 4, 8, and the
additional factors.
To the extent T.T.'s arguments ask this court to reweigh the evidence, we must
decline this invitation. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). And
contrary to T.T.'s remaining arguments, we find substantial competent evidence supports
the district court's findings that factors 1, 2, 3, and 6 weigh in T.R.'s favor, given the
nature and length of T.R.'s relationship with R.R. and the certainty of T.R.'s relationship
with Mother. Even if we were to find that T.T. had introduced equally compelling
evidence relating to each of these factors, we may not disturb district court findings
supported by substantial competent evidence. See Peterson, 302 Kan. at 106.
T.T.'s arguments alleging a lack of substantial competent evidence to support
factor 4 (the possible emotional impact of establishing biological paternity) and factor 8
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(the harm or medical need in identifying the biological father) fare no better. As
discussed, the district court found that establishing biological paternity would have little
emotional effect on R.R. given his age and that it would not be in R.R.'s best interests to
remove T.R.'s status as father in favor of T.T. The court also noted T.T. already had been
identified as the biological father, so the "harm or medical need" factor carried little
weight in its decision.
T.T. contends the district court erred in assigning minimal weight to these factors
and in limiting its analysis to R.R.'s age at the time of the hearing. T.T. claims the court
should have relied on these factors to give more weight to his biological connection with
R.R. and focused on how biological paternity can impact a child throughout his or her
life. For support, T.T. cites research on the emotional impact of establishing biological
paternity and the harm that may result when a child is cut off from a biological parent.
But as noted by the panel, T.T. did not present this research to the district court, so
the court made no factual findings related to this evidence. As a result, T.T.'s arguments
lack support in the record. See State v. Hutto, 313 Kan. 741, 746, 490 P.3d 43 (2021)
(Appellate courts are courts of review and are unable to make fact findings.); Smith v.
Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993) (assertions in appellate brief are not
sufficient to satisfy inadequacies in record on appeal).
T.T.'s arguments regarding factors 4 and 8 are further undermined by the reality
that these factors assume the biological father has not yet been identified. Factor 4 relates
to the "possible emotional impact of establishing biological paternity," while factor 8
addresses the "harm to the child, or medical need in identifying the biological father."
(Emphasis added.) Greer, 50 Kan. App. 2d at 195. The district court appeared to place
little weight on these factors because genetic testing already had identified and
established T.T. as the biological father. And T.T.'s suggestion that R.R. would suffer
harm if he were cut off from a biological parent lacks support in the record. T.T. and his
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family testified they intend to remain in R.R.'s life regardless of the district court's
paternity decision. In addition, T.R. testified that if named the legal father, he would not
object to R.R. continuing a relationship with T.T.
Under these circumstances—where the biological father was known and present in
the child's life—there is substantial competent evidence supporting the district court's
findings that factors 4 and 8 carried little, if any, weight.
Finally, T.T. alleges a lack of substantial competent evidence to support the
district court's finding that the additional Greer factors weighed in T.R.'s favor. T.T.
claims the community knows he is R.R.'s biological father, his home is as stable as T.R.'s
home, and he and his extended family have an equally strong bond with R.R. as T.R. and
his family do. T.T. contends the district court failed to explain how finding in T.R.'s favor
would affect R.R.'s uncertainty over the paternity issue or maximize R.R.'s opportunity
for success in life. It is worth noting the district court made no specific findings on each
of these factors and did not rely on them significantly in making its decision. Instead, the
court generally mentioned the factors and concluded that the totality of the circumstances
weighed more in favor of T.R. given how long he had been parenting R.R. In any event,
T.T.'s arguments invite this court to reweigh the evidence, which we cannot do. See In re
B.D.-Y., 286 Kan. at 705.
In sum, we conclude substantial competent evidence supports the findings made
by the district court as it weighed and decided the competing parental presumptions
presented here.
b. Unconscious bias, prejudice, and personal preference
T.T. argues the district court abused its discretion by arbitrarily and unreasonably
weighing the competing parental presumptions based on unconscious bias, prejudice, and
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personal preference. To demonstrate this alleged bias, T.T. points to several statements in
the district court's opinion which he claims show the court was predisposed to give more
deference to the marital presumption of legitimacy than to his biological connection to
R.R., regardless of the evidence presented at the hearing:
• "[I]t is the Court's belief that [T.R.] is currently the legal father of the child."
