Kansas has a grandparent visitation statute, K.S.A. 38-129(a), which govern vistation between a grandparent and their grandchildren. The statute states that the court may award visitation to grandparents if the court find there is; (1) a substantial relationship between grandparent and the grandchild; and (2) the visitation is in the best interest of the minor child. The burden of proving both required elements is for the party seeking visitation. It is not sufficient that the court find only one of the criteria exists.
A recenet case, In the Interest of T.A., handed down on December 31, 2001, declared that in the situation where the father committed suicide, the paternal grandparents could have reasonable visitation rights upon a showing that; visitation was in the best interest of the child; and a substantial relationship between the child and the grandparents had been established. The court went on to say that, absent a finding of unreasonableness, the trial court should adopt a grandparent visitaiton plan proposed by the court.
In Kansas, if the two elements of K.S.A. 38-129 are met, the court should still give deference to the decision of a fit parent as to what visitation schedule the grandparent should receive. Under a case I argued in the Kansas Supreme Court, Kansas Dept. of
SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962
(2001), which interpreted Troxel v.
Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), A parent is entitled to a presumption that a fit parent will act in the best interests
of her child and that presumption must be given special weight. Of course, the court added the reasonableness standard in, In the Interest of T.A, which of course leaves open the interpetation of what is reasonable.
It has been established through a long line of cases that parents have a constitutional right to decide how their children will be raised and also have a right to control their children and to decide the persons who may have access to the child. However, in my own practice, I have seen judges use this reasonable standard to impose a visitation schedule on fit parents. Even when the fit parent has determined that they do not believe it would be in the child's best interest to have visitation.
I certainly welcome any comments you may have.