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In re Paternity of M. V.

Court of Appeals of Kansas

June 1, 2018

In the Matter of the Paternity of M. V., By and Through Her Natural Mother and Guardian K.V., Appellant,
v.
T.R. and K.R., Appellees.

         SYLLABUS BY THE COURT

         1. Whether a right to due process has been violated is a question of law over which an appellate court exercises unlimited review.

         2. The Fourteenth Amendment to the United States Constitution provides that no state shall deprive any person of life, liberty, or property, without due process of law. The United States Supreme Court has stated that perhaps the oldest of the fundamental liberty interests is a fit parent's right to the care, custody, and control of his or her children.

         3. Under K.S.A. 2017 Supp. 23-3301(b), the district court may grant grandparent visitation rights upon finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established. The district court must make both findings before grandparent visitation may be granted. The burden is on the grandparent to prove these elements.

         4. When considering a parent's constitutional due process rights, the best interest of the child standard alone is an insufficient basis to award grandparent visitation. A court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. A court cannot reject a fit parent's visitation plan without finding it is unreasonable. But a parent's determination is not always absolute because otherwise the parent could arbitrarily deny grandparent visitation without the grandparent having any recourse.

         5. K.S.A. 2017 Supp. 23-3304 provides that in an action for grandparent visitation, costs and reasonable attorney fees shall be awarded to the respondent unless the court determines that justice and equity otherwise require.

          Appeal from Reno District Court; Patricia Macke Dick, judge.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

          K.R., appellee pro se.

          Before Schroeder, P.J., Malone, J., and Stutzman, S.J.

          Malone, J.

         K.V. (Mother) appeals the district court's decision in this paternity action granting grandparent visitation time to K.R. (Grandmother). Mother claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. Mother also claims the district court erred in not assessing attorney fees against Grandmother as required by statute. We agree with Mother that the district court violated her due process rights by ordering grandparent visitation time on a schedule different from what Mother had offered without finding that Mother's visitation plan was unreasonable. Thus, we reverse the district court's grandparent visitation order and remand for further proceedings consistent with this opinion.

         Factual and Procedural Background

         On December 2, 2009, K.V. filed a petition in district court for an order finding T.R. (Father) to be the father of M.V., born in 2009, and for orders establishing joint custody and child support for M.V. Father acknowledged paternity and the parties initially agreed to orders establishing joint custody, parenting time, and child support. But over the years, many disputes arose between Mother and Father ...


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