State ex rel. Secretary, Department for Children and Families v. M.R.B. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,696
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS, ex rel., SECRETARY OF DEPARTMENT
for CHILDREN and FAMILIES; J.F., Minor Child,
By and Through the Mother and Natural Guardian, E.F., and E.F.,
Appellees,
v.
M.R.B. JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed October 16, 2020.
Reversed and remanded with directions.
Emily A. Hartz and Krystal L. Vokins, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe,
L.L.C., of Lawrence, for appellant.
Jody M. Meyer, of Lawrence, for appellees.
Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.
PER CURIAM: M.R.B. Jr. (father), a resident of Pennsylvania, moved the trial court
to modify residential custody of his biological daughter, J.F. She currently resides with
her biological mother, E.F. (mother) in Kansas. The court denied the father's motion. We
conclude that the trial court abused its discretion in denying the father's motion to change
the residential custody of J.F. Thus, we reverse the decision of the trial court and order
that primary residential custody of J.F. be changed to her father, and we remand with
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directions to the trial court to make all other orders that are not inconsistent with this
opinion.
The trial court held a hearing on the motion to modify residential custody of J.F. in
April 2019.
The father and mother met in July 2011 when the father was stationed at Fort
Campbell, Kentucky. Their relationship lasted six to eight weeks. After their short
relationship ended, they lost contact for a while. The mother later contacted the father to
tell him that she was pregnant. J.F. was born in 2012.
J.F. never lived with both parents at the same time. For the first five years of her
life, her primary caretakers were her maternal grandmother, her mother, and her mother's
boyfriend, Joe. The father has never lived in the same state as J.F. The father's service in
the military continued until August 2017. Between 2012 and 2017, The father visited J.F.
about 10 times, between deployments to Iraq and enrollment in an intensive military
training school.
The father testified that he always had difficulty exercising parenting time because
of the mother's interference. He testified that his first parenting time was Labor Day
2012, but the mother opposed the visit. He explained that her opposition led to his August
2012 motion for temporary order of parenting time, alongside his voluntary
acknowledgement of paternity. After a hearing, the trial court ordered parenting time for
the father on Labor Day weekend 2012. After that first parenting time, the mother
continued to disagree with the father's exercise of parenting time. These disagreements
frequently resulted in a need for intervention from attorneys and the court.
Meanwhile, the mother and J.F. lived with Joe until the mother moved into her
own place with J.F. in August 2016. Then, in November 2016, the mother and J.F. moved
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in with Nick, the mother's then-boyfriend. In January 2017, the mother had a falling out
with Nick. She and J.F. moved out of Nick's home and moved back in with Joe. Shortly
after the mother and J.F. left Nick, Nick committed suicide. In total, J.F. moved with her
mother into five different residences in two years.
In February 2017, the father moved to modify residential custody, outlining 11
reasons for switching residential custody from the mother to himself. In summary, the
father's allegations were that the mother did not provide a stable environment for J.F. due
to multiple moves and changing relationships; that J.F. was in the mother's home the day
Nick committed suicide; that the mother failed to give the father information regarding
her relationships and moves; that J.F. had two crowns and two fillings by the age of four,
causing the father's concern about her dental hygiene; that J.F. had head lice; that J.F.
reported being spanked by the mother's boyfriend; that the mother brought J.F. into
disputes between her parents; and that it would be healthy for J.F. to live with her father
and his family in Pennsylvania.
The trial court order the parties to mediate. When mediation was unsuccessful, the
court appointed Tracey Mackeprang to prepare a prehearing summary based on a limited
home study and custody evaluation. The court then held a trial on the father's motion to
modify in November 2017. The court denied the motion, noting that the parties never had
a relationship where they could build up some kind of trust with each other and in each
other's judgment. The court admonished the parties for "swearing at each other by text."
Particularly, the court told the father: "you aren't going to get any cooperation from a
mother about seeing your child when you talk that way."
But the court also acknowledged the fears at the heart of communication
difficulties, stating, "both of you are afraid of each other is the bottom line." The court
acknowledged that the mother's fear was that the father was building a case against her to
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change custody of J.F. The court understood the father's fear was that the mother would
shut him out of J.F.'s life.
In its ruling, the court specified that it was the father's burden to show that there
are substantial changes in circumstance that require a change of custody, and he had not
met that burden. Specifically, the court did not find neglect, did not find that the mother
was encouraging J.F. to lie, and found that J.F. was not present when Nick committed
suicide.
In July 2018, the father moved the court for a psychologist's examination of J.F.
The father requested the examination because J.F. had told him that she had been spanked
by the mother and her boyfriend. Danielle Rowley, a licensed master's level social
worker, examined J.F. and then, beginning in September 2018, conducted therapy
sessions with J.F. at least once a week. Rowley testified that J.F. is generally "a very
expressive child" with "lots of good verbalization methods" and that "you can read her
facial emotions very clearly." According to Rowley, J.F. typically "doesn't hide much"
and gives honest answers to the best of her ability. To Rowley, J.F.'s discomfort is readily
apparent when she does not want to answer a question.
The intake process involved a private session with each parent before J.F. had her
first therapy session with Rowley. During the mother's intake session, the mother told
Rowley that J.F. has had an eventful life. The mother said that J.F. had been through a lot
of different changes because of the mother's romantic relationships. In describing these
moves to Rowley, the mother said she was hopeful that therapy would be beneficial for
J.F.
At Rowley's first session with J.F., the mother dropped off J.F. and asked if it
would be fine to leave J.F. with Rowley so the mother could run a few errands
downtown. Rowley said that was fine, and the mother left. During the session, J.F. asked
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Rowley, "Did my mom leave?" J.F. then said, "I'm fine I just wanted to know so I could
tell you something." At the time, the mother and J.F. were living with Joe. J.F. told
Rowley about a time when she was in the shower and was being "bad" and she was "hit
across the face by Joe because I am bad and then I didn't stop crying so he said he was
going to throw all my stuffies away." Rowley asked J.F. if her dad in Pennsylvania had
ever did things similar to what Joe did. J.F. replied, "No Silly, I just go to time out on the
steps there." After J.F. provided additional information about the incident, she quickly
added, "I just wanted to tell you that before my mom gets back because she told me on
the way here that I can't tell you those things and that your job is to make me go live with
my dad in Pennsylvania."
