No. 114,756
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
LINUS L. BAKER and AUSTIN BANKS,
(TERRI BAKER, RICK BANKS, and BRENDA BANKS),
Appellants,
v.
RYAN MCCORMICK,
Appellee.
SYLLABUS BY THE COURT
1.
The Kansas Protection from Abuse Act allows an adult "residing with a minor
child" to seek orders of protection on behalf of that child. K.S.A. 2015 Supp. 60-3104(b).
As a general rule, if the child is residing with that adult as of the filing date of the action,
the district court has proper jurisdiction to consider the claim.
2.
Where a child has resided with an adult nonparent for some period of time before
the filing of a Protection from Abuse Act claim and the child leaves that adult's residence
after the action is filed and before a hearing is held, the court does not lose jurisdiction to
consider the claim.
3.
Claims for grandparent-visitation rights may not be made in a Protection from
Abuse Act case.
4.
On the facts of this case, the district court did not err when it determined that the
plaintiffs had not demonstrated abuse with respect to one of the children.
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed July 29, 2016.
Affirmed in part, reversed in part, and remanded with directions.
Linus L. Baker, Terri Baker, Austin Banks, Rick Banks, and Brenda Banks, appellants pro se.
No appearance by appellee.
Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.
LEBEN, J.: The Kansas Protection from Abuse Act allows individuals to request
court orders to protect victims of domestic violence. These proceedings—called "PFA"
(Protection from Abuse) cases by judges and lawyers—must be heard quickly: a Kansas
court can issue temporary orders for a limited time period but must hear the case within
21 days of filing unless the court approves a delay. Sadly, but also importantly, PFA
cases are heard every day in the courts of Kansas.
The case now before us presents two legal questions that are specific to PFA
cases. First, the Protection from Abuse Act allows either a parent or "an adult residing
with a minor child" to seek protection orders on behalf of that child. K.S.A. 2015 Supp.
60-3104(b). In our case, a grandparent filed an action on behalf of two children while the
children and their mother were living with the grandparent—but the mother disagreed
with the filing and then moved out, taking the children with her. We must decide whether
"an adult residing with a minor child" at the time of the filing can continue the action
even if the child moves out of the adult's home before the hearing is held. Second, after
the mother and children moved out—but before the PFA hearing—the grandparent
brought a motion asking the court to order grandparent-visitation rights. Nothing in the
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Protection from Abuse Act talks about grandparent visitation; we must decide whether
such rights may be awarded in a PFA case.
We approach these questions with two important contextual guides. First, the
Protection from Abuse Act tells us that its provisions "shall be liberally construed to
promote the protection of victims of domestic violence . . . and to facilitate access to
judicial protection for the victims." K.S.A. 60-3101(b). Second, each PFA case comes to
the court with its own unique factual setting. We will summarize the factual setting of
this case in the next section of our opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The people whose rights are at the center of these proceedings are Charlie Banks,
a 3-year-old girl at the time the PFA case was filed, and Sylas McCormick, then a 10-
month-old boy. They are the children of Maggie McCormick and the grandchildren of
Maggie's parents, Linus and Terri Baker. Also important to this story are the fathers of
the two children, Austin Banks and Ryan McCormick, and the paternal grandparents of
Charlie, Rick and Brenda Banks.
The PFA action now before us on appeal was filed on September 24, 2015, by
Linus Baker and Austin Banks, as plaintiffs, against Ryan McCormick, the defendant.
Linus and Austin filed a joint petition on behalf of Charlie and Sylas, alleging that Ryan
had physically and verbally abused Maggie and had placed the children in fear of
imminent bodily injury; as a result, Linus and Austin asked that orders of protection be
entered against Ryan and to protect Charlie and Sylas.
Within days of the filing of the action, Maggie and her children moved out of her
parents' home and went to live with Maggie's sister. In addition, before a hearing was
held, Linus and Terri Baker filed a motion asking that the court provide specific times for
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them, as grandparents, to visit with Charlie and Sylas. Rick and Brenda Banks filed a
similar motion for visitation with Charlie.
The court held an evidentiary hearing on the petition on November 5, 2015. (The
hearing took place more than 21 days after filing, apparently to allow additional time for
the sheriff's office in Wyandotte County to locate and serve Ryan McCormick with the
petition and notice of the hearing.) Ryan McCormick filed a written answer but did not
attend the hearing; Linus Baker presented his own testimony along with testimony from
Terri Baker, Maggie, and Austin.
