Attorney to sperm donor: Don't submit to genetic testing
Swinnen seeks 14-day stay to prepare appeals to Supreme Court
Posted: March 14, 2014
By Tim Hrenchir
THE CAPITAL-JOURNAL
Don’t voluntarily submit to genetic testing.
Benoit Swinnen, the attorney representing sperm donor William Marotta in the Craigslist case, said Friday he’d given Marotta those instructions as Swinnen prepares to appeal to the Kansas Supreme Court an order Shawnee County District Judge Mary Mattivi issued Thursday.
Mattivi’s order requires genetic testing and denies Swinnen’s request that a “Ross hearing” be held to determine if genetic testing is in the best interests of a 4-year-old girl who’s involved.
Swinnen filed a motion Friday asking Mattivi to stay all proceedings in the case for 14 days to give him time to prepare and submit an appeal of her order to the Supreme Court and for him to also ask the high court to stay all District Court proceedings in the case.
Swinnen said he needed the 14-day stay so Mattivi wouldn’t find Swinnen in contempt of court for instructing Marotta not to submit to genetic testing. Swinnen said a stay would be granted automatically if the Supreme Court grants either motion he plans to submit.
Mattivi responded Friday by giving Timothy Keck, the lead attorney representing the Kansas Department for Children and Families in the case, one week to respond to Swinnen’s motion.
Marotta wasn’t present at Friday’s status conference in the case, for which Mattivi issued a summary judgment Jan. 22 in favor of the Kansas Department for Children and Families. The ruling concluded Marotta is the father of a 4-year-old girl born after he donated sperm to a Topeka same-sex couple.
The DCF filed court documents in October 2012 seeking to have Marotta declared the father so he can be forced to pay child support regarding a girl Jennifer Schreiner bore in 2009.
Marotta said he didn’t intend to be the child’s father and signed a contract waiving his parental rights and responsibilities while agreeing to donate sperm in a plastic cup to Schreiner and Angela Bauer, who was then her lesbian partner.
Marotta contacted the women after they placed an ad seeking a sperm donor on Craigslist. Mattivi concluded their contract was moot because those involved didn’t follow a Kansas statute enacted in 1994, which Mattivi ruled requires a licensed physician to perform the artificial insemination in cases involving sperm donors.
Mattivi ruled Thursday that Kansas statute required her at that point to grant the state’s motion for genetic testing, and that holding a Ross hearing wasn’t necessary because the rules regarding such hearings weren’t applicable to the circumstances of the case involved. Mattivi hasn’t set a deadline for Marotta to submit to genetic testing.
Swinnen said Friday he would appeal that ruling under the “collateral order doctrine,” which is an exception to the general rule that only final court judgments can be appealed.
Swinnen’s motion contends the case meets the three requirements for being collaterally appealable: That the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action and be effectively unreviewable on appeal from a final judgment.
Swinnen said Thursday’s order would be effectively unreviewable on appeal from a final judgment. He said if Marotta submitted to genetic testing, the order to require that testing couldn’t later be effectively reversed because the “cat would be out of the bag.”
Swinnen’s motion said legal grounds for invoking the writ of mandamus he’s seeking to stay District Court proceedings in the case include: “(1) a denial of a right or privilege that exists as a matter of law where there is no remedy on appeal or (2) an issue is of great importance.”
Swinnen said he also would seek under the collateral order doctrine a review of an order Mattivi issued in January calling for the court to pay $3,146 instead of the $5,992 amount listed in a bill submitted by Jill Dykes, who was appointed last year as guardian ad litem to represent the 4-year-old girl’s best interests in the case.
Dykes acknowledged at Friday’s hearing that she planned to file a motion seeking to withdraw from that responsibility.
Swinnen’s motion indicated he was not provided a copy of the order regarding Dykes’ compensation.
It added that the court’s denial of fees to Dykes would deprive the child of the benefit of representation by one of the most qualified and competent family law attorneys in this county while stifling the child’s future ability to be competently represented in the case by Dykes or any attorney who succeeds her.