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A child or a person on behalf of the child may file an action at any time to establish paternity when there is a presumption of paternity. Kan. Stat. Ann. § 38-1115(a)(1). However, a presumption based on genetic test results must relate to genetic testing that occurs prior to the filing of the paternity action. Kan. Stat. Ann. § 38-1114(a)(5). The child, the child's mother, and the presumptive father are parties to the paternity action. Kan. Stat. Ann. § 38-1117(a).
This is a paternity action in the context of a probate case. Heather S. Reese (formerly Waldschmidt) ("Heather") seeks a determination that she is the child of Wade Samuel Waldschmidt, Jr. ("Sam"). Sam's spouse, Sandra Waldschmidt ("Sandra") opposed Heather's claim as a child in Samuel's intestate estate and filed a motion for genetic testing. Heather filed a paternity action pursuant to the Kansas Parentage Act, claiming that Sam was her presumptive father. Sandra intervened in the paternity action and moved for genetic testing. The district court denied Sandra's motions in both the probate and paternity actions, and she brings this appeal, claiming that In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), does not apply to genetic testing in paternity cases brought by adults for the purpose of determining inheritance.
Did the district court properly deny Sandra’s motions for genetic testing in a probate action filed by Heather and in an action filed by Heather under the Kansas Parentage Act for a determination that the decedent was Heather’s father?
The court found that because Heather eliminated the issue of biological parentage in the probate action by filing her paternity action and Kan. Stat. Ann. § 59-501(a) did not authorize genetic testing to challenge a paternity determination under the Act, there was no statutory basis for Sandra’s motion for genetic testing in the probate case. Sandra was attempting to vitiate a legal parent and child relationship that had not been questioned while the decedent was alive. Under the Act, Kan. Stat. Ann. § 38-1118(a), the trial court was required conduct a hearing prior to issuing an order for genetic testing to determine whether genetic testing was in the best interest of Heather regardless of her age.