Fall 2006 open memo assignment ai sperm donor paternity rights pleadings doc

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Fall 2006 open memo assignment ai sperm donor paternity rights pleadings doc

  1. 1. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} PETITION TO ESTABLISH PATERNITY AND CUSTODY AND FOR CHANGE OF NAME COMES NOW, the Petitioner, David R. Covington , by and through his counsel,Benjamin Swank, and hereby states and alleges as follows: 1. Petitioner is now, and has been more than sixty (60) days preceding thefiling of this Petition, an actual bona fide resident of the State of Kansas, and the Petitioneris currently a resident in good faith of Johnson County, Kansas, residing at 7115 S.W.Forest Drive, Olathe, Kansas 66219. 2. Two (2) children were born to the parties during this relationship, to wit: Catalyn M. Warren, d/o/b June 18, 2006, and Carson L. Warren, d/o/b June 18, 2006. Page 1 of 38
  2. 2. 3. Petitioner, David R. Covington, upon information and belief, is the father of the afore-mentioned children, and genetic testing should be ordered for the parties to confirm the Petitioner’s paternity of the children. 4. If, as Petitioner alleges upon information and belief, he is determined genetic testing to be the father of the children, Petitioner alleges that they were conceived in Kansas City, Missouri, by means of artificial insemination. 5. At the time the children were conceived, Petitioner resided in Independence, Missouri. Petitioner moved to his current residence in Olathe, Kansas on or about May 4, 2006, in anticipation of the children’s birth. 6. Petitioner is a fit and proper person to be awarded joint legal custody ofthe minor children and is financially capable of providing for the needs of the children. 7. No child support or schedule of parenting time has yet been established. 8. Petitioner further states: a) The children’s present address is 3629 S.W. Auburn Road, Topeka, Kansas. b) The names and present address of persons with whom the children have lived within the past five (5) years are as follows: Sarah R. Warren, 3629 S.W. Auburn Road, Topeka, Kansas. c) The Petitioner is a party to Case No. 06-JC-372 and 06-JC-373 pending in Johnson County District Court. d) In Case Nos. 06-JC-372 and 06-JC-373, Respondent is seeking termination of Petitioner’s parental rights. e) The Petitioner knows of no person not a party to the proceedings who has physical custody of the children or claims to have Page 2 of 38
  3. 3. custody or visitation rights with respect to the children. 9. Because the minor children reside within the State of Kansas and both parties currently reside in Kansas, this Court has jurisdiction over this matter. 10. Should genetic testing confirm, as Petitioner believes in good faith, that heis the father of the children, they were conceived by artificial insemination in Kansas City,Missouri, and therefore Missouri law applies with respect to the parental rights of thePetitioner. 11. If it is determined, once genetic testing is complete, that David R.Covington is in fact the father of the afore-mentioned children, as he in good faithbelieves, Petitioner requests that Catalyn M. Warren’s name be changed to Catalyn M.Covington, that Carson L. Warren’s name be changed to Carson L. Covington, and thatDavid R. Covington be named the natural father on both children’s birth certificates,pursuant to K.S.A. 38-1130. WHEREFORE, Petitioner prays this Court enter an Order for genetic testing toestablish paternity of the minor children; for custody of the minor children; for childsupport and a schedule of parenting time; and upon the determination of paternity, forchange of the children’s names to Catalyn M. Covington and Carson L. Covington; forDavid R. Covington to be named as the natural father on the children’s birth certificates,and such further relief as the Court deems just and equitable. Respectfully submitted,Dated: June 28, 2006 ___________/s/____________________ Page 3 of 38
  4. 4. Benjamin Swank Kansas Bar #18919 2913 S.W. Wanamaker Road Topeka, Kansas 66614 (785) 297-8002 IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} AFFIDAVIT ACKNOWLEDGING PATERNITYSTATE OF KANSAS } } ss:COUNTY OF JOHNSON } I, DAVID R. COVINGTON, who is of lawful age, being first duly sworn on oath,depose and state the following: 1. I am an individual presently residing at 7115 S.W. Forest Drive, Olathe,Kansas 66219. 2. I hereby acknowledge the paternity of my son Carson L. Warren anddaughter Catalyn M. Warren, both born on June 18, 2006. Page 4 of 38
  5. 5. 3. I hereby acknowledge my obligation to provide for the needs and expensesrelated to the care and well-being of my son Carson L. Warren and daughter Catalyn M.Warren. 4. I hereby acknowledge my obligation to provide for the prenatal and natalcare of my son Carson L. Warren and my daughter Catalyn M. Warren. FURTHER AFFIANT SAYETH NOT. VERIFICATION David R. Covington, who is of lawful age, being first duly sworn on oath, states: He is the Petitioner herein; that he has read the above and foregoing document andknows the content thereof; that the statements and allegations contained therein are trueand correct. ___________/s/___________________ David R. Covington, PetitionerSTATE OF KANSAS } } ss:COUNTY OF JOHNSON } BE IT REMEMBERED, that on this 29th day of June, 2006, personally appearedbefore me, a notary public in and for the County and State aforesaid, David R. Covington,who is personally known to me to be the same person who executed this foregoingdocument. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the date lastabove written. ___________/s/___________________ Notary PublicMy Appointment Expires: _9/30/07__ Page 5 of 38
  6. 6. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} APPLICATION FOR APPOINTMENT OF NEXT FRIEND COMES NOW, the Petitioner, David R. Covington, and shows the Court that uponinformation and belief, he is the natural father of Carson L. Warren and Catalyn M.Warren, minor children; that Carson L. Warren and Catalyn M. Warren currently residewith Respondent in or near Topeka, Kansas; that Petitioner desires to institute an action onbehalf of the minor children above-named in the District Court of Johnson County, Kansas,to establish by genetic testing that he is in fact the natural biological father of Carson L.Warren and Catalyn M. Warren, and that he, the Petitioner and the children’s putativefather, may be appointed as their next friend for the purpose of instituting this action. Page 6 of 38