The evidence demonstrated that Ryan had committed significant acts of abuse
against Maggie, often with one or both children present. Photos admitted into evidence
showed Maggie bloodied and bruised. One set of events took place on August 20, 2015,
when Maggie tried to keep Ryan from driving while intoxicated. He pushed Maggie to
the ground, causing a nosebleed. Ryan later pushed Maggie hard into a mirror, leaving
the mirror broken and Maggie bleeding. (Austin testified that Charlie had told him about
the mirror incident.) Ryan then threatened to kill himself while holding a knife to his
stomach; Maggie said Charlie had heard these confrontations from another room. Maggie
and her parents testified to many other incidents of abuse. On one occasion, Ryan pushed
Maggie to the ground while she was holding Sylas, who bumped his head.
The evidence also showed that Maggie had left and then returned to Ryan more
than once. After the August 20, 2015, incident, Maggie filed a petition for divorce and a
PFA action, but she dismissed both in mid-September. It was after she dismissed those
actions that Linus Baker and Austin Banks filed the PFA case now before us.
At the time this PFA case was filed, Maggie and her children were living with her
parents. Maggie testified that she had moved out of her parents' house and gone to live
with her sister on October 7, 2015; she said she had moved out because she had been mad
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at her parents for interfering in the situation by filing the PFA case. Terri testified that
Maggie and the children had initially moved in with Linus and Terri after a December
2014 domestic-violence incident but that Maggie had moved back to live with Ryan in
May 2015. She moved back to her parents' home after the violence on August 20, 2015,
and stayed until October 7.
The district court separately considered the claims of plaintiff Linus Baker, of
plaintiff Austin Banks, and of the grandparents for visitation. The court also noted that
Maggie was not a plaintiff in the action, having dismissed her own PFA case against
Ryan.
As to Linus, the court apparently misunderstood part of the evidence about when
Maggie and the children had lived with her parents. The court said that Maggie had
disputed whether she lived with her parents at the time the petition was filed and cited
testimony from Terri that Maggie had moved out in May 2015, well before Linus filed
the PFA case in September. Based on that understanding of the testimony, the court said
that Linus was not authorized to bring an action on behalf of the children because they
did not reside with him as of the time the action was filed.
We can understand how the trial judge made this error. We have the benefit of a
transcript; he heard the testimony once orally. At trial, Maggie said that one item in her
written statement from September 2015—that Sylas lived with Linus and Terri—wasn't
correct. But she was apparently indicating only that this was no longer true as of the
November 5 hearing date. Maggie went on to agree in response to Linus' questions that
she was residing with her parents in September 2015 because of Ryan's abuse, that she
was residing there at the time Linus filed the PFA action, and that she moved out on
October 7 because her parents had interfered in her affairs by filing the case. And while
Terri did say that Maggie had moved out in May 2015 and returned to Ryan, she also said
that the reconciliation "lasted maybe two months" before Maggie "came back for about
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two weeks" and then moved to her sister's house. The evidence is clear that Maggie,
Charlie, and Sylas were living with Linus and Terri Baker when the PFA action was filed
but that they moved out on October 7, before the hearing held November 5, 2015. We
will discuss the legal effect of that move in the next section of our opinion.
As to Austin, the court ruled that he had not met his burden to prove that Ryan had
abused Charlie, Austin's daughter. The court noted that Maggie had not sought a
protection order. Based on the lack of evidence of abuse against Charlie, the court
declined to enter any orders of protection.
As to the grandparent-visitation issue, the court determined that such a request
was not appropriate within a PFA case, especially since the child's mother, Maggie, was
not a party. The court noted that parents have a fundamental constitutional right to make
decisions regarding the care and custody of their children.
Linus, Austin, and all the grandparents have appealed these decisions to our court.
They have filed an appellate brief; Ryan, who filed an answer but did not attend the
district court hearing, did not file an appellate brief.
ANALYSIS
Our court must address three issues in this appeal. We noted two legal issues
involving the Protection from Abuse Act at the beginning of the opinion: First, while an
adult residing with a child can bring a PFA petition, can the PFA claim continue if the
child no longer resides with that adult when the claim is heard? Second, can grandparents
bring a claim for grandparent-visitation rights in a PFA proceeding? The third issue on
appeal presents no novel legal issue: Austin and Linus simply argue that the district court
got it wrong when it held that they had failed to prove that Ryan had abused Charlie. We
will look at each of these issues in that order.
