Marriage of Ross, Matter of

• Decision Date: 29 November 1989
• Docket Number: No. 62522,62522
• Parties: In the Matter of the MARRIAGE OF Sylvia K. ROSS, Appellee, and Robert Lewis Ross, Appellant, R.A.R., a minor child, By and Through his Guardian ad Litem, Appellee, v. Charles Allan AUSTIN, Appellant.
• Court: Kansas Supreme Court

Page 331

783 P.2d 331

245 Kan. 591

In the Matter of the MARRIAGE OF Sylvia K. ROSS, Appellee,

and

Robert Lewis Ross, Appellant, R.A.R., a minor child, By and Through his Guardian ad Litem, Appellee, v. Charles Allan AUSTIN, Appellant.

No. 62522.

Supreme Court of Kansas.

Nov. 29, 1989.

As Modified Jan. 12, 1990.

Syllabus by the Court

1. The stated purpose of the Kansas Parentage Act is to ensure that the legal obligations, rights, privileges, duties, and obligations incident to the mother/child relationship and the father/child relationship are carried out. K.S.A. 38-1111.

2. Public policy requires courts to act in the best interests of the child when determining the legal obligations to be imposed and the rights to be conferred in the mother/child relationship and the father/child relationship.

3. In an action to determine paternity, K.S.A. 38-1125(b) indicates when a guardian ad litem shall be appointed to insure that the child's interests are protected. The duties of the guardian ad litem are to make an independent investigation of the facts upon which the petition is based and to appear for and represent the best interests of the child.

4. When a marital relationship has been terminated, children of the marriage need for the court to provide stability in their lives, to acknowledge that their perception of time is different from that of an adult, and to take into consideration their past relationship with their parents.

5. Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child, including physical, mental, and emotional needs. The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child.

6. The mere filing of a paternity action does not automatically imply that the action is in the child's best interests. A court must reach this conclusion independently based on the facts in the record.

N. Trip Shawver, Wichita, argued the cause and was on the briefs for appellant Robert Lewis Ross.

Peter C. Hagan, of Helsel, Hagan & Macias, Wichita, argued the cause and was on the briefs for appellant Charles Allan Austin.

Peter John Orsi, II, Wichita, argued the cause and was on the brief for appellee Sylvia K. Ross.

Lois A. Lynn, guardian ad litem, Wichita, argued the cause and was on the brief for appellee R.A.R.

LOCKETT, Justice:

Robert Lewis Ross and Charles Allan Austin appealed the district court's determination under the Kansas Parentage Act, K.S.A. 38-1110 et seq., that Charles is the biological father of R.A.R., a minor child born November 6, 1982, during the marriage of Sylvia K. Ross and Robert. The Court of Appeals affirmed the judgment of the district court, holding that: (1) an evidentiary hearing on the best interests of the child need not precede a paternity determination (2) the guardian ad litem was not equitably estopped from denying Robert's paternity; (3) the divorce decree did not render the claim of parentage res judicata; (4) the doctrines of equitable adoption, equitable parenthood, and adoption by estoppel are not followed in Kansas; and (5) the district court did not err by admitting blood test evidence pursuant to K.S.A. 38-1118. In re Marriage of O'Brien, 13 Kan.App.2d 402, 772 P.2d 278 (1989). Robert filed a petition for review, which this court granted.

We agree with holdings (2)-(5) and affirm the Court of Appeals' judgment in that regard, without repeating the bases for those holdings in this opinion. See 13 Kan.App.2d at 407-10. We reverse with regard to holding (1) and explain our disagreement.

The facts are quoted from the Court of Appeals' opinion in this case:

"In January of 1984, Sylvia sued Robert for divorce, alleging him to be the father of R.A.R. The divorce decree awarded custody of R.A.R. to Sylvia, granted Robert visitation rights, and ordered payment of child support. Robert subsequently obtained joint custody of R.A.R. in November of 1985.

