Greer ex rel. Farbo v. Greer
50 Kan. App. 2d 180, 324 P.3d 310 (2014)
Rule of Law:
When a court faces two conflicting presumptions of paternity (e.g., marital and genetic), it must conduct a hearing to weigh these presumptions, considering which is founded on the weightier considerations of policy and logic, including the best interests of the child, before determining legal parentage under K.S.A. 2013 Supp. 23-2208(c).
Facts:
- Jack and Dana Greer married in 2009.
- In August 2011, Jack and Dana separated, and Dana moved in with her father.
- Shortly after separating from Jack, Dana began a dating relationship with John Farbo.
- In February 2012, Jack and Dana reconciled, and Dana ended her relationship with John.
- In March 2012, Dana informed John that she was pregnant.
- Dana gave birth to a daughter, Emily, in October 2012.
- In January 2013, John, Dana, and Emily underwent genetic testing, which determined there was a 99.99% probability that John was Emily’s biological father.
Procedural Posture:
- John Farbo filed a paternity suit in Franklin County District Court to establish himself as Emily's legal father, based on genetic testing.
- The district court scheduled a Ross hearing to determine Emily’s best interests prior to establishing paternity.
- The district court, after conducting the Ross hearing, found that considering the genetic test results was not in Emily’s best interests.
- The district court then found that only the presumption of paternity arising from Dana Greer's marriage to Jack Greer remained, and dismissed the paternity action.
- John Farbo appealed the district court's decision to the Kansas Court of Appeals.
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Issue:
Did the district court err in a paternity action by failing to weigh conflicting presumptions of paternity—one arising from marriage and another from pre-litigation genetic test results—after determining that considering the genetic test results was not in the child's best interests?
Opinions:
Majority - Arnold-Burger, J.
Yes, the district court erred because it failed to weigh the conflicting presumptions of paternity—legitimacy versus genetics—after the genetic test results had already established a presumption of paternity for John Farbo prior to the action being filed. The court explained that under K.S.A. 2013 Supp. 23-2208(a)(1) and (5), both Jack (due to marriage) and John (due to genetic test results indicating 97% or greater probability) had competing presumptions of paternity. Unlike the precedent set in In re Marriage of Ross, which applied when genetic testing was requested during litigation and not yet a presumption, current statutory changes elevate pre-litigation genetic test results to a legal, albeit rebuttable, presumption. Since the genetic test establishing John as Emily's biological father existed prior to the paternity action and no proper objection was lodged, the district court was required to admit and consider these results as a presumption of paternity. Therefore, a Ross hearing to determine whether to consider the genetic test results was not required. The district court committed an error of law by disregarding the genetic test results based on a Ross 'best interests of the child' analysis for admissibility, instead of treating them as an established presumption. Furthermore, K.S.A. 2013 Supp. 23-2208(c) mandates that when presumptions conflict, the court must weigh them to determine which is 'founded on the weightier considerations of policy and logic, including the best interests of the child.' The district court failed to perform this mandatory weighing because it refused to even consider one of the presumptions. The court also rejected the argument of invited error, stating that a court cannot abdicate its duty to apply the correct statutory procedure even if parties stipulate to an erroneous one. The case was reversed and remanded for a hearing to properly weigh the two competing presumptions.
Analysis:
This case significantly clarifies the application of the Kansas Parentage Act (KPA) in paternity disputes where pre-existing genetic test results create a presumption of paternity. It distinguishes cases with pre-litigation genetic tests from the Ross precedent, establishing that such tests must be admitted as a presumption and then weighed against other presumptions, rather than undergoing an initial best-interests analysis for admissibility. This ensures that biological parentage, when scientifically established and presented correctly, receives due legal consideration, impacting future cases by streamlining the process and emphasizing a direct weighing of all presumptions based on policy, logic, and the child's best interests.
