Petition for Writ of Certiorari — Nelson v. Nelson (No. 06-188)

Suprems Court, U.S.

wis YD FILED

Ae 199 Mies. 9005

Jn The OFFICE OF THE CLERK

Supreme Court of the Gnited States

*

RACHAEL NELSON,

N/K/A RACHAEL MARSH,

Petitioner,

V.

- BLAIN NELSON,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals Of

The State Of Kansas

PETITION FOR WRIT OF CERTIORARI

PAULA D. HOFAKER

LAW OFFICE OF

PAULA D. HOFAKER, P.A.

P.O. Box 482

213 W. Main Street

Logan, KS 67646

(785) 689-4606

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Is a waiver of the parental preference doctrine by a parent

binding when the parent is coerced or under duress, or

when the minor children do not consent to the waiver?

When a parent is told that social services will file a child

in need of care case unless her children are placed with a

third party and she waives her parental preference rights,

does coercion and duress exist which would void any such

waiver of the parental preference doctrine by the parent?

ae okt a ee

ll

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

Rachael Nelson, n/k/a Rachael Marsh, petitioner;

Blain Nelson, respondent;

Melissa McMullen, intervenor.

lil

TABLE OF CONTENTS

gg IRCA rs Snead IR nye: ne MOS Ha

PATTING CO THO POCO NGIIT 0ncecscscsecvscsecscosessicesasossossessarers

RETINA TEEN Seek ON eae a

RINNE MIN i icsiici chi nsecnieaptnndberbinas tie rnsaciietodasaanaees

0 SITS SETA ECL LE CL AT OIE IAT PTE

Constitutional Provision Involved ...............c.cc.cecceeeeeees

NN BN ASAT SE EAS EMIL RP REID PERE

Reasons for Granting the WYit..................:cccceessseeeceeeees

‘,

THE DECISION OF THE KANSAS COURT

OF APPEALS WHICH HELD THAT A

WAIVER OF THE PARENTAL PREFERENCE

DOCTRINE IS BINDING EVEN IF THE

PARENT IS UNDER THE THREAT OF HAV-

ING HER CHILDREN TAKEN AWAY FROM

HER BY SOCIAL SERVICES IF SHE

DOESN’T MAKE SUCH A WAIVER, IS AN

IMPORTANT ISSUE THAT HAS NOT BEEN

SETTLED BY THIS COURT, AND WILL

HAVE DEVASTATING CONSEQUENCES ON

PARENTS AND THEiR FUNDAMENTAL

RIGHT TO RAISE THEIR CHILDREN ...........

A. When a parent is told that social services

will file a child in need of care case unless

her children are placed with a third party

and she waives her parental preference

rights, coercion and duress exists which

would void a waiver of the parental pref-

erence doctrine by the parent.....................

or

iv

TABLE OF CONTENTS — Continued

Page

B. It is contrary to public policy and a viola-

tion of a child’s fourteenth amendment

rights to allow for a parent’s waiver of

the parental preference doctrine without

notice and consent of the minor child....... 12

BS REN NS rear er aA Rat Bi PED Oe a See RR 14

APPENDIX:

Kansas Court of Appeals Opinion (filed Jan. 13,

PEE ysiinstoivnachdlshs dace srcmidabadbuitenebnssdetedaabubecnuiasnians App. 1

Norton County, Kansas District Court Memoran-

dum of Decision (filed Jan. 20, 2005)..........0....00. App. 15

Kansas Supreme Court Notice Denying Petition for

Review (filed May 9, 2006) ..............ccccecceessesseeseeees App. 29

Partial Transcript of District Court Proceedings

CEO I. 5 OU iecibcnnntenindedeipicidchadesibininbntiacigeton App. 30

Vv

TABLE OF AUTHORITIES

Page

CASES

Alires v. McGehee, 277 Kan. 398, 85 P3d 1191

( NemIRE TREE GT SARC RI de Nee RE a Se ARN or oe IE MS 10, 12

Barker v. Kruckenberg, 33 Kan. App.2d 545, 105

ys 8. REESE UE IRS Ian on seaeta ipedatere Mace ey OMe tare 12

Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979)......... 14

Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658

| __ RSERREREEE SEES AUS SNe acc a spoon Se NE ee er PS 7

Continental Western Ins. Co. v. KFS, Inc., 30 Kan.