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Before we do that, we would note that the joint appellate brief filed by Linus and
Austin mentions only Sylas in its discussion of the first issue (whether Linus could bring
a PFA action on Sylas' behalf). Elsewhere, however, the brief notes that Linus and Austin
jointly filed the petition and jointly sought a protection order for Charlie as well. We have
treated both children the same in our discussion of the first issue because the petition,
filed jointly by Linus and Austin, sought relief on behalf of both children, and both
children lived in the Baker home for the same time periods. Thus, Linus' ability to pursue
a PFA action is at issue with respect to both children; we see no distinction between the
legal status of Linus to bring a PFA action on behalf of one child as opposed to the other.
I. The Court Erred When It Determined That the Minor Children Were Not Residing with
Linus When He Filed the Action.
When the right to make a claim comes from a statute, a court's subject-matter
jurisdiction to consider the claim depends on meeting the terms set out in the statute.
Whether a court has jurisdiction is a question of law, and we must review that question
independently, without any required deference to the district court. See Kingsley v.
Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Here, the question
will be determined by the Protection from Abuse Act. Interpretation of a statute also
presents a legal question that we review independently. Ullery v. Othick, 304 Kan. 405,
408, ___ P.3d ___, 2016 WL 1728774, at *3 (2016).
K.S.A. 2015 Supp. 60-3104(b) allows "an adult residing with a minor child" to file
a petition on a minor child's behalf under the Protection from Abuse Act. The Act doesn't
provide a definition of "residing with," and a number of alternative meanings might be
available. As one court has noted, a related term, "residence," "is not a term of fixed legal
definition but takes on shades of meaning according to the context in which it is found."
District of Columbia v. H.J.B., 359 A.2d 285, 290 (D.C. App. 1976). Another court
7
agreed, noting that while residence usually indicates a person's place of domicile, context
is important, and a residence can also be quite temporary: "Sometimes it implies the place
where a man temporarily resides, where he transacts business for a brief period." Horton
v. Horner, 16 Ohio 145, 147, 1847 WL 24 (1847). Kansas statutes also recognize a
flexible meaning for residence, with different definitions for, among other things,
eligibility for appointment as a district judge, K.S.A. 20-331; eligibility for in-state
tuition at state universities, K.S.A. 2015 Supp. 76-729; eligibility to attend elementary or
secondary schools, K.S.A. 72-1046; and eligibility to vote, K.S.A. 25-407.
In addition to specific definitions found in statutes on specific subjects, the Kansas
statutes also contain some generic definition provisions that apply when terms aren't
otherwise defined; these generic provisions define the term "residence" but not the term
"resides." Under the generic definition, found in K.S.A. 2015 Supp. 77-201 Twenty-third,
"residence" means "the place which is adopted by a person as the person's place of
habitation and to which, whenever the person is absent, the person has the intention of
returning." But that definition isn't suited to the Protection from Abuse Act, which is to
be liberally construed to allow access to the courts to protect domestic-violence victims.
If we treated "residing with" consistent with K.S.A. 2015 Supp. 77-201 Twenty-third, a
child who had come to live for a year or even more with a nonparent (such as an aunt,
uncle, or grandparent) but planned to return to another more permanent residence would
not have access to the courts through the adult with whom the child was then living on an
extended basis in Kansas.
Like the noun "residence," the verb "resides" takes on meaning from context too.
The last edition of Black's Law Dictionary to define the term gave many options—"Live,
dwell, abide, sojourn, stay, remain, lodge"—and included concepts ranging from "to
dwell permanently or continuously" to "to be stationed" and "to remain or stay." Black's
Law Dictionary 1308 (6th ed. 1990).
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Our task differs from the lexicographer's. We need not attempt to determine the
meaning of "resides with" in every potential context—our job is to decide, on the facts of
the case now before us, whether Linus had the authority to file a PFA action on behalf of
his grandchildren because they resided with him at that time. On these facts, he did.
Maggie and her children had been living with Linus and Terri from shortly after the
domestic-violence incident of August 20, 2015, through the time Linus filed the PFA
case on September 24, 2015. In addition, Maggie and her children had lived at the Baker
residence from soon after the domestic-violence incident of December 2014 until May
2015, when Maggie decided to move back to Ryan's home. The facts we have noted are
undisputed on the evidence, and based on those facts, we conclude that the children
resided with Linus at the time he filed the PFA action, thus giving him the authority to do
so.