• "[T]he Court is of the opinion that no evidence presented at the hearing would
compel the Court to believe that it is in the best interest of the child to undo the
current legal status of [T.R.] as the child's father despite the biology of the child."
• "It has been this Court's experience, personal and observed, after being involved in
many adoptions and other cases similar to this, that the biology is probably the
most insignificant factor regarding a relationship of a parent and child that there is.
It is the commitment that truly counts."
• "[S]everal courts, including those in Kansas have applied a presumption of
legitimacy of a child born in wedlock as being one of the strongest presumptions
known to the law."
• "[T]he Court adopts that presumption as not being overcome by any of the
evidence presented by [T.T.] in regards to the best interest of the child."
The district court's comments, when read in isolation, could give an impression of
bias against T.T. But when the opinion is read in its entirety, it reflects the court properly
based its ruling on the Greer factors, not on a preferential view of the marital
presumption. The district court correctly recognized T.R.'s presumption was first in time
because he was married to Mother when R.R. was conceived and born and that T.T., as
the party later seeking to establish paternity, bore the burden of "going forward with the
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evidence." See K.S.A. 2022 Supp. 23-2208(b). The district court also properly cited
current Kansas law on the presumption of legitimacy. See In re M.F., 312 Kan. at 340
(citing Bariuan v. Bariuan, 186 Kan. 605, Syl. ¶ 3, 352 P.2d 29 [1960]) (The "ancient
presumption of the legitimacy of a child born in wedlock is one of the strongest
presumptions known to the law."). And the district court's comment about biology being
an insignificant factor was not made in reference to T.T.'s biological connection to R.R.
Instead, the comment related to the court's belief in "the assertions of [T.R.] and his
family that the biology of the child does not matter to them."
Throughout its opinion, the district court referenced the parties' competing
presumptions of paternity and addressed its obligation to proceed as outlined in Greer
and its duty to consider the Greer factors in determining R.R.'s best interests.
Significantly, the court expressly denied relying on the presumption of legitimacy in
making its decision:
"The last consideration that the Court is going to address, and would like to make
clear that whether or not it is a valid consideration, the Court would make the decision of
legal paternity to [T.R.] without it. The Farbo vs. Greer [c]ourt discusses the fact that
several courts, including those in Kansas have applied a presumption of legitimacy of a
child born in wedlock as being one of the strongest presumptions known to the law. In
reviewing the case, the Court is not certain as to the Court of Appeals positions regarding
the legitimacy of this presumption at this time. In reading Farbo v. Greer, the Court
believes that it still exists despite the clear right of biological father to attack the
presumption in consideration of the child's best interest. The Court just wishes to note
that this presumption, if it is still accepted as the common law of our State, does weigh in
favor of [T.R.] and the Court adopts that presumption as not being overcome by any of
the evidence presented by [T.T.] in regards to the best interest of the child. Again, the
Court wants to emphasize that it would have made the same decision regardless of the
application of this presumption based upon the best interest of the child and the factors
set out above." (Emphasis added.)
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And in denying T.T.'s motion to alter or amend, the district court judge again
reiterated his decision was based on the Greer best-interest factors and denied he was
influenced by any bias against T.T. or in favor of T.R.:
• "Certainly, I gave [T.T.] the full benefit of his presumption. It was never a ruling
that his presumption couldn't overcome the presumption of [T.R.]. It was totally a
question of which presumption was weightier for the best interest of the child."
• "I did bring up the presumption of legitimacy, and I made it clear in my opinion, I
want to make it clear now that my decision was made in favor of [T.R.] without
the presumption of paternity—or legitimacy. I think from the Greer case that the
presumption of legitimacy is still a valid factor to be considered by the court, but I
want to make it clear that, even if it's not, my decision would have been the same
as to the best interest of the child without that presumption of legitimacy."
• "For all practical purposes, [T.R.] is the father of the child legitimately unless this
court changed that. He's on the birth certificate. He was married to the mother at
the time of the child's birth, and I certainly have given [T.T.] the full opportunity
to present his case to the court as to why it would be in the best interest to accept
his presumption of paternity pursuant to biology, and I also considered the
relationship that he developed with the child through basically the consent of the
mother and weighed all of that against the presumption of [T.R.] and the
relationship that he has developed with the child."