Ba Be TIGR, COPA FT HOOD) 0 cccctescesserscovseccevorsecstenenes 12 2

Ferguson v. Winston, 27 Kan. App.2d 34, 996 P.2d :

REET RRR tee Aaa, Wri Warne Boy ee Rr ee SRE ha oa 13

Garrity v. State of N.J., 385 U.S. 493, 87 S.Ct. 616,

SAMI MUNI 0 REED eis daicsiesci sis cans siteaiiteticaninignnadiboiehsecwn 11

Graves v. O’Brien, 111 Kan. 320, 207 P. 198 (1922).......... 1]

Hamtil v. J.C. Nichols Real Estate, 22 Kan. App.2d

a ee te ee iiss cacevcoccechsinekevssnnteasmubiaasianes: 10

Hastain v. Greenbaum, 205 Kan. 475, 470 P.2d 741

(SSE UIRSADIS RI Sr Ree Carn ak UE ee oe aro G eC 8

In the Matter of B.M.B., 264 Kan. 417, 955 P.2d

I a ae 9

In re Guardianship of Williams, 245 Kan. 814, 869

2S RRR SENT tl cn ee ae Oe ana 6, 7, 13

In re H.A.M., 25 Kan. App.2d 289, 961 P2d 716

II citahadichiasig ight baghesicinosisannal ce 620 oes ieee ete i a) 9

In re Kailer, 123 Kan. 229, 255 P. 41 (1927)..............00008 13

FESR SE ES eS CRORE eae IEEE Ge EOF eee eM eS Nan Mec eee ee a a

Vil

TABLE OF AUTHORITIES — Continued

Page

In re Marriage of Criqui, 14 Kan. App.2d 672, 798 -

Sa I ROE ice dicesiicescidsonsehieceacdcia bectania Gacetslapacie psc cindy 7

In re Marriage of Schoby, 269 Kan. 114, 4 P.3d 604

2, RD ete e PNT ACE Ne NU LE ONO De or Lee aT RE NE 14

Londerholm v. Unified School Dist. No. 500, 199

Fiat. SIZ, 4O0 FA TSG (IGF) vvcvecccccccvvescscsssescesicsccevonceess 9

Oubre v. Entergy Operations, Inc., 522 U.S. 422,

SE Rs Be Cae switched cies 10

Peck v. Horst, 175 Kan. 479, 264 P.2d 888 (1953)....... 12,13

Petty v. City of El Dorado, 270 Kan. 847, 19 P.3d

BIE EE wisctirbctciastedeg shank cntomsobccdabaianienbidaacuadesiein 13

Ready Mix Concrete Co. v. N.L.R.B., 81 F.3d 1546

tas peciiaiceiannaielescecinscratanhateais ise 9

Swarens v. Swarens, 78 Kan. 682, 97 P. 968 (1908)........... 7

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147

See OP CE said victosacoendvvestncascoaieubolesetsnicieammmeae 4,6

U.S.D. No. 233 v. Kansas Ass’n of American Educa-

tors, 275 Kan. 313, 64 P.3d 372 (2003)...........cccccccccesccocee 8

UNITED STATES CONSTITUTION

RI TRY seis tecnisktcicodentncuiiisttadccpdapennctiod 1, 5,6, 12, 13

OTHER AUTHORITIES

42 AM. JUR. 2D Infants § 161 (2006)............... eee 14

. *SINIONS BELOW

The opinion u1 the Kansas Court of Appeals is re-

ported at 34 Kan. App.2d 879, 125 P.3d 1081 (2006) and is

reprinted in the Appendix at 1. By order filed May 9, 2006,

the Kansas Supreme Court denied the petition for review,

as seen in the Appendix at 29.

&

v

JURISDICTION

On January 13, 2006 the Kansas Court of Appeals

filed its decision. On February 13, 2006, a Petition for

Review was timely filed with the Kansas Supreme Court.