In October 2018, the mother and Rowley spoke alone after J.F.'s therapy session.
The mother said that she wanted to move herself and J.F. out of Joe's home but had not
told J.F. yet. The mother asked Rowley for a therapist's opinion on how she could tell J.F.
in such way to have the least amount of negative impact on J.F., especially in light of the
previous upheavals in J.F.'s life. But during session earlier that day, J.F. had already told
Rowley that she knew about the move and that she needed to keep it a secret from Joe.
In that October 2018 conversation, Rowley also told the mother that J.F. disclosed
fears about interactions between the mother and Joe. J.F. used phrases such as "scary
voices," "loud voices," or "mean voices" to describe the interactions. The mother
confirmed that there had been issues going on in the home "regarding yelling and
probably not appropriate interactions" which J.F. witnessed. The mother assured Rowley
that Joe would not be left alone with J.F. moving forward. Rowley testified to how that
conversation ended, stating the following: "I don't remember exactly how [the mother]
worded it, but essentially she said, if I wasn't confident in my decision to leave before, I
am now."
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J.F. expressed sadness because she was not allowed to tell Joe, or his son, Evan,
about moving out. Joe had been in J.F.'s life since she was an infant, and she referred to
him as dad and called Evan her brother. Rowley asked the mother why the move had to
be kept a secret. The mother explained that she was fearful of Joe's reaction if he knew
she was going to be moving. On the day of the move, the mother started moving out in
the middle of the day while Joe was at work. Joe learned about the move when he came
home and saw that the mother and J.F. were in the middle of moving. Shortly afterward,
Joe sent a text to the father's wife, Donna, which said, "You should have [J.F.]."
Rowley explained that for J.F., moving away from Joe was a loss. As with Nick,
moving away impacted J.F. because Nick, Nick's child, Joe, and Joe's son, Evan, were
important parts of J.F.'s life. Rowley described those losses as an "unstable relationship
pattern." She then outlined the effects, pointing out the following:
"so when you are looking at the emotional well-being of a child and how they form their
basis for what relationships should look like in the future and what they are looking for as
they grow, as a therapist, it concerns you as to what foundation is laying for what [J.F.]
will later search for in life for relationships as well."
J.F. was also likely to struggle with closure, in Rowley's view. She explained the
following:
"The moves that I am aware of were both reported to me that they were moves that [J.F.}
was not aware were going to occur until they were occurring; and then with the most
recent move, as I have discussed in detail, she had to keep it a secret or fib or whatever
we are going to call it about it, so I don't know if—we do not talk about Nick. With [Joe],
he is back in her life now, so I think it just creates another issue of, 'Why did he go' and
'Why is he back' and 'What happened,' because we certainly never process that. We have
tried to and it creates feelings of—she doesn't want to talk about those things. She shuts
down."
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In Rowley's written report, she also discussed how J.F. returned to placing Joe in a
"father" role and referring to Evan as her "brother." But during the intervening months
when J.F. had no contact with Joe, J.F. said that she could no longer refer to him as
"Dad" or to Evan as her "brother." Rowley brought up the issue with the mother when the
mother brought J.F. to therapy sessions. Rowley tried to address Joe's contact with J.F.,
but what J.F. disclosed and what the mother was open to disclosing did not always align.
J.F. would become "emotional" in Rowley's office because she felt her mother was being
dishonest and the mother felt J.F. was being dishonest.
The exit and reentry of Joe in J.F.'s life concerned Rowley, which she expressed to
the mother. The concern was that the reasons for J.F.'s contact with Joe being disrupted
had never been addressed in therapy. A further concern was the change of story related to
Joe hitting J.F. in the shower. In early therapy sessions, J.F. described the incident
unprompted multiple times. As J.F. related the incident, water or soap got into J.F.'s eyes
in the shower and she cried. Joe was upset that she continued crying, and he hit her across
the face and threatened to throw all her stuffies away. Rowley reported, "of concern is
that [J.F.] now believes the incident . . . 'was a dream.' . . . She never at any time
indicated it was a dream until Joe was noted to be back in her life most recently." In
session, J.F. told Rowley, "Yeah, my mom told me it was a dream, but I have had other
dreams like that before."
Rowley described a session just before J.F. went to the airport to fly to
Pennsylvania. Rowley said, "So during the appointment, she was very excited in my
office. I want to clarify. So once the door was shut, she was very excited." Rowley
described how J.F. was excitedly showing her pictures of her times in Pennsylvania and
saying she was looking forward to going back for spring break. Rowley continued, saying
the following: "And she was excited to see her siblings there. She was very happy and
very encouraging—I was very encouraging to that. And then when it was time to go, she
didn't want me to open the door."
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Rowley told J.F. that J.F. had a plane to catch and convinced her to leave the
privacy of the office. "And then once I got her out into the waiting room, her behavior
kind of crumbled. And it was two different kids." Rowley described the contrast in
behavior, saying, "She didn't want to go, she didn't want to get on the plane, she didn't
want to go to grandma's, she didn't want to go to lunch, she didn't want to go to the
airport. It was completely opposite of what was just happening minutes before in the
office." Rowley's explanation for J.F.'s behavior, explaining, "I believe that she is just—
she is a child that is torn in two different directions. And I think she is scared to show
how she feels for some reason about her desire to want to be with dad and spend time
with him, or to seem excited, is my opinion." In fact, Rowley testified that in their early
sessions, J.F. explicitly said that she wasn’t supposed to talk about dad in Pennsylvania.
