PRIOR
HISTORY: [***1] Appeal
from Douglas District Court; JEAN
F. SHEPHERD, judge.
DISPOSITION:
Affirmed in part, reversed in part,
and remanded with directions.
SYLLABUS: BY
THE COURT
1. Under K.S.A. 2004
Supp. 60-1616(a), a parent has a
right to reasonable parenting time
unless the trial court finds, after
a hearing, that the exercise of
parenting time would seriously endanger
the child's physical, mental, moral,
or emotional health. K.S.A. 2004
Supp. 60-1616(a) creates a rebuttable
presumption that a parent is entitled
to reasonable parenting time and
visitation. This presumption may
be rebutted if, after a hearing,
the trial court finds that the exercise
of parenting time would seriously
endanger the child's physical, mental,
moral, or emotional health.
2. The fundamental
rule of statutory construction to
which all other rules are subordinate
is that the intent of the legislature
governs if that intent can be ascertained.
The legislature is presumed to have
expressed its intent through the
language of the statutory scheme
it enacted. When a statute is plain
and unambiguous, the court must
give effect to the intention of
the legislature as expressed rather
[***2] than determine what
the law should or should not be.
3. Orders which condition
parenting time and visitation upon
a minor child's desires to see a
parent give a minor child the authority
to determine parenting time and
can have the effect of denying parenting
time altogether.
4. Among the factors
that must be considered when determining
the issue of child custody, residency,
and parenting time under K.S.A.
2004 Supp. 60-1610(a)(3)(B) and
K.S.A. 2004 Supp. 60-1616(a), the
trial court must look at the desires
of a minor child as to the child's
custody or residency. The child's
wishes as to custody, residency,
and parenting time and visitation
cannot be the exclusive factor relied
upon by the trial court in determining
parenting time.
COUNSEL:
Brant M. Laue and Chadler E. Colgan,
of Armstrong Teasdale LLP, of Kansas
City, Missouri, for appellant.
Sherri E. Loveland,
of Stevens & Brand, L.L.P.,
of Lawrence, for appellee.
JUDGES:
Before MALONE, P.J., GREEN and BUSER,
JJ. BUSER, J., dissenting.
OPINIONBY: GREEN
OPINION:
[*414] [**686]
GREEN, J. William David Kimbrell
(David) appeals the trial court's
decision regarding parenting time
with his 16-year-old [***3]
son Evan Kimbrell. The issue in
this case is whether the trial court
can condition a noncustodial parent's
right to parenting time with his
or her [**687] minor
child upon the desires of the child.
We determine that this cannot be
done. K.S.A. 2004 Supp. 60-1616(a)
makes it clear that a parent has
a right to reasonable parenting
time with his or her minor child
"unless the court finds, after
a hearing, that the exercise of
parenting time would seriously endanger
the child's physical, mental, moral
or emotional health." Conditioning
parenting time on the wishes of
a minor child improperly gives the
child the authority to determine
a noncustodial parent's rights to
parenting time and visitation and
can have the effect of completely
denying the noncustodial parent's
rights to parenting time.
Under the facts of
this case, we determine that in
the absence of a finding that parenting
time "would seriously endanger
the child's physical, mental, moral
or emotional health," the trial
court must set a reasonable and
specific schedule for David's parenting
time with Evan. Accordingly, we
reverse in part and remand to the
trial court with directions to either
determine an [***4] appropriate
and reasonable parenting time and
visitation schedule or make the
required statutory finding that
the exercise of parenting time in
this case would seriously endanger
the child's physical, mental, moral,
or emotional health.
The parties, David
Kimbrell and Janet Bouley, formerly
known as Janet Kimbrell, divorced
in April 1996, after nearly 16 years
of marriage. The parties had three
children together, Anna Kimbrell
(date of birth 04/18/81), Dylan
Kimbrell (date of birth 09/05/86),
and Evan (date of birth 10/09/88).
At present, Evan is the only minor
child involved in this case.
At the time of their
divorce, David and Janet entered
into a mediated agreement, where
they agreed to joint custody of
their [*415] children and
a shared parenting time arrangement.
Apparently, about 6 months after
the divorce, Janet and David resumed
their relationship, but it was bumpy
over the next several years. They
ended their relationship in May
2000.
In July 2001, David moved
to modify the 1996 divorce decree
and for an emergency change of placement
for Dylan and Evan. In his motion,
David asked that he be given residential
custody of Dylan and Evan, that
the trial court order strict [***5]
supervision of Janet's contact with
the boys, and that the trial court
order a psychological evaluation
of Janet, Dylan, and Evan to determine
whether Janet was alienating the
children from him. David maintained
that Janet had "commenced a
program and concerted effort to
alienate the three children"
from him and that she had interfered
with his visitations and the parenting
time and visitation schedule. At
David's request, these motions were
dismissed in March 2002.
For summer 2001, the
parties agreed to a split parenting
arrangement where the children would
essentially spend alternating weeks
with each parent. In addition, the
parties agreed to participate in
psychological evaluations and testing.
The agreed parenting plan was to
continue until psychological evaluations
and reports were completed.
Upon agreement by the
parties, the trial court appointed
Susan Vorhees, Ph.D., to conduct
evaluation and testing of the parties
and their minor children. Although
David later moved for a protective
order to prohibit the dissemination
of Dr. Vorhees' proposed report,
the trial court ordered that Dr.
Vorhees' evaluation be provided
to the court. Dr. Vorhees' report,
which was filed [***6] in
December 2002, indicated that David
was alienated from his children
due to his own behavior. According
to Dr. Vorhees, "[David] is
alienated from them by his own inability
to accept that they and their mother
are independent individuals, that
they need and want a relationship
with both parents, and that he cannot
be in control of either of these
relationships." Dr. Vorhees
indicated that David's alienation
from the children could be resolved
by David trying to accept his children
for who they are and by listening
to his children.
[*416]
The trial court, on its own motion,
appointed retired District Court
Judge James Buchele as the case
manager in January 2002. The trial
court's decision in this case indicates
that the parties had been voluntarily
working with Judge Buchele since
October 2001. Judge Buchele recommended
in January 2002 that the children
reside with Janet and that David's
parenting time be "as approved
[**688] by the Case Manager
or as ordered by the Court."
David moved for review of these
recommendations and also for an
order for family therapy and other
relief.
In February 2002, Judge
Buchele made additional recommendations,
including that Dylan and Evan be
with David [***7] on Wednesdays
after school until 8 p.m. and on
alternating Saturday and Sunday
afternoons. Judge Buchele again
made recommendations in March 2002.
Judge Buchele recommended that David
spend a week during spring break
with Evan and that the parties participate
in family counseling with Michael
Lubbers, Ph.D. At that time, Dylan
and Evan were seeing Dale Barnum,
Ph.D., and Janet and David were
each working with a mental health
professional. David objected to
both the February 2002 and March
2002 recommendations.
On June 12, 2002, Judge
Buchele submitted his report and
recommendations and also responded
to David's objections. In his report,
Judge Buchele addressed David's
allegations that Janet had alienated
Dylan and Evan. Judge Buchele's
opinion was that Dylan's and Evan's
alienation from David was caused
by David's own conduct. Nevertheless,
Judge Buchele was encouraged by
the fact that David had spoken with
Dr. Barnum and had agreed to work
on a new approach to communicating
with Evan.
In his report, Judge Buchele
recommended modification of the
existing parenting plan. Judge Buchele
expanded David's parenting time
with Evan, setting forth specific
times that Evan would [***8]
spend with David. Judge Buchele's
recommendations assumed there would
be some change in the status quo.
Judge Buchele recommended that David's
parenting time with Dylan be "as
they may agree."
After David and Janet
separately filed objections to Judge
Buchele's recommendations, Judge
Buchele issued a supplemental report
[*417] on June 27, 2002. Judge
Buchele indicated that the brief
attempt to expand David's parenting
time with Evan had been disastrous.
Judge Buchele concluded that the
problems in this case could not
be resolved by additional time being
spent between Evan and his father.
Judge Buchele recommended that Evan
be with David on Wednesdays from
4 to 8 p.m. and for one 24-hour
period every weekend. Both David
and Janet objected to Judge Buchele's
June 27, 2002, supplemental report
and recommendations.