  7. 7. VERIFICATION David R. Covington, who is of lawful age, having been first duly sworn, states: He is the Petitioner herein; that he has read the above and foregoing document andknows the content thereof; that the statements and allegations contained therein are trueand correct. ___________/s/___________________ David R. Covington, PetitionerSTATE OF KANSAS } } ss:COUNTY OF JOHNSON } BE IT REMEMBERED, that on this 29th day of June, 2006, personally appearedbefore me, a notary public in and for the County and State aforesaid, David R. Covington,who is personally known to me to be the same person who executed this foregoingdocument. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the date lastabove written. ___________/s/___________________ Notary PublicMy Appointment Expires: _9/30/07__ Page 7 of 38
  8. 8. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} CONSENT OF NEXT FRIEND I, DAVID R. COVINGTON, consent and am willing to serve as the Next Friend ofCarson L. Warren and Catalyn M. Warren, minor children, for the purpose of instituting anaction to determine their paternity. VERIFICATION David R. Covington, being of lawful age, having been first duly sworn, states: He is the Petitioner herein; that he has read the above and foregoing document andknows the content thereof; that the statements and allegations contained therein are trueand correct. ___________/s/___________________ David R. Covington, Petitioner Page 8 of 38
  9. 9. STATE OF KANSAS } } ss:COUNTY OF JOHNSON } BE IT REMEMBERED, that on this 29th day of June, 2006, personally appearedbefore me, a notary public in and for the County and State aforesaid, David R. Covington,who is personally known to me to be the same person who executed this foregoingdocument. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the date lastabove written. ___________/s/___________________ Notary PublicMy Appointment Expires: _9/30/07__ Page 9 of 38
  10. 10. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} ANSWER AND RESPONSE TO PETITION TO ESTABLISH PATERNITY, CUSTODY, AND CHANGE OF NAME COMES NOW, Sarah R. Warren, by and through her attorney, Susan Anderson,and for her Answer and Response to the Petition filed herein, denies each and every, all andsingular, the allegations and averments contained therein unless specifically admittedtherein. 1. Respondent is without sufficient information or knowledge to form a belief as to the truth of the allegations in paragraph 1. 2. Respondent admits that she has two children, namely Catalyn M. Warren and Carson L. Warren, but denies that a relationship existed between Respondent and Petitioner. Respondent challenges Petitioner’s acknowledgement of paternity pursuant to K.S.A. 38-1114(f) on the basis that Petitioner was a sperm Page 10 of 38
  11. 11. donor only, no written agreement ever existed between Petitioner and Respondent regarding artificial insemination, and that absent a written agreement, Petitioner is not considered in law to be the natural father of Catalyn M. Warren and Carson L. Warren.3. Respondent denies the allegation in paragraph 3 in its entirety based on K.S.A. 38-1114(f), which makes clear that Petitioner is not considered in law to be the birth father of Catalyn M. Warren and Carson L. Warren.4. Respondent denies the allegation in paragraph 4 that Petitioner is the natural father of Catalyn M. Warren and Carson L. Warren. Respondent admits the allegation in paragraph 4 that the children were conceived in Kansas City, Missouri, by means of artificial insemination.5. Respondent admits the allegation in paragraph 5 that at the time the children were conceived, Petitioner resided in Independence, Missouri. Respondent has insufficient information to either admit or deny the second sentence of paragraph 5.6. Respondent denies the allegation in paragraph 6 in its entirely and does not believe that Petitioner is entitled to any type of custody based on K.S.A. 38-1114(f). Further, Respondent does not believe Petitioner is a fit and proper person to be awarded joint custody of Catalyn M. Warren and Carson L. Warren, as detailed in Petition to Terminate Parental Rights filed in 06-JC-372 and 06-JC-373, currently pending in Johnson County District Court. Page 11 of 38
  12. 12. 7. Respondent admits the allegation in paragraph 7 that no child support or schedule of visitation have been established and alleges that neither should be established as Petitioner is not considered in law to be the natural father of Catalyn M. Warren and Carson L. Warren under K.S.A. 38-1114(f).8. Respondent admits the allegations in paragraph 8.9. Respondent admits the allegation in paragraph 9.10. Respondent denies the allegation in paragraph 10 that the Petitioner is the father of the children. Respondent admits that the children were conceived in the State of Missouri as the Respondent’s fertility doctor is located in Kansas City, Missouri and the artificial insemination took place in Kansas City, Missouri.11. Respondent denies the allegation and request for a name change in its entirety based on K.S.A. 38-1114(f), that David R. Covington is not considered in law to be the natural father of Catalyn M. Warren and Carson L. Warren. Further, Respondent objects to Petitioner’s request to change the children’s surname to Covington on the basis that the consent of both parties is required under K.S.A. 38-1130. Respondent does not consent to such a name change for a number of reasons, including but not limited to, the fact that it is not in the best interest of her children. Respondent contends that absent her consent, both Kansas statute and case law support her objection to changing the minor children’s name from Warren to Covington. _________/s/__________________ Susan Anderson, #15897 Attorney for Respondent Page 12 of 38