Rowley summarizes this behavior, stating, "[J.F.] has historically been resistant to
discussing things in therapy if she feels that whoever brought her is close enough to
hear." One session, J.F. told Rowley that her mother and Joe were fighting again, but
refused to elaborate, saying, "they will hear and then I will be in trouble for talking about
their business with you." Rowley testified that she is concerned about a theme of
dishonesty or keeping secrets.
Rowley gave a further example to illustrate this theme. Rowley realized that J.F.
was around Joe again, based on her following interaction with J.F.: "[J.F.] started talking
about how she wasn't supposed to tell me [Rowley] that they went over there and things
like—she started to disclose those things in therapy." Later, Joe brought J.F. to a few
therapy appointments.
Although they had moved out, J.F. told Rowley that she and her mother stayed
with Joe periodically. When they were not at Joe's, J.F. and her mother stayed at her
mother's apartment in Perry. But there was only one bed, which J.F. usually shared with
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her mother. Thus, when her mother offered an adult male friend named Spencer a place
to sleep for the night, he slept in the same bed with J.F. and her mother.
J.F. told Rowley that she wished she had her own bed at Joe's because she has a
bed at her Meemaw's (maternal grandmother) and a bed at her dad's house in
Pennsylvania. Initially, J.F. said that she slept on the couch at Joe's. But in later sessions,
J.F. told Rowley that she slept in Evan's bed because he wasn't there. But J.F. hoped that
they would have her bed back soon because she missed her bed there. Other than
discussing her bed, J.F. was reluctant to share details about living with Joe, for example,
how she gets home from school.
Rowley testified to the impact of an adult asking a child to keep secrets. Rowley
said, "it reinforces that lying is ok." Rowley referenced information in scientific literature
about the critical needs of children, explaining: "it invalidates their need to feel
important, because they are being reinforced to be—taught to lie and it influences their
emotional well-being overall."
Nevertheless, J.F. was not secretive on other topics and opened up to Rowley and
other adults in her life. J.F. was open about spankings she received when staying with her
mother. First, when her mother and J.F. were living with Nick, J.F. told her father that
Nick had spanked her. Later, J.F. told Rowley that when she "was being bad" her mother
spanked her, including once with a belt. Later, J.F. repeated the story to her stepmother,
Donna, her father's wife. J.F. affirmed that the story was true: that her mother did hit her
with a belt and that J.F. had already told her father about it.
As told by J.F. to her father and Donna, the incident happened in Joe's house,
before her mother and J.F. moved out. According to J.F., her mother said that if she didn't
finish her dinner, then her mother would hit her with a belt. J.F. described how her
mother took her into the bedroom, "laid her down on mom's side of the bed," and hit her
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with the belt. J.F. said that it really hurt and she cried in a blanket. Donna asked J.F. what
happened that she ended up getting hit with a belt. Donna testified: "And she just said, 'I
was really, really bad.' And she was very dramatic about it, 'like really, really, really bad,
and I just wouldn't stop being bad.' So mom hit me with a belt." The mother testified that
the belt incident never happened.
When J.F. discussed spanking with Rowley, J.F. often explained that she is
spanked "because I am being bad." Rowley worked with J.F. on this self-perception.
Rowley testified, "because she had this overall—she had this opinion of herself that she
was bad. And so we have worked to kind of overcome that and that she's not bad, that
maybe some choices she makes aren't appropriate, but you can make great ones, too."
The father testified that he saw the same self-perception in J.F. when she described her
behavior, or perceived behavior. The father described a time he gave J.F. instructions,
following up with saying, "You are being a really good listener." According to the father,
J.F. replied, "I am a really good listener in Pennsylvania, but I'm not very good in
Kansas."
Rowley's testimony showed that the two homes also differ in how J.F.'s phone
calls are handled. J.F. told Rowley about hand signals that her mother uses when J.F. is
on the phone with her father. Rowley stated: "And she has talked about how her mom
has hand signals and she demonstrated them to me." Rowley testified that J.F. showed her
a hand signal which means "don’t talk about it," as well as signals for yes and no.
When counsel asked Rowley if the mother had any methods to encourage J.F. to
talk on the phone to her dad, Rowley replied, "I can't think of anything." When asked
whether the mother discouraged the phone calls, Rowley described the timing of events
and their effect on J.F.'s attitude. Rowley stated the following:
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"I think that sometimes, phone calls for [J.F.] are just tough because they are
happening—like there's—you have to have a phone call before—this is per [J.F.]. You
have to have a phone call before dinner, before I can go to dinner. You have to have the
phone call . . . [s]o you can't go to [kids club]. . . . So I think just there is always
something more desirable on the other side of the phone call. So maybe it makes it more
difficult for [J.F.] to feel like she can be open. I think there is always—[J.F.] talks about
how a lot of the times, the phone calls are when she wants to be doing other things, like
because she is playing with a friend and she gets called in. And so she has to stop what
she is doing to make the phone call. So she is having fun and then time out and then has
to reengage."
J.F. has told Rowley that she sees the phone calls with her father as an obligation
because she has to talk to her father before a more desirable event. Combining the timing
of the calls with the "hand signs" that J.F. demonstrated, Rowley said, "This is also
concerning as it seems this does not promote the positive side that phone calls have on
the child," if J.F.'s descriptions are true and accurate.
Rowley testified that J.F. has a different experience when in Pennsylvania, calling
her mother. The father and his wife have told Rowley that they give J.F. her space when
she is there for phone calls. Rowley added, "I have never heard anything different from
[J.F.] that there is any issue with phone calls." J.F. told Rowley that there are no hand
signals when she is with her dad and calls her mom.
Overall, Rowley's assessment of J.F. throughout their counseling sessions was that
her emotional state cycled as with any child, but her openness in therapy definitely
declined. In Rowley's written report, she noted the following: "a decline in J.F.'s desire
to share feelings and work through areas of discomfort in therapy, when in the past she
was historically very open." Rowley also wrote, "[J.F.] has had increased trouble at
school through both self and parental (both parents) reports."