In November 2002, upon
David's motion, the trial court
appointed Dr. Richard Gardner, M.D.,
to conduct a parental alienation
syndrome (PAS) evaluation of the
family. The trial court terminated
its order for counseling with Dr.
Lubbers but ordered Dylan and Evan
to continue therapy with Dr. Barnum.
Moreover, the trial court ordered
that the contact between Evan and
David continue [***9] under
the current arrangement and that
the contact between Dylan and David
be as Dylan desired.
Dr. Gardner completed
the PAS evaluation and filed a written
report in January 2003. Dr. Gardner
found no evidence that the children
were suffering from PAS or that
Janet was a PAS alienator. Instead,
Dr. Gardner indicated that the primary
source of the children's alienation
from David was David's own psychiatric
problems, especially his obsessive-compulsive
personality disorder and paranoid
trends. Dr. Gardner recommended
that Janet continue to have primary
parenting time with Dylan and Evan,
that Janet have primary legal custody,
and that the court rescind the order
requiring Dylan and Evan to participate
in therapy. Dr. Gardner indicated
that the family could be helped
with appropriate treatment given
to David, Dylan, and Evan, but that
such treatment should be on a voluntary
basis.
In September 2003,
David moved for the appointment
of another case manager, for an
order for the parties and children
to participate in therapy, and for
an order enforcing the joint decision
making required under the parties'
joint custody agreement. Attached
to David's motion were letters from
Nancy [***10] Hughes, Ph.D.,
LSCSW, who had conducted an adoption
home study with David and his wife,
and from John Spiridigliozzi, Ph.D.,
a licensed psychologist who had
been working with David for approximately
3 [*418] years. Both Dr. Hughes
and Dr. Spiridigliozzi recommended
the appointment of a case manager.
[**689] Moreover, Dr. Hughes
indicated that she had read some
of the file that David had compiled
in this case and that it did not
fit with her impression of David.
In November 2003, the trial
court appointed William F. Ebert,
III, as special master, whose duties
included recommending therapy for
the parties and their children as
well as preparing findings of fact
and conclusions of law for the trial
court to review if the parties could
not agree on child-rearing decisions
or therapy.
After meeting with the parties,
reviewing the court file, which
included the reports issued by the
various professionals, reviewing
email communication, contacting
individuals identified by the parties,
and discussing the case with the
parties' attorneys, the special
master issued his written report
in January 2004. In an order issued
in February 2004, the trial court
adopted the following proposed conclusions
[***11] of law of the special
master:
"1. If David Kimbrell
genuinely desires to re-establish
meaningful relationships with his
children, it will be necessary for
him to participate in individual
therapy with a therapist who is
knowledgeable about parental alienation
syndrome and knowledgeable about
parents who are emotionally abusive,
especially those with significant
psychiatric problems.
"2. If the individual
therapy process with David is successful
(i.e. if David can be helped to
. . . appreciate . . . how he has
contributed to the damaged relationships
with his children and helped to
understand how to modify his expectations
and behavior accordingly) then the
door should be opened to including
Evan and/or Dylan in the therapy
process, if they choose to participate
(as per Dr. Gardner's recommendations,
§ 6, Pages 117, 118, Gardner
Report)."
David moved for reconsideration
of the trial court's decision or,
alternatively, to modify its previous
orders. In his motion, David requested
specific orders relating to the
following: parenting time and visitation,
exchanging information regarding
the children, counseling, and terminating
the special master's appointment.
[***12] In his motion, David
argued that there could not be a
therapy precondition to his contact
with his children. In addition,
David argued that the special master's
report was unreliable because it
was factually flawed, placed undue
reliance on questionable expert
opinions, and did not comport with
due process.
[*419] In a memorandum
decision filed in September 2004,
the trial court granted in part
and denied in part David's motion.
The trial court concluded:
"1. Based upon the case
history, recommendations filed with
the court, and the lack of any success
with court-ordered therapy, the
court will not order any of the
parties in this case to participate
in therapy. However, the court concurs
with the special master's recommendation
that Respondent participate in therapy
to attempt to gain some insight
into his relationship with his biological
children and that any of his children
participate in that therapy as they
would like.
"2. Dylan, DOB 09/05/86,
is now eighteen. His parenting time
is no longer under the jurisdiction
of this court.
"3. Evan, DOB 10/09/88,
is almost sixteen. His parenting
time with his father, given his
maturity and the history of this
case, should be [***13] as
is mutually requested."
In addition, the trial court
directed David and Janet to meet
on a quarterly basis with their
attorneys and the special master
"to exchange information about
the general health, welfare, and
education of the minor child."
The trial court stated that Janet
had the right to make the necessary
day-to-day decisions for Evan. The
trial court noted that David's contact
with Evan was not contingent upon
David participating in therapy but
was "contingent upon the contact
being mutually requested".
Standard of Review
In reviewing the trial court's
decision, we bear in mind that the
judgment of the trial court regarding
parenting time and [**690]
visitation will not be disturbed
absent an affirmative showing of
abuse of discretion. See Skillett
v. Sierra, 30 Kan. App. 2d 1041,
1048-49, 53 P.3d 1234, rev. denied
275 Kan. 965 (2002); In re Marriage
of McNeely, 15 Kan. App. 2d 762,
764, 815 P.2d 1125, rev. denied
249 Kan. 776 (1991). "Judicial
discretion is abused only when no
reasonable person would take the
view adopted by the trial court.
[Citation omitted.]" Varney
Business Services, Inc. v. Pottroff,
275 Kan. 20, 44, 59 P.3d 1003 (2002).
[***14] However, "if
a constitutional or statutory right
has been violated, the trial [court's]
use of discretion is limited. Under
these circumstances there is a greater
need for articulation by the trial
[court] of the reasons for [its]
'discretionary' [*420]
decision." Saucedo v. Winger,
252 Kan. 718, 731, 850 P.2d 908
(1993).
Moreover, the arguments raised
by David require this court to review
the factual findings and legal conclusions
in the trial court's September 2004
memorandum decision. The function
of an appellate court is to determine
whether the trial court's findings
of fact are supported by substantial
competent evidence and whether the
findings are sufficient to support
the trial court's conclusions of
law. Substantial evidence is such
legal and relevant evidence as a
reasonable person might accept as
sufficient to support a conclusion.
U.S.D. No. 233 v. Kansas Ass'n of
American Educators, 275 Kan. 313,
318, 64 P.3d 372 (2003). An appellate
court's review of conclusions of
law is unlimited. Nicholas v. Nicholas,
277 Kan. 171, 177, 83 P.3d 214 (2004).
Due Process
David first argues that the
trial court's decision [***15]
infringes upon his parental rights
without any showing that he is an
unfit parent or that he presents
any threat or danger to his child.
David maintains that the trial court's
decision results in a denial of
due process.
It is well established that
parents have fundamental rights
in the custody and control of their
children under the Due Process Clause
of the Fourteenth Amendment of the
United States Constitution. See,
e.g. Troxel v. Granville, 530 U.S.
57, 65-66, 147 L. Ed. 2d 49, 120
S. Ct. 2054 (2000). In In re Cooper,
230 Kan. 57, 64, 631 P.2d 632 (1981),
our Supreme Court stated: "Virtually
all jurisdictions including Kansas
recognize the parents' rights of
custody and control of their children
are liberty interests protected
by the Fourteenth Amendment Due
Process Clause." Moreover,
in In re Adoption of B.M.W., 268
Kan. 871, 881, 2 P.3d 159 (2000),
our Supreme Court recognized that
"'"basic parental rights
are fundamental rights protected
by the Fourteenth Amendment to the
Constitution of the United States.
The right to be the legal parent
of a child is one of these rights,
which cannot be abrogated except
for compelling [***16] reasons.
[Citations omitted.]"'"
Noting that a parent has
a right to provide a home and direct
the children's upbringing and education,
this court in Spradling v.
[*421] Harris, 13 Kan. App.
2d 595, 597, 778 P.2d 365, rev.
denied 245 Kan. 786 (1989), stated
the following:
"The Fourteenth Amendment
to the United States Constitution
provides: 'No State shall . . .
deprive any person of life, liberty,
or property, without due process
of law.' A parent's right to establish
a home and direct the upbringing
and education of children has long
been recognized as a fundamental
right protected by the Fourteenth
Amendment. [Citations omitted.]"
