Printable Format23-2208. Presumption of paternity. (a) A man is presumed to be the father of a child if:
(1) The man and the child's mother are, or have been, married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce.
(2) Before the child's birth, the man and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
(A) If the attempted marriage is voidable, the child is born during the attempted marriage or within 300 days after its termination by death or by the filing of a journal entry of a decree of annulment or divorce; or
(B) if the attempted marriage is void, the child is born within 300 days after the termination of cohabitation.
(3) After the child's birth, the man and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
(A) The man has acknowledged paternity of the child in writing;
(B) with the man's consent, the man is named as the child's father on the child's birth certificate; or
(C) the man is obligated to support the child under a written voluntary promise or by a court order.
(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 2022 Supp. 23-2223 or K.S.A. 65-2409a, and amendments thereto.
(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.
(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). If 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.
(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.
(d) Full faith and credit shall be given to a determination of paternity made by any other state or jurisdiction, whether the determination is established by judicial or administrative process or by voluntary acknowledgment. As used in this section, "full faith and credit" means that the determination of paternity shall have the same conclusive effect and obligatory force in this state as it has in the state or jurisdiction where made.
(e) If a presumption arises under this section, the presumption shall be sufficient basis for entry of an order requiring the man to support the child without further paternity proceedings.
(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.
History: L. 1985, ch. 114, § 5; L. 1994, ch. 292, § 5; July 1.
Source or Prior Law:
38-1114.
Law Review and Bar Journal References:
“Settlements & Verdicts,” Robin Maxon, XIV J.K.T.L.A. No. 5, 27 (1991).
“Challenging the Presumption of Paternity,” Sheila Reynolds, 65 J.K.B.A. No. 10, 36 (1996).
“Dissolution of Non-Marital Relationships,” Charles F. Harris, J.K.T.L.A. Vol. XXII, No. 2, 18 (1998).
“A Primer on Posthumous Conception and Related Issues of Assisted Reproduction,” Michelle L. Brenwald and Kay Redeker, 38 W.L.J. 599 (1999).
“For Love or Money: The Kansas Supreme Court’s Problematic Acceptance of the ‘Best Interests of the Child’ Standard in an Intestate Claim [Reese v. Muret, 150 P.3d 309 (Kan. 2007)],” Angela Chesney Herrington, 47 W.L.J. 177 (2007).
“Child Psychologist Learns the Law of Child Advocacy,” Bud Dole, 76 J.K.B.A. No. 9, 22 (2007).
“Can I Get That in Writing?: Established and Emerging Protections of Paternity Rights [In re K.M.H., 169 P.3d 1025 (Kan. 2007)],” Jason Oller, 48 W.L.J. 209 (2008).
“Kansas Judicial Council Report: Council Meetings and Assigned Studies in 2009,” Randy M. Hearrell, 78 J.K.B.A. No. 7, 9 (2009).
“Where the Sidewalk Ends: An Update to the Kansas Assisted Reproductive Technology Statute to Give All Children Legal Rights to Their Parents,” Taylor R. Kramer, 54 W.L.J. 329 (2015).
CASE ANNOTATIONS
1. Cited; trial court correct in refusing blood test order (K.S.A. 38-1117, 38-1118) in motion on modifying divorce decree (K.S.A. 60-260). In re Marriage of Zodrow, 240 K. 65, 69, 70, 727 P.2d 435 (1986).
2. Evidence concerning best interests of child as unnecessary in determination of parentage proceeding examined. In re Marriage of O’Brien, 13 K.A.2d 402, 405, 772 P.2d 278 (1989).
3. Purpose of Kansas parentage act stated and applied. In re Marriage of Ross, 245 K. 591, 594, 783 P.2d 331 (1989).
4. Cited in dissent; workers compensation judge may determine parentage for purposes of workers compensation benefits only. R.L.J. v. Western Sprinkler, Inc., 17 K.A.2d 749, 754, 844 P.2d 37 (1992).
5. Court had subject matter jurisdiction over paternity action for support order when presumed father not given notice. Florida Dept. of HRS v. Breeden, 21 K.A.2d 490, 499, 901 P.2d 1357 (1995).
6. Genetic test results to establish presumption of paternity must be known before action is commenced under KPA (K.S.A. 38-1110 et seq.) to avoid K.S.A. 38-1115 (a)(2) time limitation. In re Estate of Foley, 22 K.A.2d 959, 960, 925 P.2d 449 (1996).
7. “Parent” broadly construed in K.S.A. 38-1501 et seq. to avoid undue limitation on state’s power in parental rights termination case. In re A.N.P., 23 K.A.2d 686, 688, 934 P.2d 995 (1997).
8. Court may order genetic testing where no evidence of presumed father without hearing to determine if in best interest of child. State ex rel. Secretary of SRS v. Miller, 24 K.A.2d 822, 826, 953 P.2d 245 (1998).
9. Husband is presumed father of child born during marriage. In re Marriage of Phillips, 274 K. 1049, 58 P.3d 680 (2002).
10. Adult child entitled to Ross hearing prior to genetic testing in the context of a probate case; when in best interest of adult or minor child, presumptive paternity protected over biological paternity. Reese v. Muret, 283 K. 1, 6, 9, 150 P.3d 309 (2007).
11. Sperm donor with no written agreement as to parental rights; K.S.A. 38-1114 held constitutional. In re K.M.H., 285 K. 53, 169 P.3d 1025 (2007).
12. Cited; father failed to appear at adoption hearing because of mother’s fraud; adoption not void under case facts. In re Adoption of A.A.T., 287 K. 590, 620, 621, 196 P.3d 1180 (2008).
13. Adoptive father not legally presumed to be biological father of adopted child. In re Adoption of A.A.T., 42 K.A.2d 1, 210 P.3d 640 (2009).
14. No evidence to rebut the presumption of paternity found; retroactive awards of support upheld. In re Paternity of Janzen, 43 K.A.2d 613, 228 P.3d 425 (2010).
15. Case is remanded for a determination which presumption is founded on the weightier considerations of policy and logic including the best interests of the child. Greer v. Greer, 50 K.A.2d 180, 324 P.3d 310 (2014).
16. A woman seeking to establish parenthood who relies on the presumption of maternity under subsection (a)(4) need not show the existence of a written or oral coparenting agreement between her and the birth mother but that she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child’s birth. In re M.F., 312 K. 322, 323, 475 P.3d 642 (2020).
17. The same-sex partner of a woman who conceives a child through artificial insemination may establish a legal fiction of biological parentage by asserting the presumption of maternity in subsection (a)(4) by notoriously recognizing her maternity. In re W.L., 312 K. 367, 475 P.3d 338 (2020).