Having decided that question, we must answer one more: Did Linus' authority to
pursue the action end when Maggie and the children moved out and went to live with her
sister? Again, we focus on the background considerations of the Protection from Abuse
Act and its stated aim of making courts accessible for victims of domestic violence. In
such cases, there are many potential reasons why someone might change residences, even
several times, as individuals and families take precautions to be as safe as possible. The
Act itself recognizes this possibility by providing that "[t]he right of a person to obtain
relief under the protection from abuse act shall not be affected by the person's leaving the
residence or household to avoid further abuse." K.S.A. 2015 Supp. 60-3103.
In our case, however, that specific provision doesn't seem to apply—Maggie didn't
move with the children from her parents' home to her sister's "to avoid further abuse."
She did so in reaction to what she perceived as interference in her life through Linus'
filing of the PFA action itself.
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With that provision not directly applicable, we have no explicit guidance in the
Act about whether moving from the house of a nonparent the child is residing with after
that nonparent files a PFA action on the child's behalf eliminates the court's jurisdiction
over the case. Once again, though, we think that the Act's directive that we interpret its
provisions to facilitate access to judicial protection provides sufficient guidance. The goal
of the Act is to provide access to the court so that situations can be sorted out and
appropriate orders of protection entered. That goal would be thwarted if moves by
children while the action is pending—which could occur for any number of reasons—
took away the court's jurisdiction to hear the case. Where, as here, the children resided
with the adult who filed the action at the time of filing, that is sufficient to give the court
jurisdiction to preside over the case to its natural conclusion.
This result is in line with cases that have applied a time-of-filing rule to determine
a court's jurisdiction. Under that general rule, the court's jurisdiction is determined at the
time of filing, not by later events. Linus and Austin cite a case in which our court applied
the time-of-filing rule, In re Adoption of I.H.H.-L., 45 Kan. App. 2d 684, 251 P.3d 651,
rev. denied 292 Kan. 964 (2011). In that case, our court held that an adoption could not
proceed when the parties who filed it failed to meet the statutory criteria to file it on the
date they did so. 45 Kan. App. 2d at 690-91. Generally, when the court's jurisdiction
depends upon the ability of a person or party to bring suit, the capacity of that person to
do so is judged at the time of filing, Grupo Dataflux v. Atlas Global Group, L.P., 541
U.S. 567, 570-72, 574-77, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004), and later changes
do not deprive the court of jurisdiction. 541 U.S. at 583-84 (Ginsburg, J, dissenting); In
re Guardianship of Sokol, 40 Kan. App. 2d 57, Syl. ¶ 4, 189 P.3d 526 (2008). While there
are caselaw and statutory exceptions to the time-of-filing rule, see Grupo Dataflux, 541
U.S. at 572-74; Hill v. Kwan, 2009 ME 4, ¶¶ 10-11, 962 A.2d 963 (Me. 2009); K.S.A.
2015 Supp. 77-614(c), the time-of-filing rule generally supports our view that changes
taking place after filing shouldn't deprive the court of jurisdiction in a PFA case,
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especially since we are to interpret the Protection from Abuse Act liberally to provide
access to the courts to seek protection.
Even so, we recognize that the time-of-filing rule may not always be determinative
under the Act since the Act specifically provides that leaving a residence to avoid further
abuse doesn't eliminate a court's jurisdiction to hear the case. So if, for example, a child
resided with the adult who filed a PFA action on the child's behalf until the day before the
action was filed—but the child had moved to another location specifically to avoid
abuse—the court would still have jurisdiction over the proceeding. In that situation, the
legislature has provided for jurisdiction even though application of the typical time-of-
filing rule would not recognize it. But the general rule is the time-of-filing rule, and Linus
qualified under that rule.
In sum, the undisputed facts show that both children resided with Linus at the time
the petition was filed. That gave the district court proper jurisdiction to consider the
Protection from Abuse Act claims on their merits. The district court has not considered
the claims involving Sylas on their merits, so we return the case to the district court for
that purpose. As we discuss in the final section of our opinion, the district court did
review the evidence of abuse against Charlie and found no abuse. Because the court did
not indicate it had excluded any evidence from its consideration and we have found no
error in its determination on the merits of the claim involving Charlie, we remand only
the claim involving Sylas for further consideration.