See also Washington v. Glucksberg,
521 U.S. 702, 720, 138 L. Ed. 2d
772, 117 S. Ct. 2258, 117 S. Ct.
2302 (1997) ("We have held
that, in addition to the specific
freedoms protected by the Bill of
Rights, the 'liberty' specifically
protected by the Due Process Clause
includes the right[] . . . to direct
the education and upbringing of
one's children.").
It is unclear whether parents
have a specific due process right
under the United States Constitution
regarding parenting time and visitation
with their [***17] children.
See Rutkin, 3 Family Law and Practice,
Child Custody and Visitation §
32.09[2], p. 32-268 (MB July 2005)
("Some commentators contend
that the noncustodial parent's right
to visitation is a constitutionally
protected right. Others find the
right to visitation to be among
the natural rights of a fit parent.").
[**691] Nevertheless, Kansas
law as codified in K.S.A. 2004 Supp.
60-1610(a)(2)-(5) and K.S.A. 2004
Supp. 60-1616(a) and (c) makes it
clear that parents have a right
to parenting time and visitation
with their children, absent exceptional
circumstances, such as a threat
to the children's welfare. This
is in line with other jurisdictions
which recognize that noncustodial
parents have a natural right to
visitation with their children.
See Maxwell v. LeBlanc, 434 So.
2d 375, 376 (La. 1983) (right of
visitation for noncustodial parent
is natural right); Kulla v. McNulty,
472 N.W.2d 175, 182 (Minn. App.
1991) ("'Visitation is to be
regarded as a parental right essential
to the continuance and maintenance
of a child-to-parent relationship
between the child and noncustodial
parent[.]'"); Young v. Young,
212 App. Div. 2d 114, 122, 628 N.Y.S.2d
957 (1995) [***18] (visitation
is joint right of noncustodial parent
and child); Pettry v. Pettry, 20
Ohio App. 3d 350, 352, 20 Ohio B.
454, 486 N.E.2d 213 (1984) (noncustodial
parent's visitation right is natural
right and should only be denied
under extraordinary circumstances).
[*422] K.S.A.
2004 Supp. 60-1616(a)
Under K.S.A. 2004 Supp. 60-1616(a),
"[a] parent is entitled to
reasonable parenting time unless
the court finds, after a hearing,
that the exercise of parenting time
would seriously endanger the child's
physical, mental, moral or emotional
health."
In interpreting K.S.A. 2004
Supp. 60-1616(a), we note that an
appellate court's review of statutory
interpretation, which is a question
of law, is unlimited. The appellate
court is not bound by the trial
court's interpretation of a statute.
See Cooper v. Werholtz, 277 Kan.
250, 252, 83 P.3d 1212 (2004). Moreover,
the following principles are helpful
in our interpretation of K.S.A.
2004 Supp. 60-1616(a):
"The fundamental rule
of statutory construction to which
all other rules are subordinate
is that the intent [***19]
of the legislature governs if that
intent can be ascertained. The legislature
is presumed to have expressed its
intent through the language of the
statutory scheme it enacted. When
a statute is plain and unambiguous,
the court must give effect to the
intention of the legislature as
expressed, rather than determine
what the law should or should not
be. [Citation omitted.]" Williamson
v. City of Hays, 275 Kan. 300, 305,
64 P.3d 364 (2003).
The clear intent of K.S.A.
2004 Supp. 60-1616(a) is to create
a rebuttable presumption that a
parent is entitled to reasonable
parenting time and visitation. This
presumption may be rebutted if,
after a hearing, the trial court
finds "that the exercise of
parenting time would seriously endanger
the child's physical, mental, moral
or emotional health." K.S.A.
2004 Supp. 60-1616(a); see In re
Marriage of Kiister, 245 Kan. 199,
201, 777 P.2d 272 (1989). Without
such a finding, however, K.S.A.
2004 Supp. 60-1616(a) indicates
that a trial court must enter an
order for reasonable parenting time.
In this case, there was no
finding by [***20] the trial
court that the exercise of parenting
time by David would seriously endanger
Evan's physical, mental, moral,
or emotional health. Absent this
finding by the trial court, David
was entitled to reasonable parenting
time with Evan under K.S.A 2004
Supp. 60-1616(a). In fact, the trial
court's September 2004 decision
indicated that David should be allowed
to have parenting time with Evan.
The trial court, however, made David's
parenting time contingent upon Evan's
desires or requests. Our inquiry
now turns to whether the [*423]
trial court's parenting time finding,
which conditioned visitation on
Evan's wishes, improperly impinged
on David's right to reasonable parenting
time and visitation.
Trial Court's Order Relating
to Parenting Time
David maintains that the
trial court erred in giving dispositive
effect to Evan's preference relating
to parenting time and visitation.
David argues that a court order
that places the determination of
parenting time with the minor child
is improper and is a complete abrogation
of judicial authority. David contends
that a trial court may either deny
parenting time completely in certain
exceptional circumstances subject
[***21] to very high standards
or set specific times when a parent
may exercise his or her parenting
time.
[**692] In researching
David's argument, we find no Kansas
cases that have addressed the issue
of whether a trial court may condition
parenting time on the desires or
requests of a minor child. David
cites to several cases from other
jurisdictions which indicate that
a court should not give minor children
the authority to determine a noncustodial
parent's parenting time and visitation.
In Kreitz v. Kreitz, 750
S.W.2d 681, 686 (Mo. App. 1988),
the Missouri Court of Appeals held
that it was improper for the trial
court in a divorce decree to award
the father visitation rights and
temporary custody "as arranged
to by the minor children."
In remanding the case to the trial
court, the appellate court noted
that the order entered by the trial
court did not set forth certain
and reasonable rights of visitation.
The court further stated that in
the absence of finding the father
to be an unfit parent, "the
trial court should encourage a continued
relationship between the divorced
parent and child by ensuring that
the parent has a right to reasonable
access to the child. [Citation [***22]
omitted.]" 750 S.W.2d at 686.
Similarly, in Jordan v. Jordan,
288 App. Div. 2d 709, 709-10, 732
N.Y.S.2d 478 (2001), the court determined
that visitation should not have
been based upon the children's wishes,
in the absence of evidence that
significant emotional harm would
result to the children from visitation.
In Morgan v. Morgan, 20 N.C.
App. 641, 642, 202 S.E.2d 356 (1974),
the North Carolina Court of Appeals
held that it was improper [*424]
for the trial court to order that
the father's visitation rights would
be subject to the mother's consent
and would be discretionary with
the child. In vacating the trial
court's judgment, the North Carolina
Court of Appeals stated: "While
we realize that the preferences
of a 14 year old are entitled to
some weight in determining custody
and visitation rights, it is error
to allow the minor to dictate, at
will from time to time, whether
the judgment of the court is to
be honored." 20 N.C. App. at
642.
The holdings from Kreitz,
Jordan, and Morgan indicate that
a trial court's orders regarding
parenting time and visitation should
not be conditioned upon a minor
child's [***23] desires to
see (or not see) the noncustodial
parent. We find these cases to be
persuasive. The dissent cites to
Jabri v. Jabri, 193 App. Div. 2d
782, 783-84, 598 N.Y.S.2d 535 (1993),
where the appellate court upheld
a ruling conditioning visitation
on the wishes of a 16-year-old child
where psychiatric testimony indicated
that compulsory visitation would
not be in the child's best interests.
Nevertheless, Jabri is distinguishable
because there was no mention within
that case that the court's order
of visitation was constrained by
a statute similar to K.S.A. 2004
Supp. 60-1616(a). More important,
in that case, there was evidence
to support a possible "endangerment"
and a finding that visitation would
not be in the child's best interest.
Here, the parenting time
and visitation order must comply
with K.S.A. 2004 Supp. 60-1616(a).