  13. 13. STATE OF KANSAS } } ss:COUNTY OF JOHNSON } I, Sarah R. Warren, of lawful age, being first duly sworn upon my oath, accordingto law, state that I am the respondent in the above matter and that the allegations andaverments contained in my Answer and Response to Petition are true and correct to the bestof my knowledge and belief. _________/s/__________________ Sarah R. WarrenSUBSCRIBED AND SWORN before me this 14th day of June, 2006._________/s/__________________ ________12/31/08_____________Notary Public My Appointment Expires CERTIFICATE OF SERVICE Susan Anderson hereby certifies that on the 14th day of July, 2006, that she serveda copy of the above and foregoing Answer and Response to Petition to Establish Paternity,Custody, and Change of Name, by U.S. Mail, first class, postage prepaid, addressed asfollows: Benjamin Swank Attorney at Law 2913 S.W. Wanamaker Road Topeka, Kansas 66614 _______________________________ Susan Anderson, #15897 Page 13 of 38
  14. 14. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} MOTION TO DISMISS Respondent, Sarah R. Warren, by her attorney, Susan Anderson, respectfully asksthis Honorable Court to issue an Order dismissing the captioned action pursuant to K.S.A.60-212(b)(6) for failure to state a claim upon which relief can be granted. In support of thisMotion, Respondent alleges as follows: 1. Petitioner lacks standing to file a paternity action pursuant to K.S.A.38-1114(f), which states, The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. 2. Petitioner David R. Covington’s acknowledgement of paternity is invalidpursuant to K.S.A. 38-1114(f) in that Carson L. Warren and Catalyn M. Warren were not Page 14 of 38
  15. 15. conceived as the result of a sexual relationship between the Petitioner and Respondent.Rather, Petitioner was only the donor of semen provided to a licensed physician for thepurpose of inducing Respondent’s pregnancy by artificial insemination. Moreover,Respondent has never been Petitioner’s wife, and the parties had no written agreementconcerning this matter. 3. In order for the donor of sperm to be treated in law as the natural father of achild born to a woman who is not the donor’s wife, K.S.A. 38-1114(f) specifically requiresa “written” agreement between the sperm donor and the woman who is thus impregnatedby artificial insemination. 4. The express inclusion of the term “written” in K.S.A. 38-1114(f) makesclear that absent a written document executed by the donor and the woman, a donor ofsemen lacks parental rights with respect to any child conceived by use of sperm provided toa licensed physician for purposes of artificial insemination, as in this case. 5. Absent such a written agreement, Petitioner David R. Covington has norights in connection with the minor children, Catalyn M. Warren and Carson L. Warren;therefore, he lacks standing to file a paternity action and fails to state a claim upon whichrelief can be granted. 6. Because Petitioner David R. Covington is not considered in law to be thebirth father and next friend of Catalyn M. Warren and Carson L. Warren, this action shouldbe dismissed with prejudice. Page 15 of 38
  16. 16. WHEREFORE, Respondent prays the Court issue an Order dismissing Case No.06-D-7419 with prejudice, and granting Respondent such other and further relief as theCourt deems just and equitable. Respectfully submitted, ___________________________ Susan Anderson, #15897 Attorney for Respondent CERTIFICATE OF SERVICE I, Susan Anderson, do hereby certify that I have served a true and correct copy ofthe above and foregoing document on counsel of record by placing the same in the U.S.mail, postage prepaid, on the 28th day of July, 2006, addressed to: Benjamin Swank 2913 S.W. Wanamaker Road Topeka, Kansas 66614 Attorney for Petitioner Kevin J. Jones 999 S. Fairlawn Road Topeka, KS 66614 Guardian Ad Litem (Cases 06-JC-372 and 06-JC-373) _______________________________ Susan Anderson, #15897 Attorney for Respondent Page 16 of 38
  17. 17. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION TO DISMISS COMES NOW the Petitioner, David R. Covington, by and through his counsel,Benjamin Swank, and in response to Respondent’s Motion to Dismiss submits thefollowing memorandum: PRELIMINARY STATEMENT This case and the related child-in-need-of-care (CINC) petition arise in the contextof a “known donor of sperm.” This is a case that involves nontraditional family structureand artificial reproductive techniques. David Covington, Petitioner, and Sarah Warren,Respondent, were friends who entered into an agreement that Respondent would bear achild conceived by artificial insemination with Petitioner’s sperm. Because the parties Page 17 of 38
  18. 18. were close friends, they did not memorialize their agreement. Mr. Covington to this daystill understands that he is the father of the children which born on June 18, 2006, Carsonand Catalyn. In reading the petition Respondent filed in the related CINC case, sheunderstood that Mr. Covington would be the father, but she claims that her agreement wassubject to a condition that he contribute to expenses of her pregnancy. Respondent claimsthat Mr. Covington failed to pay and therefore he is merely a sperm donor. Petitionerclaims that he did in fact pay some contributions to the cost of Warren’s pregnancy, and inany event the parties’ agreement was clear that he would be the father of the child orchildren born as a result of the artificial insemination procedure. K.S.A. 38-1114(f) provides that under certain conditions, a sperm donor is not to betreated in law as a birth father. Warren claims that those conditions are met in this case.Covington claims to the contrary that the conditions are not met because he did not providethe sperm to a physician, but rather to Sarah Warren. Secondly, Covington claims thatWarren’s CINC petition is sufficient in itself to qualify as a writing, in which she agreedthat Petitioner, as the sperm donor, would be the birth father of the offspring. Whetherprecedent or subsequent, any condition is absolutely irrelevant because the statute onlyrequires that the mother and donor must agree that the donor will be treated as the birthfather. The parties in this case clearly have conflicting recollections. However, Covingtoncontends that even if the recollections conflict, it is immaterial to the resolution of thisaction. All the statute requires is that the parties agree at some point that Petitioner wouldbe treated as the birth father, and that they do so in writing. Page 18 of 38
