                                          No. 118,189

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                  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.



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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. Opinion filed June 1, 2018.
Reversed and remanded with directions.


       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

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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 over parenting time and
child support, and the parties often were back in court to resolve their differences.


       On January 27, 2017, paternal Grandmother filed a motion in the paternity action
requesting an order for grandparent visitation time. To support her motion, Grandmother
alleged that she had established a relationship with M.V. and that it was in M.V.'s best
interests to continue that relationship. Grandmother proposed that she have visitation with
M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on
Sunday, as well as other times. Mother filed a response to the motion and asserted that
the Kansas Parentage Act does not allow for grandparent visitation in a paternity case.
Mother also requested that Grandmother reimburse her for attorney fees.


       On March 15, 2017, the district court held a hearing on Grandmother's motion,
although a transcript of the hearing is unavailable due to technical errors. According to
the journal entry, the district court found that a substantial relationship existed between
Grandmother and M.V. and that visitation rights would be in M.V.'s best interests. The
district court also cited In re T.N.Y., 51 Kan. App. 2d 956, 360 P.3d 433 (2015), for the
proposition that grandparents may assert visitation rights in a paternity action, and not
just in divorce cases. The district court granted Grandmother's request for visitation with

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M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on
Sunday. The district court also ordered that exchanges for the visits should take place at
the same location in Haven, Kansas, used by the parents for Father's parenting time.
Finally, the district court denied Mother's request for reimbursement of attorney fees.


       On March 31, 2017, Mother filed a motion for reconsideration with the district
court. Mother also filed a proposed visitation plan allowing Grandmother to have
visitation with M.V. on the second Saturday of each month from noon until 5 p.m., rather
than the entire weekend under the original order. Mother's proposed visitation plan also
specified that Grandmother would pick up M.V. for visitation at Mother's house, rather
than at the location in Haven, Kansas. The motion also requested the district court to
award reasonable attorney fees to Mother under K.S.A. 2017 Supp. 23-3304.


       The district court held a hearing on Mother's motion for reconsideration on May
19, 2017. At the hearing, Mother acknowledged that Grandmother should have visitation
with M.V. In fact, Mother personally addressed the court and stated: "I'm okay with
[M.V.] seeing her grandparents. She needs to see her grandparents, all of them." But
Mother requested the district court to modify the visitation schedule to exclude overnight
visits. To support her request, Mother raised two primary concerns: (1) Grandmother had
an unknown man living at her residence, and (2) Grandmother sometimes took M.V. to
the jail to see Father who was facing child sex abuse charges, and these visits violated a
court order and were against Mother's wishes. Mother asked the district court to adopt her
proposed visitation plan as being reasonable.


       Grandmother addressed the court and explained that her ex-boyfriend had suffered
a stroke and stayed with her for a while, but he was no longer living at her residence.
Grandmother acknowledged that she took M.V. to see Father in jail sometimes because
she thought it might relieve some of M.V.'s anxieties. Finally, Grandmother complained
to the court that Mother was not allowing M.V. to talk with her on the phone.

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       On May 19, 2017, the same day as the hearing, the district court filed a
memorandum opinion and journal entry denying Mother's request to modify the visitation
order. The district court reaffirmed the original grandparent visitation schedule for
overnight visitation one weekend each month and also granted Grandmother an
additional 15-minute phone call with M.V. each week. The district court found that the
original grandparent visitation schedule was reasonable because Father was not currently
able to exercise visitation with M.V. while he was incarcerated. The district court noted
that Grandmother's ex-boyfriend was no longer living at her residence, but the court did
not address Mother's concern about Grandmother taking M.V. to see Father in jail. The
district court did not mention Mother's proposed visitation plan in making its ruling, and
the court made no finding that Mother's visitation plan was unreasonable. Finally, the
district court denied Mother's request for attorney fees, finding that Grandmother is not
better off financially than Mother and it was Mother who had brought the case back to
court for a hearing. Mother timely appealed the district court's decision.