• "In this case, we have two fathers that want to be the father. They both have a
presumption that is valid. I weighed the best interest of the child against the—I
guess in light of those presumptions and made the decision that is in the best
interest of the child that [T.R.] continue to be the father."
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• "I had to apply all the factors and make a decision based on those factors, and
certainly several of those factors are weighed against [T.T.], but I gave him a full
benefit of a full hearing and the decision is made totally on the best interest of the
child, and everything that's unfair to [T.T.] would be equally unfair to [T.R.] if I
had made the decision in [T.T.]'s favor."
• "But I also want to make it clear that my opinion is not based on [T.T. having an
affair with Mother]. It's not based on bias toward [T.T.] as a result of that. I'm still
looking, as required in Greer, at what's the best interest of the child moving
forward."
• "I completely indicated when I brought [T.T.'s affair with Mother] up that I put no
weight on that. I actually think the law probably would allow me to, but I put no
weight on that. I put no weight on the fact that he was an interloper into an
existing relationship. I read some cases that are kind of old bring that up, bring
that exact point up, but I'm not using any of that in my decision here today. I'm
taking totally the best interest of the child moving forward. I didn't give any more
weight to the paper than I gave to the biology. I totally looked at the best interest
of the child from this point forward based under all the circumstances."
Based on a comprehensive and careful review of the record, we conclude the
district court properly weighed the parties' competing presumptions of paternity—without
bias or prejudice—by following the KPA's statutory scheme and the guidance set forth in
Greer.
Conclusion
The evidence presented at the hearing left the district court with an impossible
decision. T.T. and T.R. were both good fathers who loved R.R. and wanted to be in his
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life. Both would provide R.R. with a stable and supportive home. Substantial competent
evidence supports the district court's conclusion that T.R.'s presumption of paternity is
based on "the weightier considerations of policy and logic, including the best interests of
the child." See K.S.A. 2022 Supp. 23-2208(c). As a result, we cannot say that the district
court abused its discretion in making its decision.
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
***
STEGALL, J., dissenting: Today's decision begins, "[t]he Kansas Parentage Act
(KPA), K.S.A. 2022 Supp. 23-2201 et seq., recognizes claims of parentage based on
genetics, adoption, and other circumstances giving rise to statutory presumptions of
parentage." Slip op. at 2. As I have previously explained in a series of parentage cases,
this is contrary to the plain language of the statute and turns policies established by our
Legislature upside-down.
Over the past several years, a majority of this court has conjured the idea of a
"presumption of parentage," injected it into Kansas statutes, and then acted as though it
was there all along. But no matter how many times the majority repeats the phrase and
uses it to subvert the plain language of the Kansas Parentage Act, it still doesn't appear in
our law—either in letter or spirit. "There is simply no such thing as a presumption of
parenthood in Kansas law. There is only a presumption of paternity or maternity." In re
Adoption of T.M.M.H., 307 Kan. 902, 932, 416 P.3d 999 (2018) (Stegall, J., concurring
and dissenting).
Our court's habitual ignoring of the distinction between parenthood or parentage (a
legal determination) on the one hand, and paternity or maternity (a factual determination
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grounded in biological reality), on the other, is the root of the problem. "Forgotten" by
today's majority "is the clear statutory statement that the parent-child relationship is
exclusively defined as the 'legal relationship existing between a child and the child's
biological or adoptive parents.'" 307 Kan. at 933 (Stegall, J., concurring and dissenting)
(quoting K.S.A. 2016 Supp. 23-2205). "The ordinary meaning of the words chosen by
our Legislature establishes that the presumptions of paternity in the KPA are aimed at
determining whether a biological relationship exists." 307 Kan. at 930 (Stegall, J.,
concurring and dissenting). "[U]nder any accepted mode of statutory interpretation, the
notion that the plain language of the Kansas Parentage Act means that a person not
biologically related to a child can 'become' a biological parent is untenable." In re M.F.,
312 Kan. 322, 354, 475 P.3d 642 (2020) (Stegall, J., dissenting); In re W.L., 312 Kan.
367, 385, 475 P.3d 338 (2020) (Stegall, J., dissenting) (same). But once more, this is the
road the majority chooses to travel today.
I would instead reverse course on this court's misguided interpretations of the
Kansas Parentage Act, reverse the judgment of the district court, and remand this matter
for further proceedings under a proper understanding of the statute.
WILSON, J., joins the foregoing dissenting opinion.
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