  19. 19. Initially, Warren filed a CINC petition in an effort to cut off the parental rights ofCovington. In response, Covington filed this paternity action, and subsequently Warrenrecognized that she might have recourse under K.S.A. 38-1114(f). The course of eventsshows that it was in fact the parties’ intent that Covington be considered the children’sbirth father, and whatever subsequent change of heart Respondent may have had isimmaterial. This court should hold that parties, as a matter of law, cannot modify thebonds of parentage merely by agreement, written or otherwise. There is absolutely no Kansas case law on point to assist in resolving the novelissues in this case. The statutory framework in Kansas is similar but distinct from otherstates that have adopted the Uniform Parentage Act (UPA). Covington strongly andsincerely desires to be the father of his children in every sense of the word. He is confidentthat the evidence forthcoming at trial will not support the allegations in the Respondent’sCINC petition. Since the children have no any other presumptive or putative father, a Rosshearing is not necessary. See In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989). STATEMENT OF UNCONTROVERTED FACTS 1. David R. Covington and Sarah R. Warren agreed to attempt for Sarah tobecome pregnant through artificial insemination with David’s sperm. 2. David and Sarah are not married, but they know each other well. 3. On July 7, 2005, David and Sarah traveled together to the fertility clinic ofDr. Gregory Parker, in Kansas City, Missouri, where artificial insemination was performed. 4. On July 7, 2005, David provided sperm to a physician for the artificialinsemination procedure. Page 19 of 38
  20. 20. 5. The artificial insemination on July 7, 2005 failed. 6. On September 10, 2005, David provided sperm in a plastic container toSarah at his Missouri home. Sarah provided the sperm to a Missouri physician, whoartificially inseminated her using David’s sperm sample. 7. Thereafter, Sarah became pregnant. 8. On June 18, 2006, Sarah gave birth to fraternal twins: a boy, Carson, and agirl, Catalyn. 9. On June 19, 2006, Sarah filed a Child in Need of Care petition alleging inpart that David is the father of Carson and Catalyn. 10. On June 28, 2006, David filed this paternity action alleging that he is thefather of Carson and Catalyn. 11. Sarah has alleged in her Child in Need of Care (CINC) Petition, JohnsonCo. Case Nos. 06-JC-372 and 06-JC-373, that she expected prenatal support from David. 12. David has alleged that he offered and, in fact, did provide prenatal support. 13. On the day of their birth, June 18, 2006, David attempted to see Carson andCatalyn. 14. David and Sarah did not enter into a prenatal joint parenting agreement, or awritten prenatal agreement recording their agreement with respect to the artificialinsemination or the ensuing pregnancy and birth. Page 20 of 38
  21. 21. 15. David Covington consented to the artificial insemination procedure and tothe provision of his sperm with the belief and understanding that he would be the father ofthe future children conceived with his sperm. 16. Sarah Warren is a lawyer who practices in the field of family law andparenting issues. 17. No physician in Topeka or Lawrence, Kansas, will perform artificialinsemination on an unmarried woman. ISSUES 1. Under choice-of-law principles, does Kansas law or Missouri law governthe artificial insemination agreement between Sarah Warren and David Covington? 2. If Kansas law applies, does K.S.A. 38-1114(f) apply, and if so, does it barPetitioner’s paternity action for lack of a written agreement? 3. If Missouri law applies, is Petitioner’s paternity action likely to prevail onthe merits? DISCUSSION This is a matter of first impression in the State of Kansas, and there are no cases onpoint. The gist of Respondent’s argument is that Petitioner lacks standing to file a paternityaction because K.S.A. 38-1114(f) provides, The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of the child thereby conceived unless agreed to in writing by the donor and the woman. Page 21 of 38
  22. 22. The problem with Respondent’s argument is that the standing statute applicable to apaternity proceeding is K.S.A. 38-1115, specifically K.S.A. 38-1115(a)(1): “A child, orany person on behalf of such child may bring an action at any time to determine theexistence of a father and child relationship which is presumed under K.S.A. 38-1114.” Thestanding statute makes clear that a child or any person may bring such action and thereforehas standing as a matter of law. See K.S.A. 38-1115(a)(1). Kansas courts have typically not resorted to standing doctrines to cut off theopportunity of a putative father to seek a paternity determination. See generally In reD.B.S., 20 Kan. App. 2d 438 (1995) (discussing generally 14th Amendment and DueProcess rights of putative fathers.). In adopting a balancing test between the State’s interestin protecting children and a putative father’s liberty interest, the Court of Appeals stated,“It is clear that a bright line statement that the State’s interests in denying a determinationof paternity outweigh the putative father’s interest is inappropriate.” Id. at 453. A naturalfather of a child who seeks parental involvement from the time of birth is typically found tohave acquired a constitutionally protected interest. Id. at 451-52. Thus, the putative fatherof a child, even one born out of wedlock, clearly has a constitutionally protected libertyinterest, which confers standing to bring a paternity action. The real issue raised by Respondent is whether the Kansas Legislature intended, byadopting K.S.A. 38-1114(f), to deprive legal standing to a sperm donor to seek adetermination of parentage when the donated sperm is used by a physician for the purposeof artificial insemination. The Kansas statute alters the statutory presumption of paternity,not the standing statute, and therefore the issue should be determined by this court on its Page 22 of 38
