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How does the Kansas Supreme Court case of Schwarz v. Schwarz affect grandparent’s rights in Kansas?

Grandparent holding childs hand

K.S.A. 23-3301(a) allows for grandparent visitation rights in a pending divorce action, but also allows a separate and independent action for grandparent rights following the death of a parent. This is the same statute that allows for step-parent visitation as well, recognizing the important, meaningful relationships that children often develop with people in their lives, beyond solely their parents. K.S.A. 23-3301 requires that the visitation be in the best interests of the child or children involved and that the request for visitation only be made when a substantial relationship has already been established. In Kansas, the courts need to balance the rights of grandparents wishing to visit with their grandchildren, as opposed to the Due Process clause of the United States Constitution which affords fundamental rights and protections to parents to make decisions about the best interests and care, custody and control of their children. In cases of grandparent’s visitation, after making the above-referenced considerations, the court must presume that a parent who is fit is acting in their child’s best interests and must give weight/consideration to the parent’s desires and request for a parenting plan for the grandparents. If the court adopts a grandparent’s requested plan over that of a parent, the court has to make a finding that the parent’s plan for visitation/contact between a child and the grandparent(s) is unreasonable.

In the Schwarz case, the mother of two young boys appealed the trial court’s decision giving the paternal grandmother visitation rights. In this case, the mother and father were in the process of a divorce when the father suddenly died. The father’s death ended the marriage and the pending divorce action. Following the father’s death, the mother began providing limited contact to the paternal grandmother. The Court reviewed a previous holding from the Frost court in determining that K.S.A. 23-3303 shows a legislative policy to preserve grandparent rights and that they are not limited to divorce actions. In grandmother’s petition, she alleged that she had built a substantial relationship with the children, including through babysitting them and taking them on vacations. The grandmother indicated that she would defer to a reasonable schedule of visitation proposed by the mother but would request at least one weekend per month and a period of time over the summer or school breaks to be able to take a vacation and she requested to attend the children’s school and extracurricular activities to support them. The mother in the Schwarz case acknowledged the grandmother’s contacts with the children before the father’s death but she indicated that ongoing contact with the children was not in their best interests. She alleged that the grandmother had a pattern of not seeing the children for weeks or months at a time and had a history of saying or doing things around the children which were inappropriate. Mother asked the court to allow her to decide to what extent the grandmother should have visitation/contact with the children. The court held a hearing where it determined that grandmother was a fit person to have contact with the children and ordered the parties to attend mediation to determine an appropriate schedule of contact for the grandmother.

When the mediation was unsuccessful, the court appointed a guardian ad litem (GAL) to represent the children and make recommendations for the children. The GAL recommended a grandparent visitation plan that allowed family therapy between the grandmother and the children for as long as the therapist deemed necessary, as well as some daytime visits. Mother requested to be ordered to provide no parenting time to the grandmother but have deference to allow visitation/contact in the future. The court determined that the plan proposed by the GAL and the grandmother was reasonable and ordered it to be utilized by the parties. Mother appealed the case and pursued her request of no contact. In Schwarz, the court held that there are some circumstances that justify a parent denying visitation/contact to a grandparent however, the court determined that the mother’s position in this case was unreasonable. The Schwarz court held that while the district court gave deference to the mother’s position as a parent, it did not give absolute deference. The court found that mother’s proposed parenting plan (of essentially not enumerating a plan) was unreasonable. This court referred to the United States Supreme Court case of Troxel v. Granville, in saying that the burden of proving that the mother’s parenting plan was unreasonable was the grandmother’s burden and she had successfully done so.

In Schwarz, the Court held that consistent with the In re Cathey, holding at 38 Kan. App. 2d. 368, 376, 165 P.3d 310 (2007), a parent’s parenting plan for grandparent contact must be reasonable in light of the child’s best interests when considering the totality of the circumstances. The court found in Schwarz, that the mother’s position that her relationship with the grandmother could not be repaired was an unreasonable position. The court reviewed that a number of things that the mother complained about had not interfered with the grandmother seeing the children and having a close relationship with them prior to the father’s death. The court felt that the mother was not selectively using the grandmother’s behaviors against her as a basis to deny visits. The court found that the children were deprived of the relationship they had enjoyed with their grandmother before their father’s death and this was not in their best interests. In the Davis v. Heath case, 35 Kan. App. 2d 86, 94, 1128 P.3d434 (2006) the court held that a parent’s decision to arbitrarily cut off a grandparent’s visitation/contact with the children would be unreasonable. The court also found it was important that the children have an opportunity to continue their relationship with their entire paternal extended family.

The court recognized that mother’s plan for the children to have no contact whatsoever with the grandmother was not in their best interests. Likely, if the contact was terminated, the relationship between the mother and the grandmother would never be restored to allow the grandmother to have visitation. Under the circumstances, denying the children any access to the grandmother is not a reasonable and balanced response to the mistakes she did make and apologize for.

Are you a grandparent who needs to seek visitation or other contact with your grandchildren in Kansas? If so, reach out to us at Pingel Family Law to schedule a consultation at (816) 208-8130 to see how we may assist you with your case and situation. Being a grandparent is a great joy and you should not allow the opportunity to build and maintain a relationship with your grandchildren pass you by!