       On appeal, 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. She also claims the district court erred in not assessing attorney
fees against Grandmother because the statute requires the court to assess such costs
against the grandparent absent specific findings. We will address each claim in turn.


                             GRANDPARENT VISITATION ORDER

       Mother first 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. Specifically, Mother asserts that the district court violated her due
process right under the Fourteenth Amendment to the United States Constitution to raise
her child as she sees fit. She asserts that the constitutional right of a parent to raise his or
her child is a fundamental right to which the court must give great deference. Mother also

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contends there is no indication that the district court presumed she was a fit parent who
was acting in her child's best interests. She asks that her case be remanded for the district
court to consider her proposed visitation plan and to give special weight to her wishes.


       Conversely, Grandmother argues that the district court correctly found that the
original visitation order was reasonable given that Father cannot exercise parenting time
because of his incarceration. Grandmother also contends that there is no indication that
Mother ever presented a proposed visitation plan to the court. Accordingly, Grandmother
asks this court to uphold the district court's decision.


       Whether a right to due process has been violated is a question of law over which
an appellate court exercises unlimited review. In re K.E., 294 Kan. 17, 22, 272 P.3d 28
(2012). Generally, a constitutional issue may not be raised for the first time on appeal
unless: (1) the claim asserted involves only questions of law and is determinative of the
case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent
a denial of fundamental rights; or (3) the district court is right but for the wrong reason.
State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Under Kansas Supreme Court
Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34), the appellant must invoke one of these
exceptions and explain why an issue not raised in district court should be addressed on
appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).


       Mother asserted her constitutional due process claim at the hearing on May 19,
2017, but she only argued the constitutional considerations in passing. In any event, to
the extent that Mother is asserting her constitutional claim for the first time on appeal, she
invokes exceptions (1) and (2) in her brief. We agree with Mother that this issue involves
only a question of law which is determinative of the case and consideration of the claim
is necessary to serve the ends of justice or to prevent a denial of fundamental rights.
Thus, Mother's constitutional claim is properly before this court.


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       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. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).


       At common law, grandparents had no legal right to override a parent's wish to
deny contact with a child. In re Hood, 252 Kan. 689, 691-94, 847 P.2d 1300 (1993);
Elrod, Child Custody Practice & Procedure § 7:6 (2018). In the last 50 years, most states
have enacted statutory visitation rights for grandparents when a court finds it is in the
child's best interests. 2 Elrod, Kansas Law and Practice, Kansas Family Law § 13:10
(2017-2018 ed.). The Kansas grandparent visitation statute has been amended several
times since it was first enacted in 1971. See L. 1971, ch. 149, § 1. The statute is now
found at K.S.A. 2017 Supp. 23-3301, and states:


               "(a) In an action under article 27 of chapter 23 of the Kansas Statutes Annotated,
       and amendments thereto, grandparents and stepparents may be granted visitation rights.
               "(b) The district court may grant the grandparents of an unmarried minor child
       reasonable visitation rights to the child during the child's minority upon a 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.
               "(c) The district court may grant the parents of a deceased person visitation
       rights, or may enforce visitation rights previously granted, pursuant to this section, even
       if the surviving parent has remarried and the surviving parent's spouse has adopted the
       child. Visitation rights may be granted pursuant to this subsection without regard to
       whether the adoption of the child occurred before or after the effective date of this act."


       K.S.A. 2017 Supp. 23-3301(a) only provides for grandparent visitation "[i]n an
action under article 27 of chapter 23 of the Kansas Statutes Annotated," which includes
divorce proceedings. The statute does not expressly allow a grandparent to assert


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visitation rights in a paternity action. But in In re T.N.Y., this court held that limiting
grandparent visitation only to divorce proceedings violates the equal protection rights of
children whose parents never married. 51 Kan. App. 2d at 969-70. This court struck the
offending language from the current grandparent visitation statute, resulting in a
determination that a grandparent can assert visitation rights in a paternity action. 51 Kan.
App. 2d at 969-70. In the appeal before us, Mother does not challenge Grandmother's
statutory right to seek visitation under K.S.A. 2017 Supp. 23-3301.