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In Rowley's opinion, J.F.'s life in Kansas is very unstructured, not providing the
stability and routine that J.F. seems to want. One thing that J.F. was consistently open
with Rowley about was that J.F. oftentimes did not know if she would be sleeping in
Perry, or in Oskaloosa, or going to Meemaw's, or going with Aunt Evie. Rowley said,
"And so she just really wants to know what's happening and just kind of what is her home
base."
J.F. expressed a desire to be in one house. But, Rowley's report says, "she
sometimes doesn't know where she is 'sleeping' during the week or on weekends."
Rowley noted that her therapy office has become a point of stability in J.F.'s life. During
transitions in her life, J.F. often does not want to leave Rowley's office, or she wants to
make sure she can take something of Rowley's so she can bring it back.
In summarizing the changes that have happened in J.F.'s life, Rowley stated the
following:
"Since I have worked with [J.F.], she has moved, she has changed schools, she
has been unable to say goodbye to someone she viewed as a father [Joe], she has been
unable to say goodbye to someone she viewed as a brother [Evan]. [J.F.] has expressed to
me—there was an incident around Thanksgiving where I believe she was supposed to go
to Pennsylvania, but she was very upset about going to Pennsylvania because she said
that they were supposed to have Thanksgiving here at her grandma's and that was the
only time she was going to be able to see Aunt [Evie] and her other family. So she was
feeling very torn. So we just have this kind of significant level of pressure on a now
seven-year-old child."
Rowley stated that J.F. needed structure for her emotional stability. Elaborating on
J.F.'s needs, Rowley explained the following:
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"Specifically, I think [J.F.] needs to feel secure. She needs to know her routine, she needs
to know where she is going to be every night, where she is going to attend school, what
activities she is going to be in. I think that in order to feel respected, she needs to not be
encouraged that lying is okay. She needs to be validated in her feelings. So if she reports
that something happened, we need to continue to explore that and hear her out and talk
with her. I think overall, just creating kind of a positive environment where we see that
people care for one another and we work through our issues and just creating a strong
foundation for her to grow from."
Rowley described J.F.'s time in Pennsylvania with the father differently. Rowley
said, "[J.F.] is able to articulate to me what her bedtime is in Pennsylvania, what her
room looks like, who reads her bedtime stories every night, that she—what activities she
is going to participate in, whom she will play with. So she seems to feel like it's a very
structured, predictable, consistent environment." Rowley further testified about J.F.'s life
with her father and Donna, stating the following: "She understands their home, the rules.
She expresses that she feels the love and she has given me examples, and she expresses
ways in which those critical needs are being met when she is there for those periods of
time, and I believe she does feel secure." Often when J.F. returns from a visit to her father
in Pennsylvania, "She is happy and she is excited, she wants to tell me all about what she
has done and often brings me lots of pictures or things to show me."
After months of counseling, Rowley gave J.F. a primary diagnosis of Parent-Child
Relational Problem and a secondary diagnosis of Child Affected by Parental Relationship
Distress. Rowley also pointed to recent symptoms consistent with Adjustment Disorder
with disturbance of emotions and conduct. Explaining her primary diagnosis to the court,
Rowley testified that Parent-Child Relational Problem "is when children are experiencing
difficulty with appropriate discipline or structure methods with one parent or another."
Rowley also said that alternative criteria which could result in the same diagnosis would
be unresolved parental conflict that is negatively impacting the child in some way. In
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Rowley's opinion, J.F.'s day-to-day environment was the primary factor in her diagnosis,
not conflict between the parents.
J.F.'s attitude toward living with her father evolved over her sessions with Rowley.
At the first session, J.F. was scared until Rowley clarified that it was not her job to dictate
where J.F. would live. Rowley explained J.F.'s change in attitude, saying, "she, at one
time, brought up how she wished her parents could just be neighbors so that she could
run down the street like she does with her friends and spend the night at her dad's house."
J.F. told Rowley that she was afraid of moving to Pennsylvania because her mom would
be very sad without her in Kansas, and she didn't want her mom to be sad. But J.F.
eventually said, "it would be okay if I saw my dad like I saw my mom and I saw my mom
like I saw my dad."
Julia Butler, J.F.'s guardian ad litem (GAL), read Rowley's reports, Mackeprang's
home study and custody evaluation, the pleadings in the case, and the GAL questionnaire
forms completed by the father and the mother. Butler also spoke with J.F., Rowley, one
of J.F.'s teachers, the mother, the mother's mother, Joe, the father, and counsel for the
father and the mother. Throughout, Butler e-mailed the father, the mother, and Rowley.
Butler reviewed J.F.'s school attendance records and met with J.F. again. Using the
information gathered, Butler made a recommendation "[b]ased upon review of the non-
exclusive factors in K.S.A. 23-3203 that the Court should consider in determining child
custody, residency, and parenting time."
Butler recommended that the father have primary residential placement of J.F.,
after J.F. finished the current school year in her Kansas elementary school. To the court,
Butler explained the following:
"I don't take the recommendation I made in this case lightly of changing the residences of
[J.F.]. . . . The conflict between the parents is not the issue with [J.F.]. The issue with
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[J.F.] is the instability, the constant worries about where she is going to . . . spend the
night, where she has a bed, the constant back and forth, . . . because I think we need to
focus on [J.F.'s] emotional health, and I think both reports from Ms. Rowley detail
specific incidents and specific statements made by [J.F.] and by [Mother] regarding their
situation, their sudden move from Oskaloosa to Perry and their going back to Perry after
the court said no overnight guests in the home. I don't believe that, for one second, that
the opinions expressed by Ms. Rowley are not neutral or that she is biased in some way
against either parent. The issues that Ms. Rowley has concerns about is the continued
emotional health of [J.F.] due to continued changes in her regular schedule."
Butler concluded, stating: "I do think that this child deserves the ability to know
where she is going to sleep every night, where she has a night routine. I think that is very
important and I think that [J.F.] would be served by adopting the Guardian Ad Litem
recommendations."
