Sheppard v. Sheppard

• Decision Date: 17 July 1981
• Docket Number: No. 52582,52582
• Citation: 630 P.2d 1121,230 Kan. 146
• Parties: Catherine S. SHEPPARD, Appellant, v. Steven H. SHEPPARD, Appellee.
• Court: Kansas Supreme Court

Page 1121

630 P.2d 1121

230 Kan. 146

Catherine S. SHEPPARD, Appellant, v. Steven H. SHEPPARD, Appellee.

No. 52582.

Supreme Court of Kansas.

July 17, 1981.

Syllabus by the Court

1. The test as to whether a statute comports with the due process clause is whether the legislative means selected has a real and substantial relation to the objective sought, or whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community.

2. The welfare of children is a matter of state concern.

3. A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal rights to custody.

4. K.S.A.1980 Supp. 60-1610(b )(2), which authorizes the courts to award the custody of minor children to third persons without a finding that the parents are unfit, is examined and is held to violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Randall E. Fisher, Wichita, argued the cause, and was on the brief for appellant.

Arnold M. Mize, Derby, argued the cause, and was on the brief for intervenors-appellees.

MILLER, Justice:

This appeal is from the trial court's resolution of a child custody dispute arising from a post-divorce motion to change permanent custody of a minor child, Patrick Sheppard. The mother, Catherine S. Sheppard, is the plaintiff and appellant. The maternal grandparents, Roy Sumner and Dorothy Sumner, to whom custody was granted, are the intervenors and appellees. The adoptive father, defendant Steven H. Sheppard, did not participate in the proceedings below and does not appear here. The controlling issue on appeal is the constitutionality of K.S.A.1980 Supp. 60-1610(b )(2), a new paragraph added to the statute in 1980.

Catherine is the natural mother of Patrick Sheppard, born on January 14, 1970. Catherine and Steven were married in 1974, and Steven adopted Patrick. Catherine and Steven were divorced in 1977, and Catherine was awarded the legal custody of Patrick. Before and during the marriage, both Catherine and Patrick lived with Catherine's parents, Mr. and Mrs. Sumner, at Haysville. After the divorce, Patrick remained with the Sumners in order that he might continue to attend the Haysville schools. Catherine, meanwhile, moved to Wichita.

K.S.A.1980 Supp. 60-1610(b )(2) became effective on May 17, 1980; Mr. and Mrs. Sumner filed a motion in the divorce case for change of custody one month later, June 18, 1980. The statute reads:

"(2) At any time after custody of any minor child has been awarded pursuant to a divorce, annulment or separate maintenance decree, any person who has had actual physical custody of any such child after such decree was rendered with the consent of the parent having legal custody, where applicable, may request by motion to the court rendering such decree that legal custody of such child or children be awarded to such person. Notwithstanding the parental preference doctrine the court may award custody of any such child to such person if the best interests of such child will be served thereby ; and, if the court determines that a parental relationship has been established between such child or children and the moving party. No motion may be made pursuant to this subsection, unless the movant has had actual physical custody of the child or children within six (6) months from the date of the motion. In determining the best interest of the child, the court shall consider all relevant factors, including but not limited to the following: (A) The length of time that any such child has been under the actual care and control of any person other than a parent and the circumstances relating thereto; (B) the desires of the child's parents as to custody; (C) the desires of the child as to the child's custodian; (D) the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests; (E) the child's adjustment to such child's home, school, and community; and (F) the mental and physical health and age of all individuals involved." (Emphasis supplied.)

The trial court, following a full evidentiary hearing on the grandparent's motion, found that Catherine is the natural mother of Patrick; that in the decree of divorce entered on August 17, 1977, Catherine was granted the custody of Patrick; that the intervenors, the Sumners, have had the actual physical custody of Patrick, with Catherine's consent, for a great period of time since the divorce; that the Sumners have developed a parental relationship with Patrick; that Catherine is not an unfit parent; that it is in the best interest of Patrick to be placed in the custody of the Sumners; and that K.S.A.1980 Supp. 60-1610(b )(2) does not violate the due process or equal protection clauses of the United States Constitution. The court then placed Patrick in the permanent custody of his grandparents, the Sumners, and granted biweekly visitation to Catherine. She appeals, contending first that the statute violates the due process clause and is therefore unconstitutional.

Throughout the years, Kansas courts have applied the parental fitness doctrine. The rule is succinctly stated in Christlieb v. Christlieb, 179 Kan. 408, 409, 295 P.2d 658 (1956):

"(A) parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them."

Many earlier cases which support the rule are there cited. Later cases stating and applying the rule are Trompeter v. Trompeter, 218 Kan. 535, 545 P.2d 297 (1975); In re Eden, 216 Kan. 784, 533 P.2d 1222 (1975); Herbst v. Herbst, 211 Kan. 163, 505 P.2d 294 (1973); Irwin v. Irwin, 211 Kan. 1, 505 P.2d 634 (1973); and McGuire v. McGuire, 190 Kan. 524, 376 P.2d 908 (1962).

K.S.A.1980 Supp. 60-1610(b )(2) abrogates the rule in certain limited circumstances. It makes the best interests rule applicable between parents and third persons. The best interests rule has heretofore been applicable only in child custody disputes between the parents. See Parish v. Parish, 220 Kan. 131, 132, 551 P.2d 792 (1976), where we said:

"In determining the right of custody of children between parents, the primary consideration is the best interest and welfare of the children, and all other issues are subordinate thereto."

And see also Hardenburger v. Hardenburger, 216 Kan. 322, 532 P.2d 1106 (1975).

Before we consider the specific challenge to the statute, we should state the basic principles which we must apply in determining the constitutionality of a statute. These principles were stated in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. PP 1-4, 598 P.2d 1051 (1979), as follows:

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution."

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done."

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt."

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject are wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere."

In State ex rel. Schneider v. Liggett, 223 Kan. 610, 614, 576 P.2d 221 (1978), we said that the test as to whether a statute comports with the due process clause is:

"whether the legislative means selected had a real and substantial relation to the objective sought. The rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community."

The statute here under consideration is a part of our divorce and alimony law, and relates to the care and custody of children of the marriage. The welfare of children is, of course, a matter of state concern. See State ex rel. O'Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 253, 607 P.2d 1102 (1980), appeal dismissed --- U.S. ----, 101 S.Ct. 47, 66 L.Ed.2d 6, and Lennon v. State, 193 Kan. 685, 396 P.2d 290 (1964).

Appellant contends that K.S.A.1980 Supp. 60-1610 (b )(2) violates the due process clause because it destroys the parental preference doctrine and allows a third party to take custody of a minor child even though the natural parent is fit. That is the situation before us: the court found the mother fit, but granted custody of the child to the grandparents, finding that such custody would be in the best interests of the child.

The reason for the parental preference doctrine is well stated by Justice Dawson in In re Kailer, 123 Kan. 229, 230, 231, 255 P. 41 (1927):

"(I)t is urged that the welfare and best interests of the children were the paramount issue. Under the law of the land the welfare and best interests of children are...