       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. In re
Cathey, 38 Kan. App. 2d 368, 373, 165 P.3d 310 (2007). Here, the district court expressly
found that a substantial relationship existed between Grandmother and M.V. and that
visitation rights would be in M.V.'s best interests. Mother does not challenge these
findings on appeal. Thus, Grandmother satisfied her burden to establish visitation rights
with M.V. under the Kansas statute.


       That said, in Troxel, the United States Supreme Court reaffirmed the fundamental
right of parents to raise their children free of state interference. In doing so, the Supreme
Court acknowledged that although the nationwide enactment of grandparent visitation
statutes was likely caused by changing family demographics, it emphasized that parents
still retained their fundamental right to make decisions regarding the care, custody, and
control of their children. 530 U.S. at 64-65. In finding Washington's grandparent
visitation statute unconstitutional, the Supreme Court found that it is improper to
disregard decisions made by a fit parent about visitation based solely on a determination
of the child's best interests. 530 U.S. at 67. Accordingly, the Supreme Court held that
when a "fit parent's decision [regarding grandparent visitation] becomes subject to

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judicial review, the court must accord at least some special weight to the parent's own
determination." (Emphasis added.) 530 U.S. at 70.


       The holding in Troxel has been adopted and applied in Kansas. In Kansas Dept. of
SRS v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001), the father died in a car accident shortly
after his child was born, and the paternal grandparents petitioned for visitation. The
district court granted visitation, finding that it was in the child's best interests and that a
substantial relationship had been established between the child and the grandparents. 270
Kan. at 647-48. While the case was pending on appeal, the United States Supreme Court
released its decision in Troxel, and our Supreme Court permitted the mother to raise a due
process argument like the one raised in Troxel. Although our Supreme Court upheld the
then-existing grandparent visitation statute on its face, noting that the statute was not
nearly as broad as the statute addressed in Troxel, it found that applying the statute to the
facts of the case violated the mother's due process rights. 270 Kan. at 657-60. More
specifically, it found that "[t]he trial court made no presumption, as required by Troxel,
that a fit parent will act in the best interests of his or her child." 270 Kan. at 658.


       In In re T.A., 30 Kan. App. 2d 30, 38 P.3d 140 (2001), the mother appealed the
district court's decision ordering grandparent visitation on a schedule different from the
schedule the mother had offered. The district court found that the mother was a fit parent,
that substantial bonding had occurred between the grandparents and the child, and that it
was in the best interests of the child to continue some contact with the grandparents. 30
Kan. App. 2d at 31. In reversing the district court's order, this court held that the district
court "should presume that a fit parent is acting in the best interests of the child and not
substitute its judgment for the parent's, absent a finding of unreasonableness." 30 Kan.
App. 2d at 35. But this court also observed that "a parent's determination is not always
absolute; otherwise the parent could arbitrarily deny grandparent visitation without the
grandparents having any recourse." 30 Kan. App. 2d at 34.


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       Similarly, in In re Creach, 37 Kan. App. 2d 613, 621, 155 P.3d 719 (2007), the
district court did not make sufficient findings for this court to determine why the parents'
proposed plan was not adopted or "why the grandmother's proposed visitation plan was
not revised to address the parents' concerns." 37 Kan. App. 2d at 621. Because it was
unclear whether the district court applied the Troxel presumption, this court found it was
impossible to determine whether the district court interfered with the parents' due process
right to parent their children. 37 Kan. App. 2d at 621. As a result, this court remanded the
case to the district court to make sufficient findings and "to apply the Troxel presumption
that fit parents act in the best interests of their children and that their opinions on
grandparent visitation should be given special weight." 37 Kan. App. 2d at 621.


