In the Matter of the Paternity of M. V., By and Through Her Natural Mother and Guardian K.V., Appellant,
T.R. and K.R., Appellees.
BY THE COURT
Whether a right to due process has been violated is a
question of law over which an appellate court exercises
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.
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
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.
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.
from Reno District Court; Patricia Macke Dick, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, for appellant.
appellee pro se.
Schroeder, P.J., Malone, J., and Stutzman, S.J.
(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
and Procedural Background
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 ...