On Behalf of | Oct 10, 2023 | Family Law

S.D.II v. L.D., Docket No. 125,231, 2023 WL ______ (October 6, 2023.  Geary Dist. Ct.  J. Boehm—Affirmed in Part and Dismissed in Part).  An appellate court generally reviews a trial court’s order granting or denying a request to modify custody for an abuse of discretion.  State, ex rel. Secretary, DCF v. M.R.B., 313 Kan. 855, 861-62, 491 P. 3d 652 (2021); In re Marriage of Grippin, 39 Kan. App. 2d 1029, 1031, 186 P. 3d 852 (2008).  A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. The party asserting the abuse of discretion bears the burden of proving the error occurred.

In deciding whether the district court abused its discretion, the Court of Appeals reviews the evidence in the light most favorable to the prevailing party to determine if the district court’s factual findings are supported by substantial competent evidence and whether they support the court’s legal conclusions.  In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 704-5, 229 P. 3d 1187 (2010).   In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998).

Overall, the paramount consideration of the district court in deciding custody or residency is the best interests of the children.  Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). K.S.A. 23-3201.  K.S.A. 23-3218(a) allows a district court to change or modify any prior order of custody, residency, visitation, and parenting time, when a material change of circumstances is shown.  A twofold policy underlies the material change in circumstance rule. First, a reasonable degree of stability in a child’s important relationships contributes to the emotional, intellectual, and moral development of the child. Second, the court generally favors one-time adjudication of matters and opposes repetitive actions.   In re Marriage of Bahlmann, 56 Kan. App. 2d 901, 908, 440 P. 3d 597 (2019).

In this case, in changing custody from father to mother, the specific issues mother presented were: an unwillingness to coparent; leaving the children with a person of whom father did not approve; inability to communicate, cooperate, and manage parental duties with father, as demonstrated by her refusal to provide father an updated address; unilateral decision-making regarding the care and custody of the children; and a failure to cooperate with the father to find a custodian to whom both parents agreed.

This case is a short course on the necessary elements for proving grounds supporting a change of custody, complete with examples of what not to do if you are the parent resisting the change.