324 P.3d 310
Kan. Ct. App.2014Background
- Dana Greer gave birth to Emily in Oct. 2012 while married to Jack Greer; Dana had a relationship with John Farbo during a separation.
- Voluntary genetic testing (filed with the court before the paternity action) showed a 99.99% probability John is Emily’s biological father.
- John filed a paternity petition to be adjudicated Emily’s legal father; the district court held a Ross hearing to decide whether admitting the genetic test was in the child’s best interests.
- At the Ross hearing, testimony showed John had periodic contact and provided some support; Jack had been acting as Emily’s father and was presumed father by the community.
- The district court excluded consideration of the genetic test under a Ross best‑interests analysis and upheld the marital presumption of paternity, dismissing John’s petition.
- The Court of Appeals reversed and remanded, finding the district court erred by not admitting and weighing the competing presumptions (legitimacy vs. genetic) under K.S.A. 2013 Supp. 23‑2208(c).
Issues
| Issue | Plaintiff's Argument (Farbo) | Defendant's Argument (Greer/Jack) | Held |
|---|---|---|---|
| Whether a Ross hearing to decide admissibility of preexisting genetic test was required | Ross hearing not required because genetic test produced a statutory presumption before filing; court must treat it as a presumption | Ross hearing appropriate to protect child’s best interests before upsetting a marital presumption | Court: Ross hearing is not required where genetic testing creating a presumption was completed and filed before the action and no statutory objection was made; the test must be considered as a presumption |
| Whether the district court properly excluded the genetic test from consideration | The test was valid and admissible; exclusion was legal error | Excluding the test served the child’s best interests under Ross factors | Held: Exclusion was legal error — the genetic presumption must be admitted absent a proper statutory objection |
| How to resolve conflicting presumptions of paternity (marital legitimacy vs. genetic presumption) | Statute requires weighing competing presumptions under K.S.A. 23‑2208(c) and selecting the presumption grounded in policy, logic, and the child’s best interests | The marital presumption and stability of existing family support denying genetic claim | Held: Court must weigh both presumptions and decide which is founded on the weightier considerations of policy and logic, including child’s best interests; remanded for that weighing |
| Whether Ross still controls procedure post‑statutory changes | Ross remains relevant when testing is sought by court during litigation | Statute now elevates preexisting genetic tests to presumptions, altering Ross’ scope | Held: Ross still controls when no pre‑existing genetic test exists or a timely statutory objection renders a pre‑existing test inadmissible; otherwise K.S.A. 23‑2208(c) governs |
Key Cases Cited
- In re Marriage of Ross, 245 Kan. 591 (1989) (district court must hold a best‑interests hearing before ordering or considering paternity testing in certain circumstances)
- Reese v. Muret, 283 Kan. 1 (2007) (Ross remains good law but must be read in view of statutory changes)
- In re Adoption of A.A.T., 287 Kan. 590 (2008) (recognizes biological father’s liberty interest and value of prompt, affirmative steps to assert parenthood)
- GDK v. State Dept. of Family Services, 92 P.3d 834 (Wyo. 2004) (statutory phrase “policy and logic” includes broader sociological and psychological ramifications when weighing presumptions)