The order entered in this case gives
the minor child the authority to
determine the noncustodial parent's
parenting time and can have the
effect of denying the noncustodial
parent his or her right to parenting
time. See Nancy E.M. v. Kenneth
D.M., 316 Pa. Super. 351, 353, 357,
462 A.2d 1386 (1983) [***24]
(ordering visitation at desire of
17-year-old child is tantamount
to denying a parent's visitation
rights). Without a finding that
"the exercise of parenting
time would seriously endanger the
child's physical, mental, moral
or emotional health" under
K.S.A. 2004 Supp. 60-1616(a), such
orders are improper.
In his brief, David has informed
us that he has not had any parental
contact with Evan since late 2002.
If this is in fact the case, David
has been effectively denied any
parenting time with Evan. With no
statutory finding that David's parenting
time would [*425] seriously
endanger Evan, the trial court should
have ordered certain and reasonable
parenting and visitation times in
order to ensure that David would
have the opportunity to exercise
his parenting time rights. The trial
court improperly made David's parenting
time with Evan contingent on Evan's
desires or requests to see his father.
We wish to make clear that
the above analysis does not preclude
the trial court from considering
a child's desires when setting a
parenting time and visitation schedule.
[**693] In fact, K.S.A. 2004
Supp. 60-1610(a)(3)(B) states that
"in determining [***25]
the issue of child custody, residency,
and parenting time, the court shall
consider all of the relevant factors,
including but not limited to: .
. . (iii) the desires of the child
as to the child's custody or residency."
Under our applicable statutes, a
child's desires is only one of the
factors to be considered when determining
the issue of parenting time and
visitation. Noting that a court
may consider a child's wishes concerning
visitation but that such wishes
are not controlling even in jurisdictions
that afford great weight to an older
child's preference, Professor Linda
Henry Elrod, in Rutkin, 3 Family
Law and Practice, Child Custody
and Visitation § 32.09[3][c],
pp. 32-278 to 32-279 (MB July 2005),
cautioned:
"As with awarding custody,
the court may consider the child's
wishes as to visitation. The court
must balance its parens patriae
role with its recognition of the
importance of respecting the child's
wishes. The weight to be given the
child's preference depends upon
the child's age and maturity. Even
in jurisdictions that give great
weight to the preferences of older
children, the children's wishes
are not controlling.
"Courts are reluctant
to put too [***26] much weight
on the child's desires as to visitation
because the child's immature emotions
or the custodial parent's disparaging
comments about the other parent
may form the basis for the child's
feelings."
Here, the trial court should
consider Evan's wishes when setting
a parenting time schedule. Nevertheless,
this cannot be the exclusive factor.
In pointing out that children are
more interested in their momentary
desires than the long-range needs
for developing a healthy relationship
with both parents, the Mississippi
Court of Appeals stated:
[*426] "'While
there is nothing wrong with the
children being heard regarding their
wishes, our law proceeds on the
assumption that they are nevertheless
children and, thus, more interested
in the desire of the moment than
in considering the long range needs
for the development of a healthy
relationship with both parents where
that is possible.' [Citation omitted.]"
Ellis v. Ellis, 840 So. 2d 806,
813 (Miss. App. 2003).
Consequently, in the absence
of a finding under K.S.A. 2004 Supp.
60-1616(a) that "the exercise
of parenting time would seriously
endanger the child's physical, mental,
moral [***27] or emotional
health," the trial court should
have set forth certain and reasonable
times for David's parenting time
with Evan. See Rutkin, 3 Family
Law and Practice, Child Custody
and Visitation § 32.09[5],
p. 32-294 (MB July 2005) ("The
visitation schedule should be detailed,
taking into consideration the needs
and desires of both parents and
child."). The trial court should
not have conditioned David's parenting
time with Evan upon Evan's desires
or requests to see his father.
Nevertheless, despite the
clear statutory language of K.S.A.
2004 Supp. 60-1616(a) entitling
a parent to reasonable parenting
time, the dissent says that the
trial court's parenting time order,
conditioning the parenting time
on the child's wishes, will suffice.
The dissent argues for an unstated
statutory purpose. In essence, the
dissent would have us rewrite the
plain language of K.S.A. 2004 Supp.
60-1616(a) to validate the parenting
time order issued in this case.
Nevertheless, our course must be
directed by Kansas law.
To illustrate the lack of
logic behind the dissent's argument,
we will examine it in the form of
a categorical syllogism: [***28]
Major Premise: All noncustodial
parents, possessing an obsessive
and compulsive personality disorder,
may have their reasonable parenting
time conditioned on the wishes of
their children.
Minor Premise: Appellant
is a noncustodial parents who has
an obsessive and compulsive personality
disorder.
Conclusion: Therefore, appellant
may have his or her reasonable parenting
time conditioned on the wishes of
his or her children.
Although this syllogism is
logically correct, the rule established
by it is logically inconsistent
with K.S.A. 2004 Supp. 60-1616(a).
[**694]
[*427] Step One
Major Premise: If noncustodial
parents are entitled to reasonable
parenting time, their exercise of
parenting time will not seriously
endanger their children's physical,
mental, moral, or emotional health.
Minor Premise: The noncustodial
parent is entitled to reasonable
parenting time.
Conclusion: Therefore, the
noncustodial parent's exercise of
parenting time will not seriously
endanger his or her children's physical,
mental, moral, or emotional health.
Step Two
Major Premise: If noncustodial
parents are entitled to reasonable
[***29] parenting time, their
parenting time should not be conditioned
on the wishes of their children.
Minor Premise: The noncustodial
parent is entitled to reasonable
parenting time.
Conclusion: Therefore, the
noncustodial parent's parenting
time should not be conditioned on
the wishes of his or her children.
We know that both of these
major premises in our last two syllogisms
are legally sound because they are
based on K.S.A. 2004 Supp. 60-1616(a)
and on the persuasive holdings in
Kreitz, Jordan, Morgan, and Nancy
E.M. The conclusions in these syllogisms
conflict with the conclusion from
the first syllogism. How do we have
these logically sound syllogisms
resulting in conflicting conclusions?
The flaw lies in the major premise
of the first syllogism. The major
premise of the first syllogism is
overbroad, is unsupported by statute,
and rejects the clear statutory
language of K.S.A. 2004 Supp. 60-1616(a).
K.S.A. 2004 Supp. 60-1616(a)
preserves and promotes the comprehensive
purpose of allowing reasonable parenting
time to a noncustodial parent unless
the court finds, after [***30]
a hearing, that reasonable parenting
time would seriously endanger the
child's physical, mental, moral,
or emotional health. Here, the trial
court made no such factual finding
that visitation would seriously
endanger [*428] Evan's physical,
mental, moral, or emotional health.
Moreover, the dissent concedes that
the trial court never made such
a factual finding.
The dissent's argument presents
a narrow question in this case:
What did our legislature mean when
it used the phrase "entitled
to reasonable parenting time"
in enacting K.S.A. 2004 Supp. 60-1616(a)?
As a verb, "entitled"
means "to furnish with a right."
Webster's II New College Dictionary
376 (2001). The word "entitled"
follows the noun "parent"
in K.S.A. 2004 Supp. 60-1616(a).
Clearly, the legislature intended
to furnish the right of reasonable
parenting time to a parent. The
dissent is not concerned that K.S.A.
2004 Supp. 60-1616(a) does not contain
the words "which may be conditioned
on the child's wishes" after
the statutory phrase "[a] parent
is entitled to reasonable parenting
time . . . ."
Although the clear statutory
language of K.S.A. 2004 Supp. 60-1616(a)
[***31] confers reasonable
parenting time to a parent, the
dissent would supplant a parent's
statutory right to reasonable parenting
time with that of the child's wishes.
As we stated previously, the trial
court may consider a child's wishes
when setting a parenting time schedule.
Nevertheless, this must not be the
exclusive or controlling factor.
Otherwise, the result advocated
by the dissent would stymie the
clear statutory mandate of K.S.A.
2004 Supp. 60-1616(a). For example,
if children are given the option
of determining what reasonable parenting
time is, the statutory mandate under
K.S.A. 2004 Supp. 60-1616(a) becomes
meaningless. See In re M.R., 272
Kan. 1335, 1342, 38 P.3d 694 (2002)
(It is presumed that the legislature
does not intend to enact useless
or meaningless legislation.).
