Santaniello v. Santaniello
| Decision Date | 11 December 1992 |
| Docket Number | No. 68011,68011 |
| Citation | 18 Kan.App.2d 112,850 P.2d 269 |
| Parties | Pasquale SANTANIELLO and Jennie Santaniello, Appellees, v. Cheryl SANTANIELLO, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Grandparent visitation should only be ordered if visitation is found to be in the child's best interests and there is a substantial grandparent-grandchild relationship in place. Both of these findings must be made by the district court before visitation may be granted. K.S.A. 38-129(a).
2. A court may not presume that grandparent visitation is in a child's best interests or that a substantial grandparent-grandchild relationship exists. The burden of proof is upon the grandparents to show such visitation is in the child's best interests. Spradling v. Harris, 13 Kan.App.2d 595, 596, 778 P.2d 365, rev. denied, 245 Kan. 786 (1989).
3. Under the facts of this case, the district court erred in shifting the burden of proof to the parent to show that granting the grandparents visitation would not be in the child's best interests.
Ronald W. Nelson, Overland Park, for appellant.
Nancy M. Caviar, of Berkowitz and Cook, Kansas City, MO, for appellees.
Before BRAZIL, P.J., LARSON, J., and BILL D. ROBINSON, Jr., District Judge, assigned.
Cheryl Santaniello (Cheryl) appeals the granting of grandparent visitation pursuant to K.S.A. 38-129 to Pasquale and Jennie Santaniello (the Santaniellos), claiming there was not substantial evidence to support the court's finding and the court erred in not granting Cheryl attorney fees. We reverse and remand with directions.
There was little or no sworn testimony introduced at the hearing. The following facts, which are not in dispute, were garnered from statements of counsel at the hearing and as presented in counsels' briefs.
In early 1983, Cheryl and the Santaniellos' adult son, Gary, began living together in New York. Soon after, Cheryl became pregnant and a daughter was born. At the time of the birth, the two couples occupied and jointly owned the same house, although Gary and Cheryl only lived in the same house with the Santaniellos for two periods of approximately eight months each during the years 1984 to 1986.
Conflicts arose between Gary and Cheryl and the Santaniellos. Gary suffered from a heart condition and was often required to go into the hospital for surgery and heart treatment. Disputes arose between the families each time Gary went into the hospital; consequently, Cheryl would move in with her mother and sister during Gary's hospital stays.
Gary and Cheryl purchased their own home in 1986. Shortly after, Gary and Cheryl's second daughter was born. Gary Santaniello died in 1988.
After Gary's death, because of financial strain and the fact that some of her close family lived in Kansas, Cheryl moved her family from New York to Kansas. They have since resided in Johnson County, Kansas, with Cheryl's mother and sister.
There was evidence that the Santaniellos saw their grandchildren periodically until shortly after their father's death. There had been no visitation from shortly after the father's death to the date the petition was filed. The reason for the grandparents' lack of contact with the grandchildren was a result of a combination of factors, including distance, financial constraints upon Cheryl, and the fact that, whenever the children were around the Santaniellos, the grandmother would talk incessantly about Gary's death. When Cheryl left New York, she did not leave a forwarding address or telephone number with the Santaniellos. However, the Santaniellos' other children had that information.
Cheryl first contends the trial court erred in presuming that visitation was in the best interests of the children and further presuming there was a substantial relationship between the Santaniellos and the grandchildren. We agree.
K.S.A. 38-129(a) provides:
"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."
It is clear that grandparent visitation should only be ordered if visitation is found to be in the child's best interests and there is a substantial grandparent-grandchild relationship in place. In re Adoption of J.M.U., 16 Kan.App.2d 164, 167, 819 P.2d 1244, rev. denied, 250 Kan. 805 (1991); Spradling v. Harris, 13 Kan.App.2d 595, 599, 778 P.2d 365, rev. denied, 245 Kan. 786 (1989). It is obvious that both findings must be made by ...
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