Before we close this section of our opinion, we note that Maggie, the mother of
these children, was not a party to this action. While Linus correctly notes in his appellate
brief that a parent's views can still be presented even if the parent is a nonparty, there is
no indication in the hearing held here that Maggie was advised that she could give the
court her own views about the matters at issue rather than merely answering questions
asked by Linus. (Austin and Linus, the two plaintiffs, each represented themselves at the
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hearing, but Linus, who is a licensed attorney, called each witness and was the only
person to ask questions of them.) Parents have a constitutional right to make the basic
decisions involved in raising children, Troxel v. Granville, 530 U.S. 57, 66-68, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000); Harrison v. Tauheed, 292 Kan. 663, 678-79, 256 P.3d
851 (2011), so Maggie's views on any remedy would be entitled to consideration even if
the district court concludes that Ryan has abused Sylas.
II. The District Court Correctly Determined That an Action for Grandparent-Visitation
Rights Is Not Properly Before the Court in a PFA Case.
We turn next to the requests filed by two sets of grandparents for the district court
to set aside specific times for them to have "substantial grandparent visitation" with the
children. The district court determined that this was a matter not properly before the court
in a PFA case. The question is a legal one to be determined by interpreting the Protection
from Abuse Act; accordingly, we must consider the issue independently, without any
required deference to the district court's ruling. Ullery, 304 Kan. at 408.
We begin by considering the provisions of the Protection from Abuse Act. K.S.A.
2015 Supp. 60-3107 sets out the types of orders that a court may grant if it finds abuse.
Those orders include restraining orders, granting possession of a residence, ordering
support payments, and "[a]warding temporary custody and residency and establishing
temporary parenting time with regard to minor children." So the statute explicitly
provides for temporary custody awards, temporary residence orders, and temporary
parenting time—but it makes no mention of grandparent-visitation rights.
Even so, the grandparents argue that the court hearing a PFA case nonetheless
must allow grandparents to seek visitation orders in that action based on K.S.A. 2015
Supp. 23-3301(a) and a case interpreting that statute, In re T.N.Y., 51 Kan. App. 2d 956,
360 P.3d 433 (2015).
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K.S.A. 2015 Supp. 23-3301(a) provides no support to grandparents—at least as it
was enacted by the legislature. It states that grandparents and stepparents may be granted
visitation rights, but it only provides that opportunity in divorce cases (which are covered
in article 27 of chapter 23): "In an action under article 27 of chapter 23 of the Kansas
Statutes Annotated, . . . grandparents and stepparents may be granted visitation rights."
Moreover, since there was no common-law right to grandparent visitation, grandparents
only have the visitation rights set out by statute. See T.N.Y., 51 Kan. App. 2d at 960. So it
would seem that the Protection from Abuse Act would not be an available forum for a
motion or action to establish grandparent-visitation rights.
The grandparents argue that the T.N.Y. case changes this result. That case was a
paternity action in which a father had petitioned to establish custody over his child, who
had apparently been left for a substantial time period by the mother with her parents, the
child's grandparents—but was with mother by the time the case was heard. The district
court adopted paternity orders and a parenting plan submitted by the mother and father,
and the grandparents filed for visitation rights. The district court denied their request
because K.S.A. 2015 Supp. 23-3301(a) provided for grandparent visitation only in
divorce cases and this was a paternity action.
Our court reversed, concluding that no legitimate state purpose would be served
by allowing grandparent visitation in divorce actions but not in paternity cases; to do so
would violate the equal-protection rights of the children, making a distinction between
those who were born within a marriage and those who were not. To avoid that result, our
court said that the opening phrase of K.S.A. 2015 Supp. 23-3301(a)—"In an action under
article 27 of chapter 23 of the Kansas Statutes Annotated"—should be stricken. 51 Kan.
App. 2d at 969.
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Based on T.N.Y., the grandparents argue that K.S.A. 2015 Supp. 23-3301(a) now
applies to all types of actions that could involve child-custody and visitation matters. We
disagree and conclude that the T.N.Y. case does not apply beyond its own setting—
namely, a request for grandparent visitation within a paternity case.
The point of the T.N.Y. case was that if the State wanted to allow grandparent-
visitation rights in divorce actions, with children born during a marriage, it must also
allow grandparent-visitation rights in paternity actions, with children born out of
wedlock. To do otherwise, the T.N.Y. court determined, would violate the equal-
protection rights of children born out of wedlock to have their interest in grandparent
visitation considered on an equal basis with children born during a marriage.