At the end of the April 2019 trial, the court made its findings from the bench. The
court first complimented both the mother and the father on the "amazing child" who "is
that way because of both of you." Then, the court addressed each parent's perspective,
saying the following:
"What I do care about is [I] don't think either one of you respects the other's relationship
with this child. You know, I have a hundred percent sympathy for you, {Mother], that
you felt like you had this child all by yourself and were the sole parent for a number of
years and why is this man bothering me. I did just fine without him.
"And [Father] I understand your position perfectly. You stepped forward way
before many a dad would step forward to establish a relationship with this child. You are
the one who actually filed the action to have that determination made. You have shown
from the very beginning that your concern is for this child, and that your circumstances at
the time were that you were in the military and you did the best you could to maintain a
relationship, but your job and position limited that. And then when that military service
ended and you had more time and more normal people hours, I guess is the best way to
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put it, you stepped forward and said, 'Now it's time for me to really have a relationship
with this child.'"
Continuing this approach of balancing the actions of each parent, the trial court
addressed specific issues with each parent's behavior. The court said, "So mom, this is
what concerns me: I do think that your living situation has been unstable, . . . " The court
said a child should not have that kind of instability because it creates a feeling of not
really being sure what is happening today or tomorrow. The court also reminded the
mother that the parenting plan did not allow physical punishment. And the court told the
mother that it "didn't like" her inability to cooperate with the father when he comes to
Kansas, stating: "He has come all the way from Pennsylvania, and he should be able to
see the child." Finally, the court was "not happy" that the mother had not followed a court
order, stating: "I said no overnights . . . I meant no overnights, just you and [J.F.]. You
can see who you want during the day, but no overnights."
Turning to the father, the court referenced testimony from the mother that police
conducted a welfare check at her home. The mother testified that the father called the
sheriff because the father thought that J.F. was home alone while the mother was out. The
court referenced this incident, saying the following:
"And the other thing I want dad to—that welfare check just drives me crazy that
you would send the police to that house. If [J.F.] would have been there, that would have
scared her to death to have the police pounding on the door demanding to know where
she was. There had to have been a better way to check out whatever information you
were getting, such as calling or texting mom.
"I just feel like you can't leave her alone. You just nitpick everything she does."
The court began its assessment of residential custody by addressing the father,
stating the following: "I don't really trust you to support mom's relationship with [J.F.],
and I look at the ability of mom to long distance—to do a long distance parenting of
16
[J.F.] is nearly impossible, where it is possible for you." The court later explained further,
stating the following about the mother: "She doesn't have the finances or the financial
stability even with a better job to take weekends or long weekends and fly to
Pennsylvania in order to see [J.F.], and dad can do that."
The court acknowledged that J.F. had bonded with, not only each parent, but the
families around each parent. The court recalled testimony that J.F. wished her parents
lived close together so that she could stay with each one in turn. The court addressed the
issue of stability, stating the following: "I do have a concern as far as—just like Ms.
Rowley does and just like Ms. Butler does concerning some angst is the best way I can
describe it as a lay person that [J.F.] is feeling." The court concluded its analysis by
stating the following: "[T]he bottom line is she needs a relationship with both of you and
she needs to be able to spend the most time possible with both of you, and the best way to
do that is to keep her here in Kansas." The court denied the father's motion to change
residential custody but adopted all other recommendations of the GAL.
The father filed an Objection and Request for Findings of Fact and Conclusions of
Law in April 2019, alleging that the evidence did not support the court's ruling. In
January 2020, the trial court filed written Findings of Fact and Conclusions of Law.
The father timely appeals.
Did the Trial Court Abuse its Discretion By Awarding Custody to the Mother Based on
an Error of Fact?
We come now to the critical issue of whether the trial court correctly determined
that the residential custody of J.F. should remain with the mother. As the father points out
in his brief, the trial court reduced the residential custody issue of J.F. to two options:
"(1) order residential custody of J.F. remain with [her mother] so that both parents can
17
exercise their parenting time; or (2) order residential custody of J.F. change to [her father]
and [her mother] will be unable to exercise her parenting time with J.F." because of her
mother’s lack of financial resources. We agree with the father that when the trial court
ruled in this way, it created a false dilemma.
A false dilemma is a situation in which we are confronted with choosing between
two alternatives or options: often describing one option in the terms of its acceptability
while describing the other option as plainly unacceptable and much worse than the other
option. We note under the trial court's two options, there is no doubt that few people
would disagree with the court's first option. But is there any reason to think that denying
the father residential custody of J.F. is the only way both parents can exercise their
parenting time with J.F.? More to the point, is there any reason to think that the father
could be awarded the residential custody of J.F. and that a process could not be worked
out where the mother's lack of financial resources, if any, could be alleviated so she could
exercise her parenting time with J.F.?
For example, as the father points out in his brief, the trial court has the authority to
make the father responsible for J.F.'s traveling expenses when she is exercising her
parenting time with her mother. Thus, the two options which we are left with are neither
exclusive nor exhaustive. So we have no reason to believe the trial court’s claim―either
residential custody of J.F. remain with her mother or her mother will be unable to
exercise her parenting time―is true.
Standard of Review
Various provisions of K.S.A. 2018 Supp. 23-3201 et seq. guide a trial court's
discretionary determination of a child's custody, residency, visitation, or parenting time.
The paramount consideration in making these decisions is the child's welfare and best
interests. In light of the trial court's unique vantage point of what is often an emotionally
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charged situation, an appellate court generally will not overturn these decisions unless the
court abused its discretion. See Cheney v. Poore, 301 Kan. 120, 128, 339 P.3d 1220(2014). Challenges to specific factual findings in support of these determinations are
reviewed to assure that they are supported by substantial competent evidence and that
they support the court's legal conclusions. See In re Marriage of Vandenberg, 43 Kan.
App. 2d 697, 704, 229 P.3d 1187 (2010). Determination of a correct legal standard raises
a question of law subject to de novo appellate review. Harrison v. Tauheed, 292 Kan.
663, 672, 256 P.3d 851 (2011).