The dissent's support for
this unstated statutory purpose
distorts the basic canons of statutory
interpretation. As noted previously,
"the legislature is presumed
to have expressed its intent through
the language of the statutory scheme
it enacted. When a statute is plain
and unambiguous, the court must
give effect to the intention [***32]
of the legislature as expressed.
. . . [Citation omitted.]"
Williamson v. City of Hays, 275
Kan. 300, 305, 64 P.3d 364 (2003).
Furthermore, in interpreting statutes,
"ordinary words are to be given
their ordinary meaning, [**695]
and a statute should not be so read
as to [*429] add that which
is not readily found therein or
to read out what as a matter of
ordinary English language is in
it. [Citation omitted.]" Dawson
v. Prager, 276 Kan. 373, 383, 76
P.3d 1036 (2003). The plain and
simple language of K.S.A. 2004 Supp.
60-1616(a) provides noncustodial
parents with a presumptive right
to reasonable parenting time.
.S.A. 2004 Supp. 60-1616(a)
allows only one statutory exception
to requiring a trial court to award
reasonable parenting time: when
the trial court finds, after a hearing,
that reasonable parenting time would
seriously endanger the child's physical,
mental, moral, or emotional health.
K.S.A. 2004 Supp. 60-1616(a) expressly
makes a finding of endangerment
a condition precedent to restricting
the reasonable parenting time of
a noncustodial parent. As stated
previously, the trial court made
no such [***33] factual finding
in this case. In fact, the trial
court's parenting time order allowing
visitation between David and Evan
implicitly indicates that the parenting
time between them would not seriously
endanger Evan's "physical,
mental, moral or emotional health."
The statutory exception to granting
reasonable parenting time under
K.S.A. 2004 Supp. 60-1616(a) was
never fulfilled. Moreover, the presumption
under K.S.A. 2004 Supp. 60-1616(a)
that David was entitled to reasonable
parenting time with Evan went unrebutted.
As a result, the trial court had
no statutory authority to restrict
David's reasonable parenting time
with Evan in the way that it did.
Finally, the dissent concludes
by stating that "the district
court's parenting time order was
not arbitrary, fanciful, or unreasonable."
Assuming arguendo that the trial
court had the statutory authority
under K.S.A. 2004 Supp. 60-1616(a)
to restrict David's parenting time
as it did, the trial court abused
its discretion in entering its order.
Neither the trial court nor the
dissent points to any evidence in
the record to show that Evan and
David would have [***34] engaged
in any type of reasonable parenting
time on their own. Moreover, in
his brief, David states that he
has not had any parental contact
with Evan since late 2002. Thus,
the trial court's parenting time
order, if it was not based on evidence
that David and Evan would exercise
reasonable parenting time on their
own, was completely hollow.
[*430] On the
other hand, the dissent implies
that "if Evan [had] repeatedly
refused David's requests for reasonable
parenting time," David could
ask the trial court to modify its
order under K.S.A. 2004 Supp. 60-1616(c).
Subsection (c) gives the trial court
authority to modify an order granting
or denying parenting time or visitation
rights if the modification would
be in the best interests of the
child. Nevertheless, if David sought
relief under K.S.A. 2004 Supp. 60-1616(c),
he would have to move for modification
of the parenting time order. In
addition, David would have the burden
of proof on this motion. David would
have to convince the trial court
that it would be in the best interests
of Evan to modify the current parenting
time order. How does David go from
enjoying an unrebutted presumption
[***35] that he is entitled
to reasonable parenting time to
a situation where the burden would
be shifted to him? What is the legal
justification for this burden shift?
The dissent offers none. Under K.S.A.
2004 Supp. 60-1616(a), the burden
does not shift back and forth.
As a result, the parenting
time order was not reasonable based
on the existing facts of this case.
The result advocated by the dissent
is not warranted under Kansas law.
Based on the trial court's failure
to comply with K.S.A. 2004 Supp.
60-1616(a), we determine that the
trial court abused its discretion
in its order of parenting time and
visitation. See Unwitting Victim
v. C.S., 273 Kan. 937, 944, 47 P.3d
392 (2002) ("'An abuse of discretion
occurs where the district court
clearly erred or ventured beyond
the limits of permissible choice
under the circumstances.'").
Accordingly, we reverse the trial
court's order and remand the case
with directions to either set an
appropriate parenting time and visitation
schedule or make the required statutory
finding that the exercise of David's
parenting time would seriously endanger
Evan's physical, mental, moral,
[***36] or emotional health.
Therapy Precondition to David's
Parenting Time
Next, David argues that the
trial court erred by effectively
imposing a therapy precondition
[**696] to his contact with
Evan. Nevertheless, in its September
2004 memorandum decision, the trial
court made clear that it was not
imposing a therapy precondition
to David's [*431] contact
with Evan. The trial court specifically
stated: "Respondent's contact
with Evan, his almost sixteen year
old son, is not contingent upon
Respondent's participating in therapy.
It is, however, contingent upon
said contact being mutually requested."
(Emphasis added.) Based on this
clear language in the trial court's
order, we determine that David's
argument is meritless.
Special Master's Report
Finally, David raises the
following additional arguments on
appeal: (1) The trial court erred
in relying on the special master's
report that was factually flawed;
and (2) the trial court erred in
relying on the special master's
report that placed excessive reliance
on questionable expert opinions.
Because we have reversed the trial
court's order and have remanded
the case for the trial court to
set an appropriate and reasonable
schedule [***37] for parenting
time and visitation, it is unnecessary
to address these additional arguments.
Affirmed in part, reversed
in part, and remanded with directions.
DISSENTBY: BUSER
DISSENT: BUSER,
J., dissenting: In a case of first
impression, the majority holds that
it is a per se abuse of discretion
for a district court to order parenting
time and visitation as mutually
requested by a noncustodial parent
and child. Under the tragic facts
of this case, I believe the district
court appropriately exercised its
discretion by ordering the parenting
time and visitation conditioned
upon the mutual requests of David
and his almost 16-year-old son,
Evan, consistent with the mandate
of K.S.A. 2004 Supp. 60-1616(a)
that "[a] parent is entitled
to reasonable parenting time."
(Emphasis added.)
Supplemental Factual and
Procedural Background
In order to validate the
district court's appropriate exercise
of discretion in this case, it is
necessary to supplement the factual
and procedural history summarized
in the majority's opinion.
In the summer of 2001, David
filed a motion with the district
court seeking the appointment of
psychologist, Dr. Susan Vorhees,
to [***38] conduct expert
evaluations of family members and
to make recommendations [*432]
regarding this domestic dispute.
The district court acceded to David's
request. As noted by the majority,
Dr. Vorhees concluded that not only
was Janet not responsible for alienating
Evan from his father, but that David's
own behavior caused his alienation
from Evan. Following receipt of
Dr. Vorhees' adverse report, David
moved the court to set the report
aside, accused Dr. Vorhees of violating
professional ethics, and insisted
upon her disqualification.
In an effort to facilitate
resolution of the ongoing custody
and parenting time dispute, the
district court appointed retired
District Judge James Buchele as
case manager on January 24, 2002.
After consultation with Evan's therapist,
Judge Buchele recommended specific
parenting time and visitation as
approved by the case manager or
the district court. David objected
to this recommendation.
Four months later, Judge
Buchele asked to withdraw as case
manager after receiving two emails
from David. One email, noted by
the district court in its memorandum
decision, stated:
"So, let me make myself
abundantly clear. You have crossed
the line on many occasions,
[***39] but, one area in particular,
that will remove your judicial protection
and thereby expose you personally
and your company to damages we have
suffered. You have damaged me to
the tune of $ 1 million and counting
. . . . From my information, it
appears that you have been sued
many times in the past, but, you
have used your cloak of judicial
immunity for defense. That ! cloak
will not be there this time.
"This is no 'veiled
threat' as yours were."
Prior to Judge Buchele's
withdrawal in June 2002, he issued
a report to the district court which
indicated: "I am not able to
confirm Janet has actively initiated
steps to isolate these children
from their father. . . . [**697]
It is my opinion that the boys'
alienation from their father comes
primarily from their father's own
conduct."