But that doesn't mean that grandparent-visitation rights must also be considered in
cases brought under the Protection from Abuse Act. In accord with the T.N.Y. case,
grandparents can already bring those claims in divorce cases or in paternity cases. Austin
and Maggie weren't married when Charlie was born, and a paternity case already has
established the rights of the parents and Austin's role as Charlie's father. So we presume
that the grandparents could file a motion seeking grandparent-visitation rights in that
action. Ryan and Maggie were married when Sylas was born, and they remain married
with no divorce action on file, as far as our record shows. So there is no divorce or
paternity action where the grandparents might file a grandparent-visitation claim
regarding Sylas.
The T.N.Y. case does not suggest that creates a problem, however. Nothing in
T.N.Y. suggests that there's an equal-protection problem in providing a legal way for
grandparents to seek visitation rights when a family is not intact (as in a divorce or
paternity action) and not providing that legal mechanism when a child was born to
parents who were, and still are, married. After all, parents have the fundamental
constitutional right to raise their children, and even in contested proceedings courts
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presume that the parents' decisions on these matters are in the children's best interests.
Skov v. Wicker, 272 Kan. 240, 248, 32 P.3d 1122 (2001); In re Creach, 37 Kan. App. 2d
613, 620, 155 P.3d 719 (2007); In re Marriage of C.E.P., No. 113,411, 2016 WL 852917,
at *8 (Kan. App. 2016) (unpublished opinion).
As we have discussed, the grandparents presumably could file a motion for
visitation in the paternity case involving Charlie. As to Sylas, the Bakers, who seek
visitation with Sylas (born during Ryan and Maggie's marriage), do not argue that there's
an equal-protection problem in denying a forum for grandparent-visitation claims where a
child is born during a marriage and no divorce action is pending. Instead, their argument
is based on the court in the T.N.Y. case striking the introductory language that limited
K.S.A. 2015 Supp. 22-3301(a) to divorce cases. Without that introductory language, they
argue, the remainder of K.S.A. 2015 Supp. 22-3301(a) now applies to all types of actions
that touch on child custody, including PFA cases.
We do not believe that the T.N.Y. case holding can be applied beyond its setting; it
was a paternity case, not a PFA case. No one argued to the T.N.Y. court that grandparent-
visitation rights could be grafted into PFA cases. So the T.N.Y. court's language about
striking words from K.S.A. 2015 Supp. 22-3301(a) must be read within that context:
When a grandparent files for visitation rights in a paternity action, the introductory
clause of K.S.A. 2015 Supp. 22-3301(a) must be stricken so that the equal-protection
rights of children are not violated. The same is not required—at least on the arguments
presented to us—with respect to the interaction of K.S.A. 2015 Supp. 22-3301(a) and the
Protection from Abuse Act.
With that foundational principle established, let's return to the statutory language
our legislature has adopted. First, it specifically limited the ability to bring grandparent-
visitation claims to divorce cases. That strongly suggests that the legislature did not
intend such rights to be pursued in PFA cases. Second, the Protection from Abuse Act
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makes no mention of grandparent-visitation rights. Third, the Protection from Abuse Act
provides only for temporary custody orders—and the overall orders in PFA cases are all
temporary, lasting up to 1 year in most cases with the option of a 1-year extension.
K.S.A. 2015 Supp. 60-3107(a)(4) and (e).
So the direct statutory language suggests strongly to us that grandparent-visitation
rights just aren't one of the topics available to be litigated in PFA cases. After all,
grandparent-visitation rights didn't exist at common law, so the court's ability to hear
such a claim depends on statutory authority. One other provision of the Protection from
Abuse Act strongly supports this conclusion as well—the provision requiring that we
construe the Act liberally so as to make the courts accessible for victims of domestic
violence. See K.S.A. 60-3101(b).
To consider that, let's review how these cases must be handled in a busy Kansas
trial court. Judges must keep sufficient time and judicial resources available to handle a
steady stream of requests for temporary orders of protection. In addition, judges must set
each of the cases for hearing within 21 days, unless one of the parties has a good reason
for delay. And all of this must be done even if the judge has a 2-week murder trial or a
lengthy medical-malpractice case on the calendar. So judges often set aside fixed times
each week to handle PFA cases—but even so, they may not have much time to hear very
important issues. In these circumstances, we should not lightly read the statutes to add
more issues and more parties to the mix.