"In August of 1987, Sylvia, pursuant to the Kansas Parentage Act (K.S.A. 38-1110 et seq.), filed a petition alleging Charles is the biological parent of R.A.R. Contemporaneous with this filing, Sylvia asked for the appointment of a guardian ad litem for R.A.R. and requested that all parties be compelled to submit to blood testing. Lois A. Lynn was subsequently appointed guardian ad litem.

"Charles and Robert moved to strike Sylvia's petition on the theory of res judicata and equitable estoppel. In September of 1987, the guardian ad litem filed a separate paternity action on the basis of Sylvia's affidavit and also filed a motion for blood testing.

"On October 19, 1987, the trial court dismissed Sylvia's action but directed the guardian ad litem to proceed. The court, without an evidentiary hearing, sustained the guardian ad litem's motion for blood testing.

"A hearing was held on April 28, 1988, on the guardian ad litem's petition for paternity determination. Charles' motion to dismiss the paternity action for failure of the court to determine the best interests of the child was denied. The trial court stated it had previously been determined it was in R.A.R.'s best interests for his biological father to be determined.

"The trial court limited the testimony to the determination of biological parentage of R.A.R. and would not permit Robert or Charles to introduce evidence relating to R.A.R.'s best interests.

"The results of the blood test were admitted into evidence over Robert's and Charles' objections. Sylvia admitted that near the conception time of R.A.R. she had engaged in sexual intercourse with both Robert and Charles. When R.A.R. was born, Sylvia decided that Robert was the father.

"Sylvia stated she began to suspect Charles was the biological father due to physical characteristics of R.A.R. when he reached the age of three and one-half years. Sylvia then informed both Robert and Charles of the possibility that Charles was the father. Robert continued to care for the child in the joint custody arrangement and paid R.A.R.'s child care expenses.

"Sylvia testified she had asked Charles whether he would be willing to consent to the adoption of R.A.R. by Sylvia's present husband if Charles were determined to be the biological father.

"Charles was determined by clear and convincing evidence to be the biological father of R.A.R. The possibility of Robert being the biological father of R.A.R. was precluded by the blood tests. Sylvia's motion regarding child support, custody, and visitation was continued, with visitation between Robert and R.A.R. ordered to remain unchanged.

"In May of 1988, after hearing statements and arguments from counsel, the court granted Sylvia's motion for child support to be paid by Charles; denied Charles' motion to pay part of the support to Robert; denied Sylvia's motion for cessation of visitation between R.A.R. and Robert; found Robert stands in loco parentis; and maintained the joint custody between Robert and Sylvia over Sylvia's objection." 13 Kan.App.2d at 403-04.

In its opinion, the Court of Appeals quoted the relevant provisions of the Kansas Parentage Act.

K.S.A. 38-1115 provides:

"(a) A child whose paternity has not been determined, or any person on behalf of such a child, may bring an action:

"(1) At any time to determine the existence of a father and child relationship presumed under K.S.A. 38-1114 or

"(2) at any time until three years after the child reaches the age of majority to determine the existence of a father and child relationship which is not presumed under K.S.A. 38-1114."

K.S.A. 38-1114 provides:

"Presumption of paternity. (a) A man is presumed to be the father of a child if:

"(1) He and the child's mother are, or have been, married to each other and the child is born during the marriage....

....

"(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man."

When construing the Act, we recognize that it is the intent of the legislature that governs; the court must give effect to the legislature's intent even though words, phrases or clauses at some place in the statute must be omitted or inserted. In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).

The Kansas Parentage Act sets out numerous presumptions of paternity which apply to Robert. The child was born during the marriage; Robert had acknowledged his paternity of the child in writing; with his consent, he was named as the father on the child's birth certificate; he willingly became obligated to support the child in the divorce decree; and he notoriously and in writing recognized his paternity of the child to the district court. K.S.A. 38-1114. There was little else Robert could have done to acknowledge to the rest of the world that he was the father of the child and that he was willing to support the child.

The stated purpose of the Act is to ensure that the legal obligations, rights,...