Sperm donor case turns to 'best interests of child' issues
Attorney ready to explore same-sex vs. heterosexual parents question
Posted: June 18, 2014
By Steve Fry
THE CAPITAL-JOURNAL
A future hearing in the Craigslist case could be lengthy if the two sides call expert witnesses to testify on whether a child suffers emotionally while growing up in a homosexual family rather than in a heterosexual one, said the attorney representing the man who answered an online ad to provide sperm to a same-sex couple.
Ben Swinnen, an attorney representing William Marotta, a Topeka man, said Wednesday he is prepared to put on an expert witness to testify that no child suffers from growing up in a homosexual family.
"There is no evidence to support that claim, other than prejudice," Swinnen said.
If common sense rather than expert testimony is used, the hearing will be “very short,” Swinnen said.
The case regarding whether Marotta is obligated to make child support payments for a 4-year-old daughter for whom he claims no parental rights is now turning to the “best interest of the child” issue after a Kansas Supreme Court ruling last week.
The high court ordered Shawnee County District Court Judge Mary Mattivi to conduct a hearing to determine whether genetic testing to determine whether Marotta is, in fact, the girl’s biological father is in the best interests of the child.
The Department of Children and Families, which is seeking child support payments from Marotta, requested the genetic testing to affirm his paternity.
Swinnen said he was pleased with the Kansas Supreme Court ruling.
"I am absolutely 100 percent satisfied that this is the right decision," Swinnen said. "It's a good day for everybody.
"It all turns on whether the state continues to take this kid hostage for its political agenda or we can use common sense," Swinnen said. "She is in a family where she is growing up happily. Let's not disturb that."
An email released Wednesday by public information officer Theresa Freed said the DCF is "disappointed in the ruling."
DCF’s statement, citing K.S.A. 23-2208(f), said Kansas law is clear that a “donor of [filtered word] 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."
The DCF thinks that law should have been applied, the statement said.
The Kansas Supreme Court, in a split decision released this past Friday, negated a May 2014 ruling by Mattivi ordering Marotta to undergo genetic testing to determine whether he is, in fact, the father of the child.
The justices quoted 1989 case law in Kansas which says that before a blood test to determine someone is a biological parent, the district court must consider the "best interests of the child," including "physical, mental and emotional needs."
The justices also quoted a 2013 Kansas case which said Kansas Parentage Act provisions indicate that "a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother." In the Marotta case, the woman in the same-sex couple who wasn't the biological mother would fill the "presumptive-parent position," the state’s high court said.
At stake in the case is whether Marotta should pay what Swinnen said tallies $3,000 in child support to the DCF as the biological father of a child for whom he claims no parental rights.
Mattivi ruled in January 2014 that Marotta was legally the father of a child born in 2009 to Jennifer Schreiner, who was artificially inseminated without a doctor’s care by a sperm donation solicited through Craigslist.
Marotta claimed he had signed a contract forfeiting all rights to fatherhood, but the DCF claimed he was still liable for child support, which was a position supported by Mattivi’s ruling.
Mattivi ruled the contract between Marotta, Schreiner and her female partner was moot because the women didn’t follow a 1994 Kansas statute that Mattivi said required a licensed doctor to perform the artificial insemination in cases involving sperm donors.
The state then moved to require genetic testing to determine Marotta’s paternity, and he sued to block it. Mattivi ordered the testing to take place without first conducting a “Ross hearing” which determines whether genetic testing to determine biological parenthood is in the best interests of the child.
In a majority order written by Supreme Court Chief Justice Lawton Nuss, the high court ruled that Kansas law dictates that the best interests of a child must prevail in determining parental rights and obligations.
"Read in gender-neutral language,” Nuss wrote, “Ross held that the shifting of parental roles from a presumed parent to a biological parent could be detrimental to the emotional and physical well-being of any child, thus necessitating a hearing to determine if the shifting is in the best interests of the child.”
The date to conduct the hearing hasn't been scheduled yet.
Justices Dan Biles and Nancy Moritz dissented in the order.