Although Judge Buchele's
report provided additional parenting
and visitation time between David
and Evan, 2 weeks later he filed
a supplemental report which concluded:
"This brief attempt at expanding
David's parenting time appears to
have been disastrous." With
regard to David and Evan's relationship,
Judge Buchele observed: "the
problems in this case cannot be
resolved solely by a [*433]
dditional time [between] [***40]
Evan and his father. . . . If this
is resolvable it must first be addressed
in therapy."
In July 2002, David's focus
continued to be that Janet was alienating
his children from him. He moved
the court for a parental alienation
syndrome (PAS) evaluation to be
conducted by a nationally known
New Jersey psychiatrist, Dr. Richard
Gardner. As recounted by the district
court:
"In this motion [David]
extolled the virtues and qualifications
of Dr. Gardner to perform this evaluation
and he adamantly requested such
an evaluation, stating that the
parental alienation syndrome was
likely the cause of his sons' alienation
from him. [David] offered to advance
all of Dr. Gardner's fees and expenses,
and stated in his pleading:
. . . if no alienation by
the mother is found to have occurred,
then [David] will accept the current
state of things with his children,
seek appropriate therapeutic intervention
to solve the problem and move on
with his life.'" (Emphasis
added.)
While awaiting this evaluation,
David also sought a court order
terminating therapy for himself,
Janet, and his sons, including Evan.
Janet strongly objected to
the appointment of Dr. Gardner.
[***41] According to the district
court, David's response to that
objection "again lauded the
value of a P.A.S. evaluation . .
. further indicating that Dr. Richard
Gardner was a recognized authority
on the subject." David concluded
his responsive pleading by stating:
"The Court should know,
however, that it is not [David's]
present intention to offer any evidence
in mitigation of Dr. Gardner's results
should they run contrary to his
petition. He intends to accept Dr.
Gardner's assessment and recommendations
and, should they go contrary to
his position, to focus his effort
simply on trying to reconnect with
his children." (Emphasis added.)
In the court order appointing
Dr. Gardner, prepared by David's
counsel, David promised the district
court: "If Dr. Gardner finds
there is no P.A.S., then [David]
will dismiss his present attempt
to have contact with his sons until
they are ready to have contact with
him." (Emphasis added.)
The 137-page evaluation report
by Dr. Gardner was filed with the
district court on January 24, 2003.
The district court's memorandum
decision cited the important conclusions
contained in this extensive report:
[*434] "a.
There is no evidence [***42]
that the children are suffering
with the signs and symptoms of the
parental alienation syndrome (PAS);
"b. There is no evidence
that Janet is a PAS alienator;
"c. The primary source
of the children's alienation from
David is his own significant psychiatric
difficulties, especially his obsessive-compulsive
personality disorder and paranoid
trends. . . . David's repeated refusal
to recognize his own role in their
alienation . . . produces a sense
of frustration and hopelessness
in them with regard to his changing.
His minimization, denial, and even
selective amnesia for his atypical
behaviors frustrate the children
even more . . . ."
After receipt of Dr. Gardner's
report, David wrote Dr. Gardner
a letter wherein he accused him
of "potential fraud and malpractice."
According to the district court,
"Dr. Gardner viewed this as
a malpractice law suit threat made
by [David]." Furthermore, contrary
to David's repeated written promises
to the district court, he repudiated
Dr. Gardner's report and promptly
renewed his efforts for court-ordered
parenting time and visitation with
Evan.
Responding to David's latest
filing, the district court appointed
William F. Ebert, III, [***43]
as special master in November 2003.
In [**698] his January
2004 report, Ebert concluded, in
part:
"Put simply, the evidence
is overwhelming that the underlying
problems in this case can be traced
directly to David Kimbrell.
. . . .
"The Special Master
believes that a large part of David's
unrealistic expectations are grounded
in his sincere conviction that he
is a good father and has done nothing
wrong. In David's mind, he is right.
Dr. Vorhees, Judge Buchele, Dr.
Gardner, Janet, and all the children
are wrong.
. . . .
". . . Parenting adolescents
frequently requires striking some
rather delicate balances. David
has been unable to do this, and
has maintained an uncompromising
position. He has pushed and pushed
to the point that he now has lost
control. The primary responsibility
for correcting the problems which
exist in this divided family is
David's.
. . . .
"David has undermined
the possibility of reviving his
relationship with Evan . . . . There
is little, if anything, that anyone
other than David himself can do
to effect improvements in the various
relationships in this case. Absent
substantial progress by David through
individual therapy, the outlook
[***44] for rebuilding David's
relationships with his children
is bleak."
In February 2004, consistent
with the special master's recommendations,
the district court encouraged David
that if he "wanted [*435]
to establish a meaningful relationship
with his children he would need
to participate in individual therapy
with a therapist who was knowledgeable
about parental alienation syndrome
and knowledgeable about parents
who are 'emotionally abusive, especially
those with significant psychiatric
problems.'" This recommendation
mirrored Dr. Gardner's recommendations.
The district court also implemented
Dr. Gardner's recommendation that
Evan be encouraged to participate
in therapy.
David's response to the district
court's order based upon the special
master's evaluation was predictable.
As noted by the district court:
"On March 8, 2004, the special
master informed the court that [David's]
attorney indicated that [David]
was unwilling to participate further
with the special master. It was
[David's] view that the special
master was biased."
Ultimately, in September
2004, the district court, noting
that Evan was almost 16 years old,
ordered that his "parenting
time with his father, given [***45]
his maturity and the history of
this case, should be as is mutually
requested."
Issue on Appeal
At the outset, I concur with
the majority that David has a statutory
right to reasonable parenting time
with Evan pursuant to K.S.A. 2004
Supp. 60-1616(a). Moreover, absent
a specific finding by the district
court (which was not made in this
case) "that the exercise of
parenting time would seriously endanger
the child's physical, mental, moral
or emotional health," K.S.A.
2004 Supp. 60-1616(a) conveys to
every noncustodial parent a right
to parenting time and visitation.
I also agree with the majority's
finding that the district court's
September 2004 order "indicated
that David should be allowed to
have parenting time with Evan."
The critical question: Is
it a per se abuse of discretion
for the district court to order
parenting time as "mutually
requested" by David and Evan?
Kansas Law Regarding Reasonable
Parenting Time
Kansas law provides: "In
determining visitation rights, the
court's paramount concern is the
best interests of the child."
In re [*436] Marriage of Kiister,
245 Kan. 199, Syl. P2, 777 P.2d
272 (1989). [***46] Moreover,
under Kansas law the district court
has been entrusted with the responsibility
to safeguard the child's best interests
in parenting time and visitation
matters. In one of the more thorough
expositions regarding the district
court's discretionary powers to
limit or deny visitation, our Supreme
Court stated:
"The broad authorization
given to the [district] court by
the statute to make any [**699]
order to advance the welfare of
a minor child certainly entails,
within discretion, the authority
to limit or deny visitation privileges
where the child's welfare is concerned.
"Under such circumstances
as existed here the paramount consideration
is the welfare and best interests
of the child and the trial court
is in the best position to judge
whether the best interests of the
child are being served. (Bergen
v. Bergen, 195 Kan. 103, 403 P.2d
125; Lyerla v. Lyerla, 195 Kan.
259, 403 P.2d 989, and Gardner v.
Gardner, 192 Kan. 529, 389 P.2d
746.)
"Courts of most jurisdictions
are ordinarily reluctant to deny
all visitation rights but authorities
are generally in agreement that
such rights may be denied if the
child's welfare [***47] would
be jeopardized thereby. The right
of visitation is not an absolute
one and must yield to the good of
the child." (Emphasis added.)
Donaldson v. Donaldson, 198 Kan.
111, 113, 422 P.2d 871 (1967).
In short, over many years
Kansas has developed a jurisprudence
that has, as its hallmark, the protection
and promotion of the best interests
of the child in visitation matters,
which now embraces parenting time
under K.S.A. 2004 Supp. 60-1616(a).
Moreover, the means to this worthy
end, by statute and case law, always
has been entrusted to the discretionary
powers of the district court.
