Tuesday, February 21, 2006

Case Law Development: Kansas Court of Appeals Affirms Grandparent and Stepparent Visitation Where Parent's Refusal in Unreasonable

The Kansas Court of Appeals decided two cases interpreting its Stepparent and Grandparent Visitation statute, granting visitation over the objection of the parents in both cases.

In the first case, involving a stepparent visitation, the court found that the statute's grant of unlimited discretion in granting visitation violates the due process requirements set forth in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). However, the court found that it could engraft on the statute the limitations set forth in other visitation statutes in order to satisfy constitutional standards.  Accordingly the court held that a trial court may order stepparent visitation "upon a finding that (1) the visitation is in the child's best interest, and (2) there exists a substantial relationship between the child and the stepparent."  The court noted that
"the trial court must give material weight and deference to the position of a fit parent and ... not substitute its judgment for the parent's, absent a finding of unreasonableness." The mother, who had divorced stepfather, had proposed that stepfather not have visitation with her 7-year-old unless the child wanted that visitation.  The trial court had denied visitation but the court of appeals reversed, finding mother's proposal unreasonable and concluded that it "abdicates all parental guidance over the child and is tantamount to no visitation plan at all."

In re Marriage of Riggs, 2006 Kan. App. LEXIS 130 (February 17, 2006)
Opinion on the web (last visited February 20, 2006 bgf)

In a second case decided the same day, the court rejected an argument that the courts should give absolute deference to the decision of two fit parents in an intact family to cut off grandparent vistitation.  Instead the court of appeals noted that the Kansas grandparent visitation statute requires only a showing that the grandparents have a substantial relationship with the grandchildren and the court must presume that parents are acting in their children's best interest and give their decisions "special weight."  Under that standard, the court affirmed a trial court's decision to grant grandparent visitation to children whom the grandparents had last seen when the children were 3 and 1 year old.  The parents had cut off contact with grandparents after Grandparents had insisted that parents pursue investigation and counseling of an incident of alleged sexual abuse of the 3 year old by a cousin.  The trial court found that decision to be "unreasonable, arbitrary and punitive." The court concluded that there was a substantial relationship between the grandparents and the 3 year old and, to the extent there was only a "developing relationship" with the one-year-old child, the court concluded that the need to treat siblings similarly justified granting the motion for visitation with the younger child as well.

Davis v. Heath, 2006 Kan. App. LEXIS 124 (February 17, 2006)
Opinion available on line (last visited February 21, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/02/case_law_develo_26.html

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