Carty v. Martin

• Decision Date: 26 March 1983
• Docket Number: No. 53819,53819
• Citation: 660 P.2d 540,233 Kan. 7
• Parties: Vendal CARTY, Appellee, v. Kimberly Kelly MARTIN, Appellant.
• Court: Kansas Supreme Court

Page 540

660 P.2d 540

233 Kan. 7

Vendal CARTY, Appellee, v. Kimberly Kelly MARTIN, Appellant.

No. 53819.

Supreme Court of Kansas.

March 26, 1983.

Syllabus by the Court

1. Kansas has traditionally offered two methods of legally determining the paternity of an illegitimate child: (1) A statutory action brought by the mother, K.S.A. 38-1101 et seq., and (2) a nonstatutory action brought in the name of the child. Doughty v. Engler, 112 Kan. 583, 211 P. 619 (1923).

2. Once paternity of an illegitimate child is established, whether by adjudication or acknowledgement, the unwed father, absent unfitness and subject to the best interests of the child, has a right to visitation with respect to that child.

3. Issues regarding custody and control of children and child support are addressed to the sound discretion of the trial court.

4. In an action to establish paternity and visitation rights with respect to an illegitimate child it is held the trial court did not err in (1) granting visitation privileges to the father, and (2) making an award of child support.

Richard White, Legal Intern, argued the cause and James J. O'Malley, Cindy L. Whitton, Legal Interns, Christine A. Long and Karen Borell, Supervising Attys., Douglas County Legal Aid Soc., Inc., Lawrence, were with him on the brief for appellant.

E. Roger Horsky, Leavenworth, argued the cause and was on the brief for appellee.

HERD, Justice:

This is an action in which an unwed father seeks an adjudication of paternity and enforcement of his right to visit his child. Kimberly Martin appeals from the trial court's order adjudicating Vendal Carty the father of her son, Adam Martin, granting Carty visitation rights and ordering him to pay $40 per month child support.

Vendal Carty and Kimberly Martin met in January of 1976. Carty was in the army stationed at Ft. Leavenworth. Ms. Martin was a student at Kansas University. He was age 29 and had been previously married with one child. She was age 17 and had never been married. The two became friends, then lovers, and during the fall of 1976 Ms. Martin became pregnant. When Ms. Martin discovered her pregnancy, she planned to drop out of college at the end of the semester and marry Carty. Her plans failed to materialize due to what she claims was Carty's reluctance. Carty contends it was the other way around. Nevertheless, Adam Martin was born out of wedlock in April of 1977. Carty refused to sign the birth certificate even though he acknowledged paternity. The medical expenses of the birth were paid by Ms. Martin's father's military benefits.

After the birth of Adam the parties continued to see each other irregularly. Carty, however, never paid child support. In June of 1978, Carty informed Ms. Martin he was going to marry another woman whom he had also gotten pregnant. The marriage occurred in July of 1978. In November of 1979, Mr. Carty was transferred to Texas where he was stationed for a few months. He returned to Kansas temporarily in February of 1980. While here he requested permission to see Adam but appellant refused.

In May of 1980, Carty returned to Kansas permanently. This time appellant agreed to permit Carty to visit their son on a regular basis during the summer. Before long the informal visitation arrangements fell through. On September 15, 1980, Mr. Carty filed this suit asking for a judicial determination of his paternity of Adam Martin and an order granting him custody or in the alternative visitation rights to the child. Ms. Martin responded to Carty's suit by stating she was without sufficient information to answer the paternity averment. She then alleged Carty failed to state a claim upon which relief could be granted and that he was guilty of laches. In the alternative she asked for support.

After a trial where the parties acknowledged Carty was the father of Adam Martin, the trial court concluded:

"The custody of the child should remain in the mother. The realities of this situation are that the plaintiff is clearly the father of the child, Adam, and has turned to the Courts only when the informal arrangements for visitation began to decay.

"The Kansas Legislature has not addressed the rights of a father under these circumstances, but in 1978 the Kansas Supreme Court in a case of first impression found the father of an illegitimate child had the right to reasonable visitation if it is in the best interests of the child. This visitation is not automatic and once granted may be withdrawn if the father uses it for vexatious purposes. The Court noted that while a putative father is no longer without parental rights under the law, there are valid factual differences between the father of an illegitimate child and a divorced father. Some of the factors to be considered regarding the issues of visitation are the duration and nature of the relationship between the father and mother, the interest shown by the father, the admission of paternity, support paid, and the emotional effect the visits would have on the child."

After an in-depth home study of the effect on the child of permitting visitation, the court granted Carty visitation rights and ordered him to pay $40 per month child support. This appeal followed.

Appellant argues the trial court's order was erroneous because Mr. Carty was without authority to bring an action to establish paternity.

Kansas has traditionally offered only two proceedings in which the paternity of an illegitimate child could be legally determined. The first is a statutory action available only to the mother. It was previously governed by the "bastardy" statute, K.S.A. 62-2301 (Corrick), and had to be brought in the name of the State of Kansas. Although it was a civil action it had features of a criminal prosecution. Effective July 1, 1970, the legislature repealed the bastardy statute and enacted the present statutes governing "paternity proceedings." K.S.A. 38-1101 et seq. The major changes in the new act were provisions limiting the cause of action to one year after the birth of the child (K.S.A. 38-1104) and the characterization of the proceedings as civil rather than criminal. See Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974).

The second proceeding is a nonstatutory action to determine paternity brought in the name of the child. The action, first recognized by this court in Doughty v. Engler, 112 Kan. 583, 585, 211 P. 619 (1923), is a chose vested in the child. Lawrence v Boyd, 207 Kan. 776, 486 P.2d 1394 (1971). The purpose of the nonstatutory action is to force the putative father to support the child. This action can be initiated on behalf of the child by a guardian or next friend and is not subject to a limitation on time for filing. Huss v. DeMott, 215 Kan. at 455, 524 P.2d 743.

As appellant correctly notes, there is no statutory or common-law action available to the putative father of an illegitimate child to have paternity adjudicated. Such a restriction on the father was acceptable when bastardy and illegitimacy were considered disgraceful, casting adverse reflections on all the concerned parties. However, the mores and folkways have changed. Illegitimacy is no longer considered a disgrace, with the unwed father often desirous of accepting paternal responsibilities. This change was reflected by the U.S. Supreme Court in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In Caban the court recognized a difference in maternal and paternal roles prior...