A trial court's modification of an order of custody, residency, visitation, or
parenting time is governed by K.S.A. 2018 Supp. 23-3218 et seq. An appellate court
generally reviews a trial court's order granting or denying such modification for an abuse
of discretion. See In re Marriage of Grippin, 39 Kan. App. 2d 1029, 1031, 186 P.3d 852(2008). Judicial action constitutes an abuse of discretion if it (1) is arbitrary, fanciful, or
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact." Frazier
v. Goudschaal, 296 Kan. 730, 755, 295 P.3d 542 (2013). A court commits an error of fact
if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011). Substantial competent evidence refers to legal and
relevant evidence that a reasonable person could accept as being adequate to support a
conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). With these standards
firmly in mind, we turn now to the merits of this appeal.
We now consider the trial court’s finding of facts. Four of the trial court's findings
of fact are contested in this case.
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1. The court found that the mother does not have the financial resources to exercise
extensive long-distance parenting time.
The father argues that the trial court erred in finding the mother's net monthly
income was $1,800. He notes that no evidence was presented regarding the mother's net
monthly income. The mother concedes that she presented no testimony about whether she
could afford to make trips to Pennsylvania. Nevertheless, the mother argues that the trial
court found that her net monthly income was "approximately" $1,800 and the evidence of
the mother's hourly wage and hours worked supported this estimate.
The evidence showed that the mother made $14 per hour at an accounting firm.
But the record is not clear on how many hours the mother works. The mother testified
that, in general, she worked "8:00 to 5:00 Monday through Friday." But during tax
season, her hours are expanded, and the accounting firm is also open from 8:00 to noon
on Saturdays with employees sometimes staying past noon. Also, the mother testified that
she did not pay rent while living with Joe, but she did help with unspecified bills. The
mother cites no other evidence in the record to establish income, deductions, or
withholdings. In short, the record does not allow for more than a guess at the mother's
true income and expenses. Given the evidence in the record, the trial court's statement
that the mother's net monthly income is approximately $1,800 is unsupported.
But the finding of fact contested here was not simply the mother's net monthly
income. The trial court stated the following: "Mother simply does not have the financial
resources to exercise such extensive long-distance parenting time. The child should not
be deprived of a meaningful relationship with her mother due solely to Mother's financial
constraints." To support this finding, the court would need substantial competent
evidence of the travel costs as well as the mother's net monthly income. The record
shows that the father's annual travel costs amounted to $5,320 or more. The mother cites
20
this amount, as it was previously determined at a July 2018 hearing on child support. The
father does not dispute this amount.
Turning to the evidence of the mother's financial inability to travel to and from
Pennsylvania to exercise parenting time with J.F., we note no testimony or other evidence
was admitted into the record regarding her ability or inability to exercise parenting time
with J.F. if J.F.'s residency was changed to her father. On the other hand, the father points
out in his brief that the trial court had the authority to change its child support order in
this case to reflect compensation for out-of-pocket travel expenses. Indeed, a trial court
has the authority under the Kansas Child Support Guidelines to "modify child support
orders to advance the welfare of the child when there is a material change of
circumstances." Kansas Child Support Guidelines § V.A. (2019 Kan. S. Ct. R. 106).
Also, a trial court has the authority to adjust the child support obligation to assist a
parent financially when exercising parenting time. For example, the Guidelines state:
"Any substantial and reasonable long-distance transportation or communications cost
directly associated with parenting time shall be considered by the court. The amount
allowed, if any, should be entered on Line E.1." (Emphasis added.) Kansas Child Support
Guidelines § IV.E.1 (2019 Kan. S. Ct. R. 100).
Alternatively, the father contends that the court could require him to transport J.F.
to Kansas for the mother's parenting time. The father's suggestions point to a relevant
fact: No evidence existed in the record showing the mother's ability or inability to pay
traveling expenses to exercise her parenting time with J.F. As a result, no evidence
supports the trial court’s finding that the mother's financial constraints would limit her
ability to exercise parenting time with J.F. So the trial court's finding is not supported by
substantial competent evidence.
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2. The court found that J.F. does well in the mother's home, has the needs of a
typical child, and has adjusted to her home, school, and community.
The father argues that the reports and testimony of child welfare experts show that
J.F. does not do well in the mother's home. He asserts that the testimony and reports of
J.F.'s therapist Rowley and GAL Butler show the instability and insecurity of J.F.'s life
with her mother, especially their frequent moves and J.F.'s school changes. The father
points to the primary diagnosis of Parent-Child Relational Problem and secondary
diagnosis of Child Affected by Parental Relationship Distress to show the effect of
instability on J.F. The father contends that the trial court abused its discretion based on
errors of fact.
The mother responds that the father's argument does not show how the court erred
in fact. Instead, the mother contends that the father's argument is simply that the court
misapplied, failed to consider, or improperly weighed evidence. Thus, the mother
contends that the court did not ignore evidence but weighed the evidence appropriately.
The father's primary assertion on appeal is that J.F. does not do well in the
mother's home. The mother responds by pointing to testimony that J.F. was doing well in
school. The mother notes that the trial court admitted J.F.'s report cards and a letter from
J.F.'s principal into evidence. Those documents are not in the record on appeal. The
mother's argument misses the mark because the father does not contend on appeal that
J.F. performs poorly at school. Thus, substantial competent evidence supports the finding
that J.F. has adjusted to her school, but the father does not argue that the court erred on
this part of its finding.
Nevertheless, the mother goes on to address the father's central contention that she
does not provide a stable home life for J.F. The mother testified that while the therapist
22
had mentioned that the mother told her that J.F. had an "eventful" life, the mother meant
that J.F. had a healthy life, full, and not boring. The mother further testified that she
believed J.F. to be emotionally stable, with no behavior problem concerning her mental
stability except when she returned from visiting her father. Thus, the mother points to her
own testimony as the evidence supporting the finding that J.F. has adjusted to her home.