We conclude that grandparent-visitation issues are not properly before the court in
a PFA case. In situations in which a grandparent qualifies as the adult who "resides with"
a minor child and files the PFA action, of course, the court might well provide that the
child should stay with the grandparent for the child's protection. And even in other cases,
the court can determine custody and residential placement based on the child's need for
protection. But in those cases, the grandparent's ability to spend time with the child is
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simply a result of the needs of the child, not the request of the grandparent for visitation
rights. We find no legal error in the district court's conclusion that the grandparents could
not bring their motions for visitation time in a PFA case.
III. The District Court Did Not Err When It Determined That Austin Had Not Proven
That Ryan Abused Charlie.
The district court concluded that Austin had not proven that Ryan had abused
Charlie, a precondition for orders of protection. Austin and Linus challenge this
conclusion. Although the district court referenced only Austin as the plaintiff with regard
to Charlie, we note that Austin and Linus filed a joint petition, so we treat the claim as
one brought by both Austin and Linus. There is no indication that the court excluded any
of the evidence from its consideration, so failing to mention Linus as a plaintiff with
respect to Charlie does not affect our review.
The district court specifically found that the plaintiffs had not sustained their
burden to prove that Charlie had been abused as that term is defined in the Protection
from Abuse Act. In a judge-tried case, when the court concludes that a party has failed to
meet its burden of proof, we can only reverse the district court's factual determination if it
arbitrarily disregarded undisputed evidence or was motivated by bias, passion, or
prejudice. Cresto v. Cresto, 302 Kan. 820, 845, 358 P.3d 831 (2015); Paida v. Leach, 260
Kan. 292, Syl. ¶ 2, 917 P.2d 1342 (1996).
Having identified the standard that guides our review on appeal, we turn next to
what Austin and Linus had to prove—abuse, as defined under the Protection from Abuse
Act. The Act provides its own definition:
"As used in the protection from abuse act:
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"(a) 'Abuse' means the occurrence of one or more of the following acts between
intimate partners or household members:
(1) Intentionally attempting to cause bodily injury, or intentionally or recklessly
causing bodily injury.
(2) Intentionally placing, by physical threat, another in fear of imminent bodily
injury." K.S.A. 60-3102(a).
"Household members" includes those who have formerly resided together, K.S.A. 60-
3102(b), so Ryan is covered with respect to Charlie. We look, then, to see whether Austin
and Linus proved that Ryan had intentionally attempted to cause bodily injury to Charlie,
intentionally or recklessly caused bodily injury to Charlie, or, by physical threat,
intentionally placed Charlie in fear of imminent bodily injury.
There was no evidence that Ryan caused or attempted to cause physical injury to
Charlie, and Austin and Linus don't make that claim on appeal. Rather, they argue that
Ryan, by physical threat, intentionally placed Charlie in fear of imminent bodily injury.
In support they argue that Charlie witnessed the events of August 20, 2015, when Ryan's
actions left Maggie bloodied; Ryan and Maggie also struggled with each other while
Ryan threatened to kill himself with a knife and Maggie tried to take the knife away.
Austin and Linus argue that this left Charlie "not merely crying but screaming
hysterically," thus showing that Ryan's physical actions had left Charlie in fear of
imminent bodily injury.
We do not believe that is the only conclusion one can draw from the evidence. To
summarize, there was no evidence that Charlie saw any of the events of August 20.
Maggie testified that Charlie and her stepsister, Avery, were in a bedroom, where "they
were crying because they could hear us fighting." In a written statement, also entered into
evidence, Maggie said that Charlie and Avery had been in a bedroom when Ryan threw
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Maggie into the mirror (in the living room) and that Charlie and Avery "heard that and
started crying hysterically." There also was no evidence that Ryan ever attempted to
strike or harm Charlie. Austin testified that Charlie was scared to be with Ryan, but his
testimony related that to her concern about her mother, not herself: "Any time that
Maggie has been residing with Ryan, Charlie will ask me if she can stay with me because
she doesn't want to go back to Ryan's house, that she doesn't like being there, that Ryan's
mean to her mom, and it makes her sad, and it scares her." With this evidence, we cannot
say that the district court disregarded undisputed evidence when it concluded that Austin
and Linus had not proven that Ryan, by physical threat, had placed Charlie in fear of
imminent bodily injury.
In support of their position, Austin and Linus cite a case, Crim v. Crim, 40 Kan.