On May 9, 2006, the Petition for Review was denied by the

Kansas Supreme Court. This petition for certiorari was

timely filed within ninety (90) days of that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

+

CONSTITUTIONAL PROVISION INVOLVED

The four’senth amendment to the United States

Constitution.

.

STATEMENT OF THE CASE

The Petitioner Rachael (Nelson) Marsh and the

Respondent Blain Nelson are the biological parents of a

daughter born in 1995 and a son born in 2002. The inter-

venor in this case is Melissa McMullen, the paternal aunt

of the children. In December 2003, Rachael filed for

divorce. On March 30, 2004, during the pendency of the

divorce, Rachael and Blain signed a document in front of

the magistrate judge entitled, “Agreed Custody Order,”

wherein it states that custody of the two minor children

“shall be placed with a third party, their aunt, Melissa

McMullen.” Appendix at 3.

The order further states,

“The parties agree that the third party place-

ment is in the best interest of the minor children

and shall continue until such time as there is a

material change in circumstance, as defined by

Kansas Statute, the cases decided by the Court of

Appeals and Kansas Supreme Court, and each

waive the claim of parental preference as to this

placement during the minority of the children.

Each party acknowledges that they have been

advised by their counsel of the Kansas Constitu-

tional provisions concerning parental preference

towards their children and they each acknowl-

edge that the facts and circumstances warrant

the third party placement and that the third

party placement is in the best interest of the mi-

nor children.” Appendix at 4.

The parties agreed to “submit this plan to the District

Court for final approval as their custody plan.” On May 10,

2004, the parties were divorced and Agreed Custody

Orders were signed by the district court judge. The Agreed

Custody Orders signed on May 10, 2004 were basically a

duplicate of the temporary orders signed by the magistrate

judge on. March 30, 2004. Appendix at 4. During the

divorce hearing, Rachael and Blain acknowledged to the

court that they understood all the terms of the custody

agreement. Appendix at 9.

A Permanent Parenting Plan was also signed by the

parties and the court. In the Permanent Parenting Plan, it

states, “The parents have agreed at this time to place

custody of the minor children with Melissa McMullen.” It

further states that custody is granted to Melissa

McMullen because,

“SRS has begun an investigation into each par-

ent and to avoid any further issues, the parties

are agreeing to custody with Melissa McMullen

until the court finds a material change in cir-

cumstance warranting a change thereto.” Appen-

dix at 10.

On September 15, 2004, Rachael filed for custody of

the children to change to her. Blain opposed custody being

changed to Rachael. A Motion for Leave to Intervene was

filed by the aunt, Melissa McMullen. Appendix at 4 and 5.

A pretrial hearing was held on January 7, 2005,

wherein the validity of the waiver of the parental prefer-

ence doctrine was considered by the court. Rachael testi-

fied that she entered into the custody agreement placing

her children with their aunt Melissa because she was told

by her attorney, the aunt, and the aunt’s mother that if

she didn’t place the children with the aunt, SRS would file

a child in need of care case, and take the children and

place them in foster care with strangers. It was her under-

standing that the placement with the aunt would only be

temporary until she got her life in order. Appendix at 5.

Rachael further testified that she signed the agree-

ment and thought she understood what was entailed in

waiving the parental preference doctrine. She testified

that she was told by her attorney that she had to waive

the parental preference doctrine in order to allow the aunt

4

to have the children temporarily. Appendix at 30. Rachael

and her mother testified that Rachael’s mother was

present when she discussed this matter with her attorney

and with the aunt. Rachael and her mother testified that

the aunt told Rachael that if-she did not let her have the

kids temporarily, that SRS was in fact going to come and

get the kids. Appendix at 8. At the time Rachael waived

the parental preference doctrine, she did not believe it was

a “big deal.” Appendix at 5 and 30. Neither the aunt nor

the aunt’s mother ever took the stand to contradict any of

the testimony given by Rachael.

At the hearing wherein Blain opposed custody chang-

ing to Rachael, Blaine’s attorney acknowledged that

Rachael had been told, “that if you did not agree, you and

Blain, to a third-party placement, that SRS was in fact

going to file a child in need of care petition on the chil-

dren.” Appendix at 32.