But in making its finding, the trial court ignored Rowley's testimony and Butler's
recommendation. The court's written findings of fact and conclusions of law did not
acknowledge Butler's recommendation for residency placement and did not acknowledge
Butler's role as GAL. Rowley merits a mention in the trial court's written findings only
once: The trial court wrote:
"Danielle Rowley reported [J.F.] is concerned that Mother and Joe argue in a loud and
scary way. Mother denies she and Joe yell or scream at each other. She admits they have
argued, as typical couples will. She does not believe it is concerning, but understands it
might concern a child to hear arguing."
Also, the court did not acknowledge Rowley's description of J.F.'s relationship
with Joe. The mother argues that she presented sufficient evidence for the court to find
that J.F. had a warm relationship with Joe. Indeed, the court in fact found that they were
close, and Joe had been a father figure for J.F.'s entire life. But the court ignored
Rowley's testimony that this closeness was precisely the problem. Rowley agreed that Joe
was a father figure, testifying that J.F. was upset and sad that she had to move away from
Joe in secret. Rowley testified that J.F. struggled to process why Joe was not in her life
and, later, why he was back in her life. Given this context, the mother's and Joe's
testimony about J.F.'s attachment supports a finding that J.F.'s home life was unstable in a
way which was disruptive for J.F. The court arrived at the opposite conclusion by
disregarding Rowley's testimony.
23
Further, from the bench, the court seemingly failed to acknowledge Butler's
recommendation that the father have primary residential placement of J.F., stating the
following:
"Anyway, [J.F.] has bonded with the Pennsylvania family, [J.F.] has many bonds
here in Kansas, and one of the things that I was listening to Ms. Rowley talk about is, as
far as what is stability, and it doesn't just have to do with the house you are in or the
school you go to. It really does have to do with the people in your life. And what kind of
disruption by my order are we going to have in disrupting her life.
"I do have a concern as far as—just like Ms. Rowley does and just like Ms.
Butler does concerning some angst is the best way I can describe it as a lay person that
[J.F.] is feeling, but the bottom line is she needs a relationship with both of you and she
needs to be able to spend the most time possible with both of you, and the best way to do
that is to keep her here in Kansas."
The court here ignores the recommendation of Butler and the bulk of Rowley's
testimony: that J.F. has had significant instability and that she has felt more than angst at
times. From the bench, the court acknowledged that J.F.'s living situation with the mother
was unstable. But the court's written findings of fact ignored that instability and its
effects.
Nevertheless, the mother argues on appeal that the trial court did not ignore the
GAL, but simply disagreed with her recommendations. The mother attempts to draw a
parallel to In the Matter of the Marriage of Ray, No. 121,011, 2020 WL 2502234 (Kan.
App. 2020) (unpublished opinion). In Ray, the mother contended that the trial court
disregarded the testimony of Dan Byarlay and Angela Koerperich, who provided
counseling for the family. But the facts of Ray differ from the facts here. In Ray, the
mother's assertion simply misstated what the counselors said in their testimony. The
mother contended that Byarlay provided credible testimony of the father's emotional
abuse, but the record did not support her claim. The mother also asserted that the father
24
kicked the minor child, an incident that the mother reported to the child's teachers. But
the child's therapist was unaware of the incident and could not testify about it. Simply
put, the trial court in Ray did not ignore relevant testimony because there was no
testimony to ignore on those points.
Here, Rowley testified at length at the hearing, after submitting two written
reports. Rowley presented evidence that J.F.'s life with the mother was sufficiently
unstable and that it negatively affected her emotional well-being. The trial court did not
mention any of this evidence in its written findings of fact: "[A] factfinder cannot
disregard undisputed evidence that is not improbable, unreasonable, or untrustworthy.
Such evidence must be regarded as conclusive." Casco v. Armour Swift-Eckrich, 283
Kan. 508, 515, 154 P.3d 494 (2007). The mother offered no expert testimony or other
qualified evidence to dispute Rowley's diagnoses. The mother also did not dispute the
instability of J.F. changing homes and changing schools. In sum, the court's finding that
J.F. is well adjusted to her home with the mother is not supported by substantial
competent evidence. The trial court's error here was its unwillingness to acknowledge the
unchallenged testimony and reports of Rowley, J.F.'s therapist, and the recommendation
of Butler, J.F.'s GAL.
3. The court was silent on evidence of abuse.
On appeal, the mother and the father both assert that the court found that there was
no evidence of domestic abuse in the mother's home. They are both mistaken about the
trial court's findings of fact on the issue of domestic abuse. More precisely, the court
declined to adopt a particular finding of fact on domestic abuse.
After the hearing, the father submitted proposed findings of fact and conclusions
of law. On appeal, the father contends that the trial court erred when it did not adopt fact
number 29 from his proposed findings of fact. Fact 29 reads as follows: "Petitioner
25
confirmed allegations that Joe . . . was abusive toward [J.F.] with Ms. Rowley." Thus, the
disputed fact was not whether domestic abuse occurred. The disputed fact was about what
the mother disclosed to J.F.'s therapist. The mother's testimony does not reflect she told
Rowley that Joe was abusive. The father makes an inference when he points to the
mother's testimony that she moved because of "deteriorating" circumstances in the home.
But this statement is ambiguous and does not support the assertion that the mother
confirmed to Rowley that Joe was abusive. The father also claims that the mother
"admitted that what [J.F.] had described as verbal abuse was occurring." But the mother's
actual testimony was simply that there was yelling. The mother testified that she never
identified verbal abuse to Rowley.
In its ruling, the trial court addressed corporal punishment rather than abuse. The
court noted, "Mother admits to 'swatting' [J.F.] with her hand." Also, the court stated:
"[J.F.] has denied to her Mother she was slapped by [Joe]." Finally, the court wrote:
"Grandmother admits she would swat [J.F.] as discipline, but she now uses time outs and
talking."
Thus, contrary to the phrasing used by both parties on appeal, the court did not
affirmatively state that there was no evidence of domestic abuse. But the court also did
not find that there was enough evidence to establish domestic abuse. The court
acknowledged only that the mother and her family used corporal punishment until the
court's October 2018 journal entry ordered no physical punishment, such as spanking.