  23. 23. merits . Nor was the donor statute enacted as a stand-alone provision. Finally, the standinglanguage in Kansas is broader than the parallel language in the UPA. Petitioner is not limited to the presumption of paternity based on consanguinity orbirth. K.S.A. 38-1114(a)(4) is also applicable to the facts of this case. The presumption ofpaternity based on notoriety and acknowledgement is not displaced by the terms ofsubsection (f) because it does not invoke the status of birth father or consanguinity. TheCINC petition filed by Respondent makes numerous admissions that Petitioner hadpublicly and notoriously acknowledged that he is in fact the father of the children. Byfiling this paternity action, Petitioner also satisfies the writing requirement of subsection (a)(4). Petitioner thus has standing to proceed to the merits on that basis as well. K.S.A. 38-1114(f) is not as clear a statement as Respondent suggests. First, thesperm must be provided to a physician. As Respondent acknowledged in her CINCpetition, Petitioner provided the sperm to Respondent at his home in Missouri, not to thephysician at his office. Thus, the statutory restriction “provided to a physician” cannot bemet, and Petitioner should be permitted to proceed with his claim that he is the children’sbirth father. Furthermore, the legal presumption that a sperm donor may not be treated as a birthfather is not irrebuttable. It is modified by the phrase, “unless agreed to . . . by the donorand the woman.” K.S.A. 38-1114(f). This phrase’s plain meaning does not require anagreement on parenting; it merely requires that the man and the woman each agree that thedonor be treated as the birth father. The Petition in this case makes clear that Mr.Covington agrees to be treated as the birth father, and the Respondent’s petition filed in the Page 23 of 38
  24. 24. related CINC case effectively concedes that the mother admits as much. At minimum, theCINC petition alleges that Respondent agreed that Petitioner would be treated as the fatherif he paid her pregnancy expenses, changed his ways, or otherwise complied with herwishes in some fashion. While Petitioner believes that the parties’ agreement that he be treated as the birthfather was in fact unconditional, even a conditional agreement would suffice under thestatute’s clear language. Petitioner contends that a child’s natural parents, as a matter oflaw, do not have the ability to create or modify the bonds of their parenthood by agreementonly. In this case, once Respondent agreed that the Petitioner would be treated as thechildren’s birth father, all conditions required by K.S.A. 38-1114(f). were met. Therequirement that such an agreement be memorialized has been satisfied in this case byreading the parties’ respective pleadings together. There is simply no statutory requirementthat the writing be joint, precedent, concomitant, or contemporaneous. Challenging Petitioner’s standing in this paternity action is not the appropriatemeans to resolve this case. For all of these reasons, Petitioner respectfully requests thatthis Honorable Court deny Respondent’s Motion to Dismiss. Respectfully submitted, ____________________________ Benjamin Swank Kansas Bar #18919 2913 S.W. Wanamaker Road Topeka, Kansas 66614 (785) 297-8002 (785) 297-0744 Fax Page 24 of 38
  25. 25. CERTIFICATE OF SERVICE I, Benjamin Swank, hereby certify that a true and correct copy of the foregoinginstrument was forwarded by U.S. mail, postage prepaid, on this __11th__ day of August,2006, addressed as follows: Susan Anderson, #15897 1234 S.W. Oakley, Suite C Topeka, Kansas 66604-1899 Attorney for Sarah R. Warren Kevin J. Jones 999 S. Fairlawn Road Topeka, KS 66614 Guardian Ad Litem (Cases 06-JC-372 and 06-JC-373) ____________________________ Benjamin Swank Page 25 of 38
  26. 26. IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS DIVISION 5In the Matter of the Paternity of: }CARSON L. WARREN and }CATALYN M. WARREN, by and }Through Their Natural Father }and Next Friend, } }DAVID R. COVINGTON, } } Petitioner, } Case No. 06-D-7419 }and } }SARAH R. WARREN, } } Respondent. }____________________________________} REPLY BRIEF IN SUPPORT OF RESPONDENT’S MOTION TO DISMISS COMES NOW, Sarah R. Warren by and through her counsel, Susan Anderson, andhereby replies to Petitioner’s Response to Motion to Dismiss, and provides further supportfor dismissal of this action on the basis that Petitioner has failed to state a claim on whichrelief may be granted. The facts and circumstances of this matter are related to a pending CINC petitionoriginally filed in Johnson County District Court, Case Numbers 06-JC-372 and 06-JC-373. The CINC petition was filed in response to circumstances raising a concern toRespondent that David R. Covington was going to seek parental rights to her children, whowere conceived by artificial insemination performed by a licensed physician with the Page 26 of 38
  27. 27. donated sperm from Petitioner. He responded to the CINC petition by immediately filingthis paternity action. Because David R. Covington has brought this paternity actionalleging certain facts already admitted and conceded by Sarah R. Warren in the CINCpetition, the initial facts and circumstances giving rise to the related CINC petition will bediscussed. FACTUAL BACKGROUND Sarah R. Warren is a reputable and experienced attorney who was well aware of therequirements under the law when she sought to have and raise a child as a single parent. Atall times, her intent was to become medically able to conceive and to utilize the medicaltechnology available today with the assistance of a sperm donor in order to achieve herobjective of raising her own child. Ms. Warren consulted with medical experts in fertility,underwent numerous treatments and substantial expense, and performed research into theanonymous sperm bank system of conception — all on her own — in order to conceive. When concerns arose surrounding the notion that a child born of an anonymoussperm donor could encounter medical difficulties that could necessitate access to thechild’s medical history, and the fact that an anonymous donor would eliminate theopportunity to gain potentially life-saving medical assistance that genetically relatedpersons often supply (such as bone marrow donation or organ donation), Sarah R. Warrenconsidered the option of artificial insemination using genetic material (sperm) acquiredfrom a known sperm donor. See Kern & Ridolfi, The Fourteenth Amendment’s Protectionof a Woman’s Right to be a Single Parent Through Artificial Insemination by Donor, 7Women’s Rights L. Rptr. 251, 256 (1982). Ms. Warren followed the requirements of the Page 27 of 38