In a memorandum decision, the district court found

that the parental preference doctrine as set out in Troxel v.

Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49

(2000), did not apply because there had been a valid

waiver of the parental preference doctrine by Rachael. The

_court further found that the waiver by Rachael had know-

ingly and voluntarily been done without duress. Hence,

Rachael would be required to show that a material change

in circumstances had occurred that would warrant a

change in custody. Appendix at 26 and 27.

At the final hearing on February 22-24, 2005, the

district court found that Rachael had failed to demonstrate

that a material change of circumstances had occurred. The

court further found that it was in the children’s best

interest to stay with the aunt. Appendix at 6. “

+)

- On January 13, 2006, the Kansas Court-of Appeals

agreed with the findings made by the district court and

affirmed the decision. Appendix at 1. In addressing

Rachael’s argument that her waiver of the parental

preference doctrine without notice to and consent of her

minor children is contrary to public policy anda violation

of the children’s rights under the fourteenth amendment

to the U.S. Constitution, the court stated, “Child custody is

not a right which belongs to a child,” and the appointment

of a guardian ad litem is not mandated under these

circumstances. Appendix at 12. On May 9, 2006, the

Kansas Supreme Court denied Rachael’s petition for

review. Appendix at 29.

4

v

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE KANSAS COURT OF

APPEALS WHICH HELD THAT A WAIVER OF

THE PARENTAL PREFERENCE DOCTRIN. IS

BINDING EVEN IF THE PARENT IS UNDER

THE THREAT OF HAVING HER CHILDREN

TAKEN AWAY FROM HER BY SOCIAL SER-

VICES IF SHE DOESN'T MAKE SUCH A

WAIVER, IS AN IMPORTANT ISSUE THAT HAS

NOT BEEN SETTLED BY THIS COURT, AND

WILL HAVE DEVASTATING CONSEQUENCES

ON PARENTS AND THEIR FUNDAMENTAL

RIGHT TO RAISE THEIR CHILDREN.

Appellant requests the United States Supreme Court

review the decision of the Court of Appeals of the State of

Kansas, dated January 13, 2006, which states that a

waiver of parental preference rights is enforceable against

the parent even when the parent is coerced and under

duress due to the belief that SRS is going to remove the

children and place them with strangers in foster care if the

parent doesn’t make such a waiver. The decision of the

Court of Appeals is a misrepresentation of case law and is

contrary to public policy. This ruling by the Kansas Court

of Appeals encourages agencies and attorneys to coerce

parents to waive their parental preference rights at a time

when they are most vulnerable to manipulation, under

duress and worried that if they don’t do so, their children

will be permanently removed from their custody.

A. When a parent is told that social services

will file a child in need of care case unless

her children are placed with a third party

and she waives her parental preference

rights, coercion and duress exists which

would void a waiver of the parental prefer-

ence doctrine by the parent.

The fourteenth amendment provides that no State

shall deprive any person of life, liberty, or property, with-

out due process of law. U.S. CONST. amend. XIV. The

interest of parents in the care, custody, and control of their

children — to establish a home and bring up children,

control their education, nurture them and direct their

destiny, and prepare them for additional obligations — is a

fundamental liberty interest protected by the fourteenth

amendment. Troxel v. Granville, 530 U.S. 57, 120 S.Ct.

2054, 147 L.Ed.2d 49 (2000).

Time and time again, Kansas Appellate Courts have

held that parental rights, not the child’s best interests,

control in custody disputes between parents and non-

parents where the parent is fit. In re Guardianship of

Williams, 245 Kan. 814, 819, 869 P.2d 661, 665 (1994).

