Hood, In re

• Decision Date: 26 December 1987
• Citation: 847 P.2d 1300,252 Kan. 689
• Parties: In re Senator J. Christopher HOOD, a Minor, d.o.b
• Court: Kansas Supreme Court

Page 1300

847 P.2d 1300

252 Kan. 689

In re Senator J. Christopher HOOD, a Minor, d.o.b. December 26, 1987.

No. 68311.

Supreme Court of Kansas.

March 5, 1993.

Syllabus by the Court

1. K.S.A. 38-129, the grandparent visitation statute, does not grant standing to an unrelated third party who claims to be "grandparent like."

2. The legislature has recognized visitation for grandparents and stepparents. The legislature is the forum to entertain sociological and policy considerations bearing on the well-being of children. Any expansion of the categories of individuals who have standing to claim visitation rights ought to originate with the legislature. We do not judicially recognize a new common-law right of third-party visitation.

Juanita M. Carlson, Lawrence, argued the cause and was on the brief, for appellant.

Brian J. Shultz, Lawrence, argued the cause, and Scott C. Rask, Lawrence, was with him on the brief, for appellee.

SIX, Justice:

This is a family law first-impression case concerning a claim of visitation rights by an unrelated third party. Dianne Hofmann appeals the dismissal of her petition to allow visitation with a four-year-old minor, Senator J. Christopher Hood. Dianne asserts standing under the grandparent visitation statute, K.S.A. 38-129. She also advocates the creation of a common-law right of visitation for third parties when two conditions are met: (1) Visitation is in the child's best interests, and (2) there has been a substantial relationship between the child and the third party seeking visitation. Dianne is not related to Christopher by blood or marriage. She is not a grandparent. She was Christopher's day care provider. Dianne seeks a court order enforcing visitation with Christopher against the wishes of Christopher's mother. The trial court granted the mother's motion to dismiss.

Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals upon our own motion).

Our scope of review limits the area we may question when a motion to dismiss has been granted. See Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992). In the case at bar, we look to the well-pleaded facts of Dianne's petition. We assume that (1) visitation with Dianne would be in Christopher's best interests and (2) a substantial relationship exists between Christopher and Dianne.

Our standard of review, i.e., the legal scale we use in weighing the sufficiency of her claim, is unlimited when we are reviewing a conclusion of law. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). (We note that neither party complied with Supreme Court Rules 6.02 or 6.03 [1992 Kan.Ct.R.Annot. 25, 26], concerning citation to the record in briefs.)

We find no error and affirm.

Dianne's Contentions

K.S.A. 38-129 provides:

"(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established."

Dianne alleges: (1) Christopher is an unmarried minor; (2) visitation with Dianne would be in Christopher's best interests; (3) there is a substantial relationship between Christopher and Dianne; (4) the "grandparent like" relationship is based on the fact that Christopher is a half brother to Dianne's grandson, Johnnie (Rhonda, Christopher's mother, is also Johnnie's mother. Dianne's son, who is Johnnie's father, was once married to Rhonda). In the alternative, Dianne alleges that the action is an original one based on a common-law right of visitation between a minor and a third party. She argues that this common-law right is supported by statutes and case law from other states and on the fact that in Kansas, interested third parties are notified of a child in need of care (CINC) action.

Rhonda's motion to dismiss asserted (1) Dianne is not a grandparent and (2) Dianne has conceded that Kansas does not recognize a common-law third-party visitation right. The trial court was unwilling to either extend the term "grandparent" in K.S.A. 38-129 to include "grandparent like" or to recognize a common-law right of visitation.

Creation of a Common-Law Right

Dianne asserts that other jurisdictions have allowed third-party visitation with minor children. Specifically, she argues that grandparents have been allowed to assert an independent visitation claim. She relies on Roberts v. Ward, 126 N.H. 388, 493 A.2d 478 (1985). In Ward, the New Hampshire Supreme Court reasoned that the legislature authorized grandparent visitation rights in marital dissolution cases involving the traditional two-parent family; consequently, it made little sense not to recognize a similar right in a nontraditional family. The Ward court used its parens patriae power to decide whether visitation with grandparents, to whom close personal attachments had been made, would be in the best interests of the child. 126 N.H. at 391-93, 493 A.2d 478. Ward cannot be read as a justification for the invocation of our parens patriae power to grant relief to Dianne, who is not a grandparent. Dianne has not cited any case factually similar to the case at bar that supports her claim. Our independent research has failed to locate such a case.

As one author explained:

"Courts can only assert themselves if a parent:

asks for determination of paternity;

wants to end the marriage;

dies; or

has abused, neglected, or endangered the child.

"There is no mechanism for a third party to intervene in the relationships of an intact family that has not subjected itself to judicial intervention or failed society's minimal requirements for adequate parenting." Morris, Grandparents, Uncles, Aunts, Cousins, Friends: How is the court to decide which relationships will continue?, 12 Family Advocate 11 (Fall 1989).

Dianne next argues that stepparent case law from other jurisdictions advances her contentions in support of visitation. Dianne's argument erodes her claim. K.S.A.1992 Supp. 60-1616(b) gives a trial court discretion to grant stepparents, as well as grandparents, visitation rights in connection with a divorce action. The cases cited by Dianne all deal with a situation in which a stepparent sought visitation in connection with either a divorce or the death of a biological parent. In fact, in Collins v. Gilbreath, 403 N.E.2d 921 (Ind.App.1980) the court limited its holding: "Nor do we intend to open the door and permit the granting of visitation rights to a myriad of unrelated third persons, including grandparents, who happen to feel affection for a child." 403 N.E.2d at 923-24.

Dianne concludes by asserting that a decisional trend is developing which allows some form of third-party visitation....