top of page

Sperm donor case motion contends Judge Mattivi acted in contempt of Kansas Supreme Court

Case focuses on whether man is legally a sperm donor or a father

Posted: June 11, 2015 

 

By Tim Hrenchir

THE CAPITAL-JOURNAL

 

A motion filed Wednesday with the Kansas Supreme Court says Shawnee County District Judge Mary Mattivi acted in contempt of that court in the case involving William Marotta’s donation of sperm in a plastic cup to a Topeka same-sex couple.

 

Attorney Charles Baylor, representing Marotta, filed the motion contending Mattivi disobeyed instructions the high court gave in June 2014 requiring a “Ross hearing” to be conducted to determine whether genetic testing to determine biological parenthood was in the best interest of the daughter born to Jennifer Schreiner in 2009.

 

Baylor asked the Supreme Court to issue a citation forcing Mattivi to show cause as to why she shouldn’t be found in contempt; to reverse an order Mattivi issued in the case requiring Marotta to undergo genetic testing; and to reassign the case to a different judge.

 

Baylor’s motion contends that the high court, when it issued a June 2014 writ of mandamus ordering the Ross hearing, found that Angela Bauer — Schreiner’s same-sex partner at the time of the child’s birth and conception — “fills the presumptive-parent position” laid out in the 1989 court ruling that forms the basis for the Ross hearing process.

 

Mattivi presided over the Ross hearing and issued an order April 24 requiring Marotta to undergo genetic testing to determine whether he is the child’s biological father. She subsequently denied a motion asking her to reconsider.

 

Baylor’s motion says that although the Kansas Supreme Court found explicitly that Bauer was a presumed parent of the child, Mattivi gives no indication anywhere in her order that she ever considered Bauer to be a presumed parent.

 

He wrote: “This lack of identification is especially glaring in the first paragraph of the Order, where parties are customarily identified. The Respondent judge simply notes (Bauer’s) presence, along with that of her attorney. The reader is left wondering who (Bauer) is and what she is doing in the Respondent’s court.”

 

Baylor’s motion contends Mattivi acted in contempt of the high court’s writ of mandamus by failing to follow its directions by never indicating she considered Bauer to be a presumed parent of the child and by again ordering genetic testing.

 

Baylor’s motion adds that the state Supreme Court’s writ of mandamus said the district court must consider the child’s best interests, including physical, mental and emotional needs.

 

He wrote that those needs aren’t mentioned in Mattivi’s order, “and there are simply no findings in the Order which would support that Judge’s conclusion that making (Marotta) the parent instead of (Bauer) would better serve the child’s physical, mental, and emotional needs.”

 

The Kansas Department for Families and Children since October 2012 has been pursuing the case, in which it is seeking to have Marotta declared the father so he can be forced to pay child support.

 

Marotta said he didn’t intend to be the child’s father while agreeing to donate sperm to Schreiner and Bauer. Marotta contacted the women after they placed an ad seeking a sperm donor on Craigslist.

 

Mattivi ruled in January 2014 that Schreiner and Bauer didn’t follow a Kansas statute enacted in 1994, which Mattivi said requires a licensed physician to perform the artificial insemination in cases involving sperm donors.

 

Baylor said Wednesday that to his knowledge, there has never been another case in which a sperm donor has been found to be a child’s legal father despite the donor and the mother never wavering in their intent that the donor not be the father. He said the critical difference between the Marotta case and a 1986 California court decision Mattivi cited in her January 2014 ruling was that in the California case, the sperm donor wanted to be the father and even set up a trust account for the child.

 

Mattivi’s ruling cited the 1986 California case of Jhordan C. v. Mary K., which was affirmed by the California Court of Appeals, saying it dealt with a similar issue involving a child conceived by artificial insemination using [filtered word] the plaintiff donated, which the mother used to conceive without physician involvement.

 

When the man sought to be involved in the child’s upbringing over the objections of the mother and another woman who was raising the child together, the trial court applied the relevant California statute — which was “very similar” to the Kansas law involved in Marotta’s case — and concluded the man was the father of the child and not a sperm donor because a licensed physician hadn’t been involved with the insemination, Mattivi wrote.

bottom of page