The decision in Williams expressly overruled, Jn re

Marriage of Criqui, 14 Kan. App.2d 672, 798 P.2d 69

(1990). Similar to the facts presented here, the mother in

Criqui sought restoration of custody four (4) years after

executing a document captioned “Parental Consent” and

approving an “Agreed Order Cha zing Custody” entered

by the court in which she acknowledged that it was in the

best interests of her children that their full care, custody,

and control be granted to their paternal aunts. At the

time, the Kansas Court of Appeals determined that the

express agreement of the parties took precedence over

parental preference. In Williams, the Kansas Supreme

Court pronounced Criqui clearly erroneous, concluding

that the Court of Appeals had overlooked a long line of

Kansas cases to the contrary when it determined that the

parental preference doctrine did not apply when the

parent seeking to regain custody had earlier relinquished

legal custody by agreement. See Williams, 254 Kan. at

822-26, 869 P.2d at 667-69 (discussing Christlieb v. Chris-

tlieb, 179 Kan. 408, 295 P2d 658 (1956); Swarens uv.

Swarens, 78 Kan. 682, 97 P. 968 (1908).

The court has held the parental preference doctrine

controls against nonparents who have no permanent or

legal right to the child’s custody. The “legal right” referred

to has been defined as a permanent legal relinquishment

by adoption, severance of parental rights, or other appro-

priate proceedings terminating the parent-child relation-

ship. The “legal right” referred to does not include court

orders granting custody in divorce, guardianship, or

similar proceedings where the parent-child relationship is

not severed or terminated and the order is not permanent

but one subject to reconsideration, modification, or termi-

nation by the court. Williams at 828.

In the present case, the Kansas Court of Appeals held

that substantial competent evidence existed that sup-

ported the district court’s finding that Rachael knowingly

and voluntarily waived the parental preference doctrine.

The Kansas Court of Appeals failed to consider the type of

coercion that was used to get such a waiver, and the

constitutionally significant duress that Rachael was under

when she waived her parental preference rights.

The children could have been placed with the aunt or

even another relative without the necessity of waiving

these rights. But instead of this occurring, Rachael’s own

attorney, the aunt, and the aunt’s mother, coerced Rachael

into waiving her parental preference rights, saying that it

was necessary to waive these rights to prevent the chil-

dren from being placed with strangers. Rachael did not

want her children placed with strangers; what mother

would? Such tactics define duress, coercion, and deception.

None of these tactics should be condoned by any court.

However, this decision by the Kansas Court of Appeals

does just that. 7

Whether alleged facts pleaded as constituting duress

existed, is a question of fact. Whether the alleged facts are

enough to constitute duress is a question of law. Hastain v.

Greenbaum, 205 Kan. 475, 482, 470 P.2d 741 (1970). In

’ Kansas where the trial court has made findings of fact and

conclusions of law, the appellate court is to determine

whether the trial court’s findings of fact are supported by

substantial competent evidence and whether the findings

are sufficient to support the trial court’s conclusions of law.

U.S.D. No. 233 v. Kansas Ass’n of American Educators,

275 Kan. 313, 318, 64 P.3d 372 (2003). Substantial evidence

has been defined as evidence which a reasonable person

might accept as being sufficient to support a conclusion. Jn

9

re H.A.M., 25 Kan. App.2d 289, 296, 961 P.2d 716 (1998).

The facts in this case constitute significant coercion and

duress, and do not support the trial court’s conclusions of

law.

In order for a waiver of a constitutional right to be

effective, it must be shown that the person knowingly and

intelligently waived that right and that the person fully

comprehended the significance of those rights and the

consequences of waiving them. In the Matter of B.M.B.,

264 Kan. 417, 955 P.2d 1302 (1998).

Rachael testified that she approved the Agreed Cus-

tody Order under the belief that SRS was going to remove

the children from her and her husband’s (now ex-husband)

care and custody if the children remained with either of

them. Rachael testified that she was told this by her own

attorney, the aunt, and the aunt’s mother. Rachael’s

mother testified that she was present when Rachael was

told this by her attorney, the aunt, and the aunt’s mother.

Rachael testified that she felt she had no other option and

understood that the placement with the aunt would only

be temporary until she got her life in order. Neither the

aunt nor the aunt’s mother ever took the stand to contra-

dict that they provided such information to Rachael. Since

the aunt failed to offer evidence or produce witnesses

within her power to produce to contradict the testimony of

Rachael, an inference arises that the evidence or testimony

which would have been produced would have been adverse

to her position. Londerholm v. Unified School Dist. No. 500,

199 Kan. 312, 430 P.2d 188 (1967); Ready Mix Concrete Co.

v. N.L.R.B., 81 F.3d 1546 (10th Cir. 1996).