App. 2d 367, 196 P.3d 375 (2008), that they contend allowed a PFA case to proceed with
far less evidence than present here. We do not find the Crim case controlling. First, the
issue in Crim was merely whether the allegations made in the PFA petition were
sufficient to allow the case to proceed to a hearing, not whether a trial judge's conclusion
that the evidence didn't show abuse should be reversed. Second, before the trial court's
final ruling in Crim, the mother "withdrew the portion of the petition relating to the
children because the parenting time and custody issues had been resolved the day before
in the divorce proceeding." 40 Kan. App. 2d at 369. Thus, the court was not considering
what allegations are sufficient to show abuse against a child; the plaintiff in Crim was the
mother acting on her own behalf. The court began its discussion by noting that the mother
maintained that her allegations showed that the defendant "willfully placed her in fear, by
physical threat, of imminent bodily injury." (Emphasis added.) 40 Kan. App. 2d at 370.
While the court later referenced threats of violence against both the mother and her
children, its comments must be taken in the context of the issue presented—a claim of
abuse brought, as of the trial court's final ruling, by the mother only on her own behalf,
not on behalf of the children.
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Finally, Austin and Linus argue that the district judge was biased against them, so
the district court's factual findings should be reversed. In support, Austin and Linus argue
that the district judge ignored undisputed testimony; may have been aware of an
interaction between Linus and sheriff's deputies that could have placed Linus in a bad
light; wouldn't allow Linus to question a witness by directly quoting profane language
Ryan had used; and said at the end of the hearing that the court wished it could order
everyone into counseling. We do not find that Austin and Linus have demonstrated bias
on the part of the trial judge:
While we did find that the district court misinterpreted the testimony about when
Maggie and the children lived at the Bakers' home, we don't presume bias every
time a factfinder makes a mistake about the facts. We see no evidence that the
judge's factual error was motivated by bias, and we found no other instance in
which the judge went against undisputed evidence.
We have no evidence that indicates how much the judge knew—before the
hearing—about Linus' interaction with sheriff's deputies. What we do know is that
Linus presented a video of the interaction, a video that Linus suggested would
explain what actually occurred. The record shows that the district judge viewed
that video during the hearing. We note also that Linus did not complain before the
hearing that the judge was biased against him or seek the judge's disqualification.
See K.S.A. 20-311d. "[A] litigant who perceives a judge is biased against him or
her should not be permitted to 'roll the dice' and wait for the outcome of the trial
. . . ." State v. Garcia, No. 108,993, 2014 WL 1508623, at *3 (Kan. App. 2014)
(unpublished opinion), rev. denied 301 Kan. 1049 (2015).
It's true that the trial judge required that Linus use abbreviations or euphemisms
rather than directly quoting profanities witnesses said Ryan had uttered. The
district judge told Linus that he could "fully understand your meaning without that
type of language," and we had no difficulty doing so, either. A trial judge has wide
discretion in setting and enforcing rules of courtroom decorum, see State v.
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Rochelle, 297 Kan. 32, 36, 298 P.3d 293 (2013), and its ruling that profanity need
not be quoted directly in a judge-tried case did not show bias or prejudice.
The judge's comment about a desire to send everyone to counseling may in some
ways be problematic—judges have a duty generally to limit comments and rulings
to what is reasonably required to resolve a case, while refraining from
unnecessarily disparaging the people who come before them. State v. Miller, 274
Kan. 113, 128, 49 P.3d 458 (2002). One could certainly argue that it's generally
inappropriate in a case involving domestic-violence allegations to suggest that
everyone—victim, abuser, and interested parties alike—should go to counseling,
especially when the only official action the court took was to find no proof of
abuse and deny relief. Even so, the judge's comment, though unnecessary, didn't
create reasonable doubt about the judge's impartiality. See State v. Robinson, 293
Kan. 1002, 1035, 270 P.3d 1183 (2012). We do not find the comment indicative of
the sort of personal bias, prejudice, spite, or ill will concerning a party that would
require disqualification of a judge or suggest that we should disregard the judge's
factual findings on account of bias. 293 Kan. at 1032; Paida, 260 Kan. at 304.
The district court's judgment is reversed with respect to the court's jurisdiction to
consider the claims Linus brought for orders of protection, and the case is remanded to
the district court for further proceedings on the claims related to Sylas. The district court's
judgment is otherwise affirmed.
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