  28. 28. law with regard to artificial insemination in Kansas using a known sperm donor. SeeK.S.A. 38-1114. Mr. Covington argues that merely because Ms. Warren brought a CINC petitionreferring to him as the “Father,” this somehow completely destroys the parties’ originalintentions and the fact that the applicable statute was followed, consistent with the intentthat Mr. Covington be merely the known donor and not a parental figure for the children.Covington argues that Warren is using the artificial insemination statute, K.S.A.38-1114(f), as an “afterthought” to her CINC petition, when this was actually her originalintention all along. Ms Warren’s CINC petitions were filed as the only legal means shebelieved available to ensure that Petitioner, the known sperm donor, would not secure thepaternal rights he was apparently seeking in spite of the statute and contrary to the parties’original intent. With that in mind, it is important at this juncture to focus on the meaningand intent of the statute at issue to make a proper determination of the status of Mr.Covington under applicable Kansas law. Although Kansas has enacted an artificialinsemination statute, there is no Kansas case law on point. Thus it will be necessary todiscuss case law from other states with similar statutes as persuasive authority. DISCUSSIONI. Kansas law applies. There is every reason to apply Kansas substantive law to this case and no reason toapply Missouri law in this matter. There are constitutional limitations on choice of law.The trial court’s duty is to settle on a choice of law that is neither arbitrary nor Page 28 of 38
  29. 29. fundamentally unfair, and an important element of fairness is the expectation of the parties.Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985). Here, virtually all matters relevant to the issues occurred in Kansas. Missouri doesnot have any significant contact or aggregation of contacts that would create state interestsfor Missouri. Missouri is not a significantly interested state, and the parties, particularlyRespondent, would have never expected Missouri law to apply merely by virtue ofchoosing a Missouri-licensed fertility physician located in Kansas City, Missouri. Although Petitioner provided the sperm donation to Ms. Warren while she wasvisiting him at his Missouri home, she was a Kansas resident at the time he did so. Herprenatal care took place in Kansas, and the children were born in Kansas. Moreover, thechildren have resided with her in Kansas since their birth on June 18, 2006. Further, eventhe Petitioner currently lives in Kansas. Nearly every one of the significant eventsinvolved in this dispute has occurred in Kansas. That Ms. Warren happened to have theartificial insemination procedure performed in Kansas City, Missouri, after Petitioneragreed to donate his sperm while she was visiting him at his home, then in Missouri, arenot by themselves sufficient contacts with Missouri to justify applying the law of that statein this case instead of Kansas law. Further, Ms. Warren’s appointment with the doctor inKansas City, Missouri to carry out the insemination procedure was not a critical aspect ofthe parties’ agreement. The only act of any real legal significance occurring outsideKansas was the actual insemination of Ms. Warren in Kansas City, Missouri. It isirrelevant that Covington happened to reside in Missouri at the time the parties reached Page 29 of 38
  30. 30. their verbal agreement, and that he donated the sperm for the insemination procedure there.For all of these reasons, Kansas law applies to this matter.II. The meaning of the artificial insemination statute in Kansas. K.S.A. 38-l 114(6)(f) is clear and unambiguous on its face. Specifically, itprovides, The donor of sperm provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.Id.. When sperm is provided to a physician for artificial insemination in Kansas, thestatute presumes that the donor is merely a sperm donor, not a parent, absent a writtenagreement to the contrary. Id. There was no written agreement between the parties to thiscase. In fact, Mr. Covington has admitted that the parties never executed a writtenagreement pertaining to his sperm donation. Instead, Petitioner filed this action seeking to override the clear language of thestatute, just to gain rights to the children that he abandoned when he donated sperm to alicensed physician for the purpose of artificial insemination. His belated change of heartdoes not equate to a written agreement conferring parental rights. Petitioner apparently argues that the pleadings in this case and the companion CINCactions by themselves serve as a written agreement. This notion is simply absurd. Awritten agreement contemplates a meeting of the minds. The parties’ respective pleadingsclearly show no such meeting of the minds. It is ridiculous to assert that Ms. Warren Page 30 of 38
  31. 31. agreed that Mr. Covington would have parental rights and obligations simply by filing apetition seeking termination of any parental rights he may or may not have. Ms. Warren filed the CINC petition after Mr. Covington appeared at the hospitaland behaved erratically following the children’s birth. She did so not only to protect herchildren, but also to enforce the verbal agreement. Under the parties’ unwrittenagreement, Petitioner promised simply to donate his sperm to Ms. Warren in exchange forher offer to produce his biological offspring by means of artificial insemination, withoutthe trappings and commitment associated with a traditional, committed heterosexualrelationship. Ms. Warren had no other recourse under the law in which to obtain suchenforcement and protection other than to file a CINC petition. Equally absurd is Mr. Covington’s argument that Ms. Warren’s use of the term“father” to identify him in the CINC petition reflects her intent. Ms. Warren does notdispute that as a sperm donor, Covington is the children’s biological father. However, shecontends that he is not the birth father pursuant to K.S.A. 38-1114(6)(f). The CINCpetition clearly references the agreement between the parties as an agreement thatPetitioner was a sperm donor only. Further, at the pretrial hearing, this Honorable Courtstated its intention to refer to the parties as mother and father for identification purposesuntil an objection was raised by the guardian ad litem. Certainly this Court was notpresuming a legal relationship by this statement; nor was Ms. Warren doing so by using“father” to refer to Covington in the CINC petition. In the companion CINC case, Ms. Warren merely sought to ensure that theagreement of the parties was followed and thus sought to preemptively terminate any Page 31 of 38