The discussion of corporal punishment shows that the court did not ignore the father's
allegations that the mother and others had hit J.F. The court's weighing of the evidence is
readily apparent. The court clearly weighed the father's accusations against the mother's
denials and did not find that the evidence established domestic abuse. Appellate courts do
not reweigh evidence, pass on witness credibility, or redetermine questions of fact. In re
Marriage of Vandenberg, 43 Kan. App. 2d at 705. And, thus, the court made no error of
fact on this point.
26
4. The court found that neither parent respects nor appreciates the bond the child
has with the other parent.
The trial court found that neither parent respects nor appreciates the bond the child
has with the other parent. The father disagrees in part. The father argues only that a
finding that he does not respect or appreciate the bond that J.F. has with her mother is not
supported by the evidence. Rather, the father contends "that it is [the mother] who does
not respect or appreciate J.F.'s bond with [Father]. The father further explains the
following: "The record in this case shows dozens of examples of instances where [the
mother] refused [the father] parenting time with J.F., talked negatively about [the father]
around J.F., interfered with J.F.'s phone calls with [the father], and did other things to
negatively impact their relationship." This part of the father's argument is irrelevant.
The court already found that the mother did not respect and appreciate that
relationship. Substantial competent evidence supports this finding. Also, this finding is
uncontested.
Substantial competent evidence also supports the lack of respect in the opposite
direction. In its written ruling, the trial court stated that the father "complains that Mother
does not communicate with him about minor details of [J.F.'s] everyday life." The court
also noted the following: "Father believes he is a better parent, with a better home life."
From the bench, the trial court explained the following to the father: "I just feel like you
can't leave her alone. You just nitpick everything she does." Giving an example, the court
stated that it was "just beyond reason" for the father to demand that the mother set up
FaceTime calls with J.F. every day. The court noted the attention span of a seven-year-
old, explaining that the mother may not be able to convince J.F. to stay on the phone with
her father. The court also mentioned the father's accusative tone when he blamed J.F.'s
dental problems on the mother letting her have sugary drinks. The court described this
27
assignment of fault as "an attack on her parenting ability." The court cited examples of
testimony from each parent that they met with difficulties from the other parent. The
record demonstrates that both parents have a history of noncooperation. So the trial
court's finding is supported by substantial competent evidence.
Did the Trial Court Abuse Its Discretion in Ordering That Residential Custody of J.F.
Remain with the Mother?
On appeal, the father argues that the trial court's decision that the mother would
keep residential custody of J.F. was based on errors of fact and law, went against the
express recommendation of the GAL and testimony of J.F.'s therapist, was arbitrary and
unreasonable, and was not in J.F.'s best interests.
In its written ruling, the court heavily referenced the testimony of the parents but
not the testimony of J.F.'s therapist, without explanation. The court did not find Rowley's
testimony unbelievable and did not find that it was sufficiently rebutted by evidence to
the contrary. In fact, no evidence contradicted Rowley's diagnoses of J.F., nor Rowley's
assessment of J.F.'s discomfort about moving away from Joe secretly. The court simply
did not acknowledge the repeated testimony from Rowley that J.F. was expected to keep
secrets in the mother's home and Rowley's testimony on the negative impact this would
have on a child.
The trial court described its reasoning on residential custody, stating the following:
"The factor that weighs most heavily in favor of maintaining the status quo with
residency in Kansas has to do with the inability of Mother, due solely to financial
constraints, to maintain the same quality of a relationship with [J.F.], since she must
travel to Pennsylvania to maintain that relationship."
28
As discussed in the preceding paragraphs, this finding was an error of fact because
it was not supported by substantial competent evidence. Further, the court did not explain
what caused it to disregard Butler's premise for recommending a change in residential
custody. Butler stated that the primary concern with J.F. residing with the mother is that
her home life lacks stability. The court specifically reiterated this point, telling the
mother, "I do think your living situation has been unstable." In short, the trial court's
ruling on residential custody seems rather inconsistent with the evidentiary substance of
the court’s findings. In this regard, a trial court's ruling may not be supported by
substantial competent evidence if it is inconsistent with the court's previous comments or
rationales. See In re Marriage of Lehner, No. 96,698, 2007 WL 1667115, at *10-11
(Kan. App. 2007) (unpublished opinion).
Here, the court's written findings of fact and conclusions of law did not
acknowledge the recommendation of the GAL. In fact, if the only document included in
the appellate record was the trial court's written order, then this court would not even
know that a GAL had been appointed in this case. Yet the GAL is a critical tool in child
custody determinations. "[T]he need for an independent guardian ad litem is particularly
compelling in custody disputes. Often, parents are pitted against one another in an
intensely personal and militant clash." Elrod, Reforming the System to Protect Children
in High Conflict Custody Cases, 28 Wm. Mitchell L. Rev. 495, 526 (2001) (quoting Short
ex rel Oosterhous v. Short, 730 F. Supp. 1037, 1039 [D. Colo. 1990]). Thus, given the
importance of the GAL, a court runs the risk of committing an error of fact by
disregarding the GAL's recommendations.
In sum, the trial court stated that J.F.'s living situation with her mother was
unstable, yet the trial court kept residential custody with her mother. A trial court's ruling
may not be supported by substantial competent evidence if it is inconsistent with the
court's previous comments or rationales. In re Marriage of Ziebart, No. 117,293, 2018
WL 1545786, at *13 (Kan. App. 2018) (unpublished opinion). The trial court also found
29
that the mother's financial constraints prevented her from exercising long-distance
parenting time. Both determinations were errors in fact that constitute an abuse of
discretion.
For the preceding reasons, we reverse the decision of the trial court and order that
primary residential custody of J.F. be awarded to her father, and we remand with
directions to the trial court to make all other orders that are not inconsistent with this
opinion.
Reversed and remanded with directions.
30