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IN RE MARRIAGE OF CRIQUI

September 14, 1990.

IN THE MATTER OF THE MARRIAGE OF ROGER CRIQUI, Appellee, and TERESA D. CRIQUI, Appellant.


Respondent Teresa D. Criqui appeals from the order of the trial court denying her motion to restore to her custody of her four minor children.

Teresa and petitioner Roger Criqui were divorced in December 1982. By agreement of the parties, Teresa was to have custody of their two children. The trial court incorporated this agreement into the divorce decree by reference, thereby awarding custody to Teresa. At the time of the divorce, Teresa was pregnant with the couple's third child, who was born in February 1983. In August 1984, Teresa gave birth to a fourth child.

Four months after the divorce was granted, Roger filed a motion for change of custody alleging Teresa's emotional and mental state had deteriorated and this required a change of custody from

[14 Kan. App. 2d 673]

      Teresa to Roger. About ten days later, Roger dismissed his motion, stating the parties had mutually agreed to settle the custody dispute without the intervention of the court.

  On November 6, 1985, Teresa executed a document captioned "Parental Consent" granting full care, custody, and control of her four minor children to Carolyn G. and Brenda S. Criqui, sisters of Roger Criqui, "until the final signed documents arrive from the Court of Shawnee County, Topeka, Kansas." In this document, Teresa stated she did this with full knowledge of the consequences and with the realization it was in the best interests of the children. The document, which had been drafted by her attorney at that time, was acknowledged by a notary public. Apparently, Carolyn Criqui has had actual physical custody of the minor children since that time.

  On December 19, 1985, the trial court entered an "Agreed Order Changing Custody" which had been prepared by Teresa's attorney. The order stated that, due to financial problems, the ability of Teresa to raise the children, and other related problems, it was in the best interests of the children that custody be transferred to Carolyn and Brenda Criqui. The order then awarded custody of the minor children to Carolyn and Brenda. At the bottom of the order is a notarized "Verification" by Teresa in which she states the Agreed Order Changing Custody is true and correct and in the best interests of the minor children. Roger executed a similar "Verification," which is attached to the order.

  On February 13, 1989, Teresa filed a motion to restore to her custody of her minor children. After a hearing, the trial court denied her motion, finding that an abrupt change in the custody of the minor children at that time would be harmful to the children. In reaching its decision, the trial court found the "best interests of the child" test was to be applied as an exception to the "parental preference" doctrine.

  Teresa contends the trial court erred in applying the best interests of the child test, in not applying the parental preference doctrine, and, therefore, in denying her motion to restore custody. She claims Sheppard v. Sheppard, 230 Kan. 146,

[14 Kan. App. 2d 674]

      630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), is controlling and was misapplied by the trial court.

  In Sheppard, 230 Kan. at 148, the Supreme Court noted the parental preference doctrine was succinctly stated in Christlieb v. Christlieb, 179 Kan. 408, 409, 295 P.2d 658 (1956), as follows:
"`[A] parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.'" (Emphasis added.)
  This doctrine entitles a fit parent, who is willing and able to care for his or her child, to custody of the child as against others who have no permanent or legal right to custody. The parental preference doctrine does not apply to the instant case. Here, Carolyn Criqui was granted legal custody after the parents executed the Agreed Order Changing Custody and the trial court entered the order granting custody to Carolyn. Thus, Carolyn has had legal custody of the four minor children for the past four and one-half years. This fact makes the parental preference doctrine inapplicable.

  The controlling issue in Sheppard was the questioned constitutionality of a statute which would have allowed a court to disregard the parental preference doctrine and award custody of a child to a nonparent, upon motion and under the circumstances described in the statute, notwithstanding the fact that a parent currently had legal custody of the child. The Sheppard decision is a narrow decision and does not control the instant case. Here, the mother did not have legal custody of the children. Nor was Carolyn, who already had legal and physical custody of the children, seeking to divest Teresa, the natural mother, of legal custody. On the contrary, Teresa sought to take away legal custody from Carolyn. Sheppard may not be read as broadly as Teresa suggests. To do so would require us to misapply the holding in Sheppard, 230 Kan. at 154:

  "What we hold here is simply this: that a parent who is not found to be unfit, has a fundamental right, protected ...


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