  32. 32. potential rights Covington may have believed he had secured. Ms. Warren did notanticipate financial support or any other parental obligation from Mr. Covington. She isnot arguing that if Mr. Covington were to provide financial support and expenses of thepregnancy and delivery, he might be afforded the opportunity to be the legal father. Ms.Warren merely raises these issues in her CINC petition to lend support for her argumentthat Mr. Covington’s behavior during her pregnancy was consistent with his limited statusas a sperm donor only. Ms. Warren simply seeks to enforce the law of Kansas inaccordance with her intentions to establish the single-parent family she rightfully bargainedfor - no more, no less. She simply seeks the benefit of that bargain without interference byPetitioner. Once again, this is a case of first impression in Kansas that comes down to aninterpretation of the statute, which specifically provides in no uncertain terms: (f) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.K.S.A. 38-11l4(f) (emphasis added.) There is absolutely no dispute that the semen was provided “to a licensedphysician.” The fact that Petitioner was too busy to go to the physician with Ms. Warrenthe second time, after going with her the first time, should not result penalizing Respondentfor accepting the donation and providing it to the physician on her own, without any efforton his part. This was not a “self-help” form of artificial insemination. Thus, Petitioner’sargument that he did not “directly” provide the sperm to the physician cannot lead to an Page 32 of 38
  33. 33. absurd result that the statutory presumption has not been met. The statute’s intent is clearand unambiguous. Where the sperm donation is provided to a licensed physician forpurposes of artificial insemination for a woman other than his wife, he is presumably only asperm donor, absent a written agreement to the contrary. Petitioner argues that the statute requires “the sperm donor” to provide the spermsample “directly to” a licensed physician in order for the statute to apply at all, and for thestatutory presumption of non-paternity to arise under the statute. This interpretationviolates the fundamental rule of statutory construction that where the meaning of a statutecan be discerned from the language provided by the legislature, additional words cannot beadded to change that clear meaning. In addition, such an interpretation would lead to anabsurd result. The language of the statute controls. In the instant case, the parties assert differentversions of their pre-insemination agreement. This further proves the purpose of the statuteas a statute of frauds, requiring a written agreement to preserve the parental rights of asperm donor, who is not married to the mother, with respect to the offspring resulting fromartificial insemination. Under these circumstances, absent a written agreement, a spermdonor simply has no parental rights to the offspring. Had Petitioner intended to exercise parental rights to the children, he had theopportunity to do so simply by entering into a written agreement with Ms. Warren. Had hisdonation been conditioned on such rights, Ms. Warren would have surely rejected the offerof the donation and followed through with the donation from the sperm bank that wasgenerally used by her doctor, with whom she had consulted before accepting Petitioner’s Page 33 of 38
  34. 34. sperm donation. To confer parental rights in this instance, when Petitioner donated semento an unmarried woman for the purposes of artificial insemination in the absence of awritten agreement, would fly in the face of the clear language of the Kansas statute. For unmarried women who attempt a pregnancy by artificial insemination by aknown donor in Kansas, the artificial insemination statute clearly creates a presumption ofnon-paternity. While Ms. Warren does not dispute that the “biological father” of theirchildren is Mr. Covington, this is irrelevant to the legal determination whether he hasparental rights. When the Kansas Legislature amended the statute in 1994, it created ageneral presumption of paternity as well as an exception in K.S.A. 38-11l4(f), creating apresumption of non-paternity for a child born as a result of artificial insemination under thesupervision of a licensed physician. The language of the statute is clear, and it reflects the clear intent of the KansasLegislature. Contrary to Petitioner’s assertions, the agreement was clear when he offeredhis semen sample to Ms. Warren to be taken to the physician for insemination infurtherance of her objective to achieve single parenthood. When Petitioner gave her thatsperm sample to take directly to the physician without a written agreement, herelinquished all parental rights and interest in the offspring produced by the sperm sampleand any offspring of the artificial insemination procedure. The parties’ intent was furthermanifested by Petitioner’s disinterest and lack of involvement during Ms. Warren’spregnancy. Page 34 of 38