       To sum up these decisions, 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.


       Returning to our facts, the district court found that a substantial relationship
existed between Grandmother and M.V. and that grandparent visitation was in M.V.'s
best interests, as required by statute. However, the record is unclear on whether the
district court adhered to the Troxel presumption. The district court did not expressly find
that Mother was a fit parent, but there was no evidence to suggest otherwise. Thus, the
district court needed to presume that Mother was acting in M.V.'s best interests, and it
needed to give special weight to her proposed visitation schedule. The court should not
have rejected Mother's visitation schedule without finding that it was unreasonable.




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       Mother filed her proposed grandparent visitation plan with the district court before
the hearing on May 19, 2017, and her counsel referred to the visitation plan during his
arguments to the court. Thus, the record on appeal contradicts Grandmother's assertion
that Mother failed to present a proposed visitation plan to the district court. The district
court did not mention Mother's proposed visitation plan in making its ruling for
grandparent visitation. While the district court ruled that the original grandparent
visitation schedule should stay in place because it was a reasonable arrangement, it did
not explain why it thought Mother's proposed plan was unreasonable. In making its
ruling, the district court did not address Mother's concern that Grandmother took M.V. to
the jail in violation of a court order to see Father who was facing child sex abuse charges,
although it was completely reasonable for Mother to be upset by this action.


       The district court needed to presume that Mother was acting in M.V.'s best
interests, and it needed to give special weight to Mother's proposed visitation schedule.
When the record does not reflect that the district court even considered Mother's
proposed visitation plan and never found it to be unreasonable, we must reverse the
district court's grandparent visitation order and remand for the district court to conduct
the proper analysis under Troxel and related Kansas cases. On remand, the district court
must make appropriate findings to justify its grandparent visitation order and cannot
reject Mother's proposed visitation plan without finding it is unreasonable.


                                      ATTORNEY FEES

       Next, Mother claims the district court erred in not assessing attorney fees against
Grandmother as required by statute. Mother argues that the district court should have
awarded her costs and reasonable attorney fees under K.S.A. 2017 Supp. 23-3304 and
that the court provided no explanation for denying them. Grandmother asserts that the
district court found that justice and equity required that no fees should be assessed against
her. Grandmother points out that in denying Mother's request for attorney fees, the

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district court found that Grandmother is not better off financially than Mother and it was
Mother who had brought the case back to court for a hearing.


       Generally, an award of attorney fees rests within the sound discretion of the
district court, and its determination will be not disturbed on appeal absent an abuse of
discretion. DeGraeve v. Holm, 30 Kan. App. 2d 865, 869, 50 P.3d 509 (2002). To the
extent that resolution of this issues involves statutory interpretation, we have unlimited
review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).


       K.S.A. 2017 Supp. 23-3304 provides that in an action for grandparent visitation,
"[c]osts and reasonable attorney fees shall be awarded to the respondent . . . unless the
court determines that justice and equity otherwise require." When dealing with attorney
fees in grandparent visitation cases, "[t]he legislature clearly intended that the petitioner
(grandparents) pay the costs and the attorney fees unless the trial court specifically finds
that justice and equity require otherwise." In re Cathey, 38 Kan. App. 2d at 377.


       Here, the district court denied Mother's request for attorney fees, finding that
Grandmother is not better off financially than Mother and it was Mother who had brought
the case back to court for a hearing. The district court did not expressly find that "justice
and equity" required the denial of Mother's request for attorney fees, but perhaps the
district court intended for its finding to satisfy the statutory language. In any event, the
district court made this finding without properly analyzing Mother's constitutional rights,
and the court must reevaluate the finding after it conducts the proper analysis. On
remand, the district court must reconsider Mother's request for attorney fees, and the
court shall grant the request unless it expressly finds that justice and equity require
otherwise.


       Reversed and remanded with directions.


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