In re the Marriage Osborn

135 P.3d 199, 35 Kan. App. 2d 853, 2006 Kan. App. LEXIS 522
CourtCourt of Appeals of Kansas
DecidedJune 2, 2006
DocketNo. 95,015
StatusPublished
Cited by2 cases

This text of 135 P.3d 199 (In re the Marriage Osborn) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage Osborn, 135 P.3d 199, 35 Kan. App. 2d 853, 2006 Kan. App. LEXIS 522 (kanctapp 2006).

Opinion

Malone, J.:

C.M.O., the 11-year-old daughter of Laura Osborn, n/k/a Bertelsen, and David Osborn, filed a postjudgment motion to modify parenting time in her parents’ divorce case. The district court dismissed the motion on the ground that C.M.O. had no legal standing to file the motion. We affirm.

On January 3, 1997, Laura filed for divorce from David. There were two children of the marriage: C.R.O., born June 3,1992, and C.M.O., bom April 28,1994. A decree of divorce was entered April 18, 1997. The parties were awarded joint custody of the children, with Laura as the residential parent. The district court established a parenting plan to enable David’s visitation. Conflict immediately arose over the parenting plan, and the parties litigated the visitation issue several times over the ensuing years.

[854]*854In 2002, David was residing in Emporia and Laura was residing in Dodge City. At a hearing on June 3, 2002, the district court ordered that David’s summer parenting time with the children would begin the day after Memorial Day and end 1 week before the start of school. During the summer period, Laura would have the children for 1 full week of her choice and alternating weekends. Laura subsequently filed a motion to alter or amend the judgment, and the district court denied the motion and ordered Laura to pay $400 of David’s attorney fees. Laura filed a second motion to alter or amend tire judgment which was also denied.

On May 19, 2005, C.M.O., by and through her attorney, filed a motion to modify parenting time in her parents’ divorce case. C.M.O.’s appeal brief acknowledges that her attorney was employed by her mother and stepfather. C.M.O.’s motion sought modification of the summer parenting time schedule to enable C.M.O. to participate in certain sports and band programs in Dodge City. C.M.O. also filed a motion for an interview pursuant to K.S.A. 60-1614. David filed a motion to dismiss C.M.O.’s motions due to C.M.O.’s lack of standing. David also asserted C.M.O.’s motion was not verified, as required by K.S.A. 60-1628, and there had not been any changed circumstances which would require the court to modify the present parenting plan.

On June 16, 2005, the district court held a hearing on the motions. The district court noted the legislature had not provided for minor children to file their own motions regarding visitation. The district court indicated a guardian ad litem can file motions on behalf of children in certain situations. However, in the present case, the district court noted C.M.O. had made no allegation that her parents were unfit, and the district court specifically found both parents were fit and proper persons to have die care, custody, and control of their children. The district court found C.M.O. had no legal right at stake before the court. The district court dismissed C.M.O.’s motion to modify parenting time because she lacked standing to file the motion. The district court did not specifically address C.M.O.’s motion for an interview. C.M.O. timely appeals.

C.M.O. claims the district court erred in finding she had no standing to file a motion to modify parenting time in her parents’ [855]*855divorce case. C.M.O. maintains Kansas law does not restrict a minor cliild from filing a motion to alter or amend parenting time. C.M.O. states that K.S.A. 60-1610(a)(3)(B) provides that die desires of the child and the child’s adjustment to his or her home, school, and community should be considered when determining visitation; therefore, C.M.O.’s motion should have been heard by the court.

This is an issue of first impression in Kansas. Whether standing exists is a question of law providing an appellate court with unlimited review. In re Marriage of Brown, 279 Kan. 282, 287, 109 P.3d 1212 (2005).

Kansas courts are vested with continuing jurisdiction to modify custody and visitation orders. Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980). K.S.A. 60-1610(a)(2)(A) authorizes the court to “change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown.” K.S.A. 60-1616(c) provides that the court can modify parenting time “whenever modification would serve the best interests of the child.”

Kansas statutes authorize parenting time and visitation rights only to parents, grandparents, and stepparents. K.S.A. 60-1616. The Kansas Supreme Court has recognized that any expansion of the categories of individuals who have standing to seek visitation rights should originate with the legislature. In re Hood, 252 Kan. 689, Syl. ¶ 2, 847 P.2d 1300 (1993); see 2 Elrod and Buchele, Kansas Law and Practice, Kansas Family Law, § 13.33 (1999). There are no statutes which explicitly address whether a minor child has standing to file a motion to modify visitation or parenting time. K.S.A. 60-217(c) specifically restricts minors from appearing in court without a duly appointed representative, except by their next friend or a guardian ad litem.

We begin with the premise that only a party may file a motion in any civil action, unless specific leave to do so is granted by the court. C.M.O. is not a party to her parents’ divorce action. Because she is not a party to tire action, she lacks standing to challenge the terms of the court orders related to the decree of divorce. C.M.O. made no attempt to file a motion to intervene as a party pursuant [856]*856to K.S.A. 60-224. In the absence of an order allowing C.M.O. to intervene as a party, she had no standing to file a motion in the divorce case.

C.M.O. emphasizes that her motion should be heard so that her preferences can be considered in determining the parenting plan. However, there are other ways for C.M.O.’s wishes to be made known to the court. First and foremost, if one of C.M.O.’s parents determined that C.M.O.’s schedule and activities required a modification of parenting time, then the parent could file a motion in district court for the direct benefit of C.M.O. “Parents have a constitutionally protected right to determine how their children will be raised. See Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982).” Hood, 252 Kan. at 692. There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation. Kansas Dept. of SRS v. Paillet, 270 Kan.

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Bluebook (online)
135 P.3d 199, 35 Kan. App. 2d 853, 2006 Kan. App. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-osborn-kanctapp-2006.