  35. 35. V. PRE-INSEMINATION INTENTION OF THE PARTIES This matter is before the Court on a determination of law as to whether Mr.Covington has stated a claim for which relief can be granted in light of the artificialinsemination statute and its presumption of non-paternity. This is a straightforward case of statutory interpretation that leaves no room for anargument by Mr. Covington that an oral agreement existed. Even more incredible is hisargument that filing the Respondent’s CINC petition is somehow tantamount to executing awritten agreement to co-parent; the actions of the parties speak to their intent as well.Having researched the options available to her, Ms. Warren wisely chose to accept thedonation from a known donor for the medical history reasons already expressed. Ms.Warren could have chosen insemination with sperm from an anonymous donor, and shecertainly would have done so if she could have imagined the donor would reappear toassert rights as a father when Respondent intended him only to serve as a donor. Ms.Warren knew the law and her options, and she made it clear that she intended to be a singleparent. It defies logic to willingly choose a known donor for the purpose of co-parentingwhen she had no reason to subject her and her children to custody battles and parentingtime. This is exactly what she sought to avoid, and the choice is provided by law in Kansasunder the artificial insemination statute, K.S.A. 38-1114(f). Mr. Covington claims he specifically has standing to bring this action pursuant toK.S.A. 38-1115(a)(l) which provides “[a]child, or any person on behalf of such child maybring an action at any time to determine the existence of a father and child relationshipwhich is presumed under KS.A. 38-1114.” K.S.A. 38-1115(a)(1) (emphasis added.) The Page 35 of 38
  36. 36. problem with this contention is that the statute Petitioner cites, K.S.A. 38-1115, refersgenerally to the presumption of paternity under the statute. However, the specific statute atissue here is subsection (f) of K.S.A. 38-1114, which is a presumption of non-paternity.Once Mr. Covington donated his sperm to be inseminated by a licensed physician, he lostall rights to paternity, and thus, his standing in a paternity action. This is not a case inwhich Mr. Covington had a relationship including sexual intercourse with Ms. Warren andthen later discovered such action had resulted in the birth of a child or children he wantedto parent. He specifically donated his sperm for use in an artificial insemination techniqueby a licensed physician, without securing a written agreement that he was to be anythingother than a sperm donor. He foreclosed any other opportunity at that point. Petitioner misses the point entirely by arguing that Kansas courts have not typicallyresorted to standing doctrines to “cut off the opportunity of a putative father to seekpaternity determination.” The problem with this argument is that due to the very specificcircumstances here involving artificial insemination, for which the Legislature provided apresumption of non-paternity, Mr. Covington had already “cut off’ any such opportunity. It is for the Legislature, not the courts, to choose between conflicting publicpolicies. When reviewing statutes enacted by the Legislature, the judiciary may notevaluate the wisdom of the policies embodied in the legislation; absent a constitutionalprohibition, the choice among competing policy considerations is a legislative function. K.S.A. 13-1114(f) provides that artificial insemination through a licensed physicianimparts no parental rights or obligations on the donor absent a written agreement to the Page 36 of 38
  37. 37. contrary. Here, the Petitioner’s sperm sample was taken to a physician, who performed theimplant at the physician’s office, as had been done previously without success. The statute simply makes no exception for “known” sperm donors, who will bedenied a paternity claim so long as the semen was provided to a licensed physician forinsemination of a woman who is not married to the donor. Conception through artificialinsemination offers single persons the opportunity to raise a child without involvement bythe biological father. Consequently, when an unmarried woman uses artificialinsemination to conceive a child, it is more reasonable to presume that she does not intendto co-parent with the donor. As stated previously, there was no such agreement here thatPetitioner would be treated as the children’s father, and there certainly was no writtenagreement, as expressly required by K.S.A. 38-1114(6)(f). CONCLUSION Petitioner seeks parental rights he waived, as a matter of law, when he donatedsemen samples to Ms. Warren for artificial insemination by a licensed physician withoutany written agreement that preserved his right to co-parent the children born of the artificialinsemination. Thus, he lacks standing to bring this paternity action. Ms. Warren does notdispute the Petitioner’s biological factor in the conception of these children. However, thismatter must be resolved as a matter of law based solely upon the artificial inseminationstatute, K.S.A. 34-1114(f). Ms. Warren sought a known donor for artificial insemination for the purposes ofbecoming a single parent. The donor cannot be allowed to come forward and announcehimself the “father” after the birth of the children. He is merely the sperm donor, Page 37 of 38
  38. 38. consistent with the mutual intentions of the parties. As a mere sperm donor, he lacksparental rights or obligations. The quid pro quo, of course, is that he is not obligated toprovide for the support of the children or their mother, or for their medical expenses. Noris he entitled to custody, visitation, change of name, or any other rights of a parent in theabsence of a written agreement with Respondent. For the foregoing reasons, Sarah R. Warren respectfully asks this Court to dismissDavid R. Covington’s paternity action with prejudice. Respectfully submitted, ________________________________ Susan Anderson, #15897 Attorney for Respondent CERTIFICATE OF SERVICE I, Susan Anderson, do hereby certify that I have served a true and correct copy ofthe above and foregoing document on counsel of record by placing the same in the U.S.mail, postage prepaid, on the 19th day of August, 2006, addressed to: Benjamin Swank 2913 S.W. Wanamaker Road Topeka, Kansas 66614 Attorney for Petitioner Kevin J. Jones 999 S. Fairlawn Road Topeka, KS 66614 Guardian Ad Litem (Cases 06-JC-372 and 06-JC-373) _______________________________ Susan Anderson, #15897 Attorney for Respondent Page 38 of 38

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