The rationale for this jurisprudence,
the inherent limitations of an appellate
court reviewing a district court's
exercise of discretion, and the
meaning of an "abuse of discretion"
in the context of a domestic relations
case have been set forth by our
Supreme Court:
"Certain basic principles
apply in determining an abuse of
the trial court's discretion. The
question of a change of custody
is addressed to the sound judicial
discretion of the trial court and
the appellate court's review of
the trial court's determination
is very limited. (Lewis v. Lewis,
[217 Kan. 366, 368, 537 P.2d 204].)
[***48] The trial court is
in the most advantageous position
to judge how the interests of the
children may be best served. (Parish
v. Parish, [220 Kan. 131, 133, 551
P.2d 792]; and Dalton v. Dalton,
214 Kan. 805, 808, 522 P.2d 378.)
While an appellate court has only
the printed page to consider, the
trial court has the advantage of
seeing the witnesses and parties,
observing their demeanor, and assessing
the [*437] character
of the parties and quality of their
affection and feeling for the children.
(Greene v. Greene, 201 Kan. 701,
704, 443 P.2d 263.) The judgment
of the trial court will not be disturbed
without an affirmation showing of
an abuse in the exercise of discretion.
In Schreiner v. Schreiner, [217
Kan. 337, 343, 537 P.2d 165], our
court defined abuse of discretion
in custody battles as follows:
'Judicial discretion is abused
when judicial action is arbitrary,
fanciful or unreasonable, which
is another way of saying that discretion
is abused only where no reasonable
man would take the view adopted
by the trial court. If reasonable
men could differ as to the propriety
of the action taken by the trial
court then [***49] it cannot
be said that the trial court abused
its discretion. All judicial discretion
may thus be considered as exercisable
only within the bounds of reason
and justice in the broader sense,
and only to be abused when it plainly
overpasses those bounds.'"
Simmons v. Simmons, 223 Kan. 639,
643, 576 P.2d 589 (1978).
Parenting Time Conditioned
Upon Mutual Requests of Parent and
Child
K.S.A. 2004 Supp. 60-1616(a)
simply provides: "A parent
is entitled to reasonable parenting
time . . . ." As conceded by
the majority, there are no Kansas
cases which hold that a district
court's order of parenting time
based upon the mutual requests of
a parent and child is not "reasonable
parenting time" as required
by K.S.A. 2004 Supp. 60-1616(a).
The majority relies on three
cases from other states, however,
to support its
conclusion that "a trial
court's orders regarding parenting
time and visitation should not be
conditioned upon a minor child's
desire to see (or not see) the noncustodial
parent." This precedent is
unavailing because it is inapplicable
to the facts of the present case.
[**700] At the
outset, the majority cites [***50]
to Kreitz v. Kreitz, 750 S.W.2d
681, 686 (Mo. App. 1988), wherein
the Missouri Court of Appeals disapproved
a section of a divorce decree which
provided a noncustodial father visitation
with his three children, then aged
8, 13, and 17 "as arranged
to by the minor children."
Significantly, two of these children
were quite young and obviously immature
to make important decisions regarding
visitation. Moreover, the father
claimed that the mother, "impeded
his efforts to contact, visit or
take temporary custody of their
children." 750 S.W.2d at 683.
By contrast, in the case at bar,
there were extensive, uncontested
expert opinions that Janet did not
alienate Evan against David or
[*438] interfere with David's
contacting of or visiting with Evan.
These expert opinions corroborated
the testimonies of Janet and the
children. Finally, in Kreitz there
was no history of counseling involving
the father and his three children.
In the present case, expert evaluations
were extensive and illuminating
and provided the district court
with a wealth of information that
established the importance of ordering
parenting time conditioned upon
David and Evan's mutual requests.
Similarly, [***51]
the majority's citation to Jordan
v. Jordan, 288 App. Div. 2d 709,
732 N.Y.S.2d 478 (2001), is factually
distinguishable. In Jordan, in contrast
to the present case, there was evidence
the mother had influenced three
children, then aged 14, 11, and
8, against the father who sought
visitation. Once again, the young
ages of these children contrast
with Evan's age and obvious maturity.
The New York court also noted that
the father "obtained professional
assistance, including medication,
to deal with his depression. . .[and
was not] a danger to his children."
288 App. Div. 2d at 710. In the
present case, the district court
concurred with the special master's
recommendation that "[David]
participate in therapy to attempt
to gain some insight into his relationship
with his biological children."
In response, David appealed that
recommendation with predictable
hyperbole: "This ruling presents
the continuing danger that 'therapists'
will determine [David's] parental
rights." (The majority correctly
found David's claim to be "meritless.")
The contrast could not be clearer:
In Jordan, the father obtained counseling.
Here, David actively resisted the
[***52] district court's (and
experts') recommendations to obtain
specialized therapy essential to
rebuilding his relationship with
Evan.
Moreover, it is incorrect
to suggest that New York has adopted
a per se rule
prohibiting visitation upon
the consent of the child in all
circumstances. In a case similar
to the present one, Jabri v. Jabri,
193 App. Div. 2d 782, 783-784, 598
N.Y.S.2d 535 (1993), the appellate
court upheld a ruling conditioning
visitation on the wishes of a 16-year-old
child where psychiatric testimony
indicated compulsory visitation
would not be in the child's best
interests.
Finally, Morgan v. Morgan,
20 N.C. App. 641, 642, 202 S.E.2d
356 (1974), is also distinguishable
because, unlike the present case,
[*439] the North Carolina
trial court had conditioned visitation
not only upon the wishes of a 14-year-old
child, but also upon the consent
of his mother. In the case at bar,
the district court did not provide
Janet with any authority to modify
or limit David's parenting time
and visitation, let alone preclude
it.
It is not the universal rule
that a child's wishes may never
provide the sole criterion
for either the limitation
[***53] or denial of visitation:
"In a considerable number
of cases, it has been argued that
visitation rights should be denied
because the child did not wish to
see or actually feared seeing the
parent seeking such rights. Where
the evidence is convincing that
the child is actually unwilling
to see the parent, so that little
good would be done by forced visitation,
the courts will generally take the
child's wishes into consideration.
However, if the child's wishes seem
but a parroting of the custodial
parent's wishes, or if the child
has never really known the parent
seeking visitation, so that it does
not have a proper basis for an intelligent
decision, or if the child is not
old enough to form a considered
opinion, the child's wishes and
fears will be strongly discounted."
Annot., 88 A.L.R.2d 148, 181.
[**701] See Pettry
v. Pettry, 20 Ohio App. 3d 350,
352-53, 20 Ohio B. 454, 486 N.E.2d
213 (1984).
A fair reading of precedents
from other states yields the conclusion
that it is not a per se abuse of
discretion to order parenting time
conditioned upon the mutual requests
of a parent and child. Rather, this
determination may be made by trial
judges exercising their discretion
[***54] in appropriate cases
based upon specific factual circumstances.
I share the majority's concern
that an order "giving the minor
child the authority to determine
the noncustodial parent's parenting
time . . . can have the effect of
denying the noncustodial parent
his or her right to parenting time."
I also agree with my colleagues
that there exist two primary concerns
with such parenting time and visitation
orders. First, courts are reluctant
to put too much weight on a child's
desires because of the child's immature
emotions. Second, the custodial
parent's disparaging remarks about
the noncustodial parent may inappropriately
bias the child's feelings.
With these two primary concerns
in mind, it is necessary to review
the record to see if they are applicable
to the facts of this [*440]
case. With regard to Evan's maturity
at the time of the district court's
order regarding mutually requested
parenting time and visitation, Evan
was in high school and 22 days from
celebrating his 16th birthday. He
maintained a high grade-point average
with many "advanced placement"
classes. In addition to his regular
course work, Evan attended an independent
study project to learn the Japanese
language [***55] and, in fact,
he was independently tutored in
Japanese. He earned money as a soccer
referee and also worked out at a
local gym to improve his physical
health. In short, the record is
replete with facts to support the
conclusion that Evan is a very intelligent,
motivated, and mature young man.
With regard to Janet's influence
over Evan as it relates to parenting
time and visitation, this issue
has been discussed in the majority's
opinion, in the supplemental factual
background, and in the district
court's memorandum decision. The
unanimous opinions of the evaluating
experts (two of whom were specifically
requested to conduct evaluations
by David) were that Janet was not
responsible for alienating any of
the children from David. Dr. Gardner's
opinions were especially forceful
in this regard, advising the district
court that he could find no evidence
that Janet obstructed David's parenting
time and that, despite Evan's and
Dylan's resistance, Janet insisted
that the boys visit their father.
Dr. Gardner concluded: "Janet's
insistence was genuine in that from
everything I know of her, she really
wants the children to have a relationship
with their father and hopes that
he would reduce [***56] the
behaviors that were alienating them."
Janet's persistence in encouraging
Evan to have visitation with David
was corroborated by one therapist,
who noted that this persistence
sometimes made Evan angry at his
mother.
In summary, the record on
appeal compels the conclusion that
the two primary and justifiable
concerns that courts typically raise
about conditioning parenting time
and visitation upon the desires
or requests of a child are not present
in this case. In fact, the record
persuasively establishes that Evan
has the requisite maturity and Janet
has the best intentions to have
made parenting time and visitation
conditioned upon the mutual requests
of father and son an appropriate
option for the district court to
consider.
[*441] Was the
Parenting Time Order Arbitrary,
Fanciful, or Unreasonable?
Having established that Kansas
law and many other jurisdictions
do not per se prohibit parenting
time and visitation conditioned
upon the mutual requests of a parent
and child and that the concerns
courts typically express about such
orders are not present in this case,
the question remains: Was this parenting
time and visitation order arbitrary,
fanciful, or unreasonable, i.
[***57] e., an abuse of judicial
discretion?
K.S.A. 2004 Supp. 60-1610(a)(3)(B)
mandates that the district court
consider all relevant factors regarding
parenting time and visitation orders.
Seven factors are specifically mentioned,
and three of those are particularly
relevant in this case:
"(B) In determining
the issue of child custody, residency
and parenting time, the [**702]
court shall consider all relevant
factors, including but not limited
to:
. . . .
(iii) the desires of the
child as to the child's custody
or residency;
(iv) the interaction and
interrelationship of the child with
parents, siblings and any
other person who may significantly
affect the
child's bests interests;
(vi) the willingness and
ability of each parent to respect
and appreciate the bond between
the child and the other parent and
to allow for a continuing relationship
between the child and the other
parent."
The majority correctly acknowledges
that "the desires of the child"
is only one of seven statutorily
mandated factors to be considered
by the district court with regard
to parenting time and visitation.
Having said that, however, my colleagues
incorrectly [***58] assume
that Evan's desires were the exclusive
factor relied on by the district
court in exercising its discretion
to fashion a reasonable parenting
time and visitation order. As a
result, the majority fails to consider
whether the district court's parenting
time order was appropriate given
the other relevant factors set forth
in K.S.A. 2004 Supp. 60-1610(a)(3)(B).
A review of the three statutory
factors above, together with the
other important factors cited by
the district court, conclusively
shows the district court's parenting
time order was not arbitrary, fanciful,
or unreasonable given the facts
of this case.
[*442] The Desires
of the Child
The record is painfully clear
that Evan has resisted visitation
with his father. The reasons for
this resistance are serious, pervasive,
and long-standing. Still, there
was expert opinion evidence from
Dr. Gardner to indicate that Evan
and David want to repair their damaged
relationship. Significantly, Dr.
Gardner observed that Evan's antagonistic
behavior "is probably rectifiable
if he will be allowed to have more
input regarding the time he spends
with his father." (Emphasis
added.) Moreover, in [***59]
December 2003, Special Master Ebert
advised the parents: "Evan
clearly wants a relationship with
his Dad, but he is equally clear
that he wants to rebuild the relationship
gradually and he does not want to
be 'made' to adhere to any particular
schedule at this time." (Emphasis
added.)
In Janet's response to Dr.
Gardner's findings, she wrote:
"I am in agreement with
your preliminary recommendation
that the boys should not be required
to visit David under a Court-ordered
visitation schedule, but that the
boys should be able to visit him
any time they wish. In time, I firmly
believe that they will visit him
voluntarily. The relationship between
the boys and David has not improved
when visits have been mandated."
(Emphasis added.)
The majority concentrates
its analysis on the possible perils
of basing parenting time and visitation
on a child's desires. In another
case, that analysis may be valid.
Here, however, Dr. Gardner's expert
opinions, Special Master Ebert's
conclusions, Janet's best judgment,
and Evan's requests collectively
provided the solid foundation upon
which the district court made its
ultimate determination.
David and the majority also
focus on the [***60] possibility
that parenting time and visitation
based upon the desires or requests
of a child "can have the effect
of denying the noncustodial parent'
his or her right to parenting time."
The reality in this case, however,
is that a voluntary, open-ended,
and mutually requested parenting
time and visitation order provides
the best opportunity for bringing
about Evan and David's visitation.
Moreover, under the district court's
order, if Evan repeatedly refuses
David's requests for reasonable
parenting time, K.S.A. 2004 Supp.
60-1616(c) provides the [*443]
means for the district court to
modify its order to impose a structured
parenting time and visitation schedule.
The traditional parenting
time and visitation schedules attempted
previously have failed miserably.
The district court's adoption of
Evan's stated desire for voluntary,
open-ended, and mutually requested
parenting time and visitation (consistent
with the expert opinions of Dr.
Gardner, Special Master Ebert's
recommendation, and Janet's assessment)
was in full accord with the requirements
of K.S.A. 2004 Supp. 60-1616(a)
that [**703] parenting
time be "reasonable."
In this factual [***61] context,
the district court's order was not
arbitrary, fanciful, or unreasonable.
Interaction and Interrelationship
of the Child with Parents
As thoroughly substantiated
by the reports of the experts, case
manager and special master, Evan's
relationship with his father is
broken. Moreover, the primary cause
of this unfortunate situation is
David's obsessive and compulsive
personality disorder. As described
by Dr. Gardner with regard to David's
relationship with Evan and the other
children: "We see here obsession;
we see here controlling behavior;
we see here manipulation."
It borders on understatement
to observe that if the origin of
Evan's estrangement with his father
is David's obsessive, compulsive,
and manipulative personality, the
empowering of Evan to have an equal
standing and some control over the
parenting time and visitation process
enhances the potential for Evan
to engage in visitation with his
father.
The district judge showed
insight into this dynamic when she
wrote: "It is equally confusing
to the court, and perhaps to [David's]
children, that [David] stated that
he would not pursue a requested
parenting time schedule if the evaluator
did [***62] not find parental
alienation syndrome, and yet he
is pursuing contact with a child
which may not be mutually requested."
David's obsessive and compulsive
personality was not simply reflected
in his conduct with Evan. As detailed
earlier, throughout this litigation
David attempted to control and manipulate
the district court--even to the
extent of making false promises
regarding [*444] parenting
time and visitation with Evan. Especially
in this context, the district court
did not error in holding David to
his word.
Willingness and Ability of
Each Parent to Respect the Bond
Between
Child and Other Parent and
to Allow for a Continuing Relationship
As discussed earlier, there
is substantial competent evidence
that Janet is committed to facilitating
a voluntary, open-ended, and mutually
requested parenting time and visitation
process. This is a promising development
essential to achieving the reintegration
of David with his son Evan. The
district court appropriately considered
this factor in making its parenting
time and visitation order.
In summary, the district
court's order was not based solely
upon Evan's desires or requests
regarding visitation but also took
[***63] into account two other
statutory factors relevant to this
case which clearly favored voluntary,
open-ended, and mutually requested
parenting time and visitation. The
district court's exercise of discretion,
therefore, was in full compliance
with K.S.A. 2004 Supp. 60-1610(a)(3)(B)
and K.S.A. 2004 Supp. 60-1616(a).
The district court's parenting
time order was not arbitrary, fanciful,
or unreasonable. To the contrary,
it was rational, realistic, and
thoughtful. The order was predicated
upon the best interests of Evan
and designed to facilitate Evan's
desires to visit with his father
on equal terms --voluntarily, gradually,
and without manipulation. Importantly,
the parenting time and visitation
order also provided the last, best
hope that David would abandon his
"hostile and litigious proclivities,"
See Ex parte Hipple, 124 Kan. 3,
4, 256 Pac. 1015 (1927), obtain
essential therapy, and dedicate
his efforts to the very personal
and difficult process of reconciliation
with his son.
I would affirm.