At the hearing; the Respondent’s own attorney, who

was opposed to the change in custody, acknowledged

10

during questioning of Rachael, that Rachael had been told

that if she did not agree to a third-party placement, that

SRS was in fact going to file a child in need of care petition

on the children. However, this was not true. Rachael later

learned that she entered into the agreement and waived

her parental preference rights based upon false informa-

tion given to her by her attorney, the aunt and the aunt’s

mother. Rachael learned that SRS did not have plans for

such a removal and was going to leave it up to the county

attorney to decide what to do, if anything. When the social

worker in charge of the case was specifically asked what

would have happened with these kids if they hadn’t gone

to the aunt, she stated, “Well, I’m not sure.”

In Alires v. McGehee, 277 Kan. 398, 409, 85 P.3d 1191,

1198 (2004), the court stated,

“competent parties may make contracts on their

own terms, provided they are neither illegal nor

contrary to public policy, and that in the ab-

sence of fraud, mistake, or duress a party who

has fairly and voluntarily entered into such a

contract is bound.’” Jd., 277 Kan. at 409, 85 P.3d

at 1198 (quoting Hamtil v. J.C. Nichols Real Es-

tate, 22 Kan. App.2d 809, 923 P.2d 513 (1996).

(emphasis added).

This Court has held that agreements which are

tainted by mistake, duress, or fraud are voidable if the

innocent party so chooses. Oubre v. Entergy Operations,

Inc., 522 U.S. 422, 118 S.Ct. 838 (1998). In the present

case, Rachael was under duress and was coerced into

waiving the parental preference doctrine and entering into

the agreement- Case law states that if this has occurred,

the party did not fairly and voluntarily enter into the

‘agreement. The fact that Rachael did not fully comprehend

11

the significance of waiving the parental preference doc-

trine can be seen in her responses to questioning by the

attorney for the Respondent. When Rachael was ques-

tioned as to why she thought waiving the parental prefer-

ence doctrine wasn’t any big deal, she responded by

stating that it was explained to her “that it was just

something we had to do to let Missy have them, the

children, temporarily.”

The Court discussed duress in Garrity v. State of N.dJ.,

385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), stating:

“Where the choice is ‘between the rock and the

whirlpool,’ duress is inherent in deciding to

‘waive’ one or the other. It always is for the inter-

est of a party under duress to choose the lesser of

two evils. But the fact that a choice was made ac-

cording to interest does not exclude duress. It is

the characteristic of duress properly so called.”

Rachael felt she had no other alternative but to place

her children with a third party and waive the parental

preference doctrine verses having the children taken from

her and Blain’s custody and placed with strangers. A

voluntary, knowing, and intelligent waiver of the parental

preference doctrine did not take place. Execution of an

agreement under such circumstances, particularly when

no basis exists, constitutes duress, warranting that the

agreement be set aside. See Graves v. O’Brien, 111 Kan.

320, 207 P. 198 (1922).

12

B. It is contrary to public policy and a viola-

tion of a child’s fourteenth amendment

rights to allow for a parent’s waiver of the

parental preference doctrine without- no-

tice and consent of the minor child.

When the temporary and the original custody agree-

ments were reached between the parties and accepted by

the court, no notice and consent of the children was given,

and no guardian ad litem was appointed. The Kansas

Court of Appeals held, “There is no case law or statutory

mandate which compels the appointment of a guardian ad

litem for the minor children under the circumstances

present here.” Further, the court held, “Child custody is

not a right which belongs to a child.”

The question as to whether a parent can waive the

parental preference doctrine without notice and the

consent of the children is a question of law in which the

appellate courts have unlimited review. Barker v. Kruck-

enberg, 33 Kan. App.2d 545, 105 P.3d 273 (2005). Whether

enforcement of an agreement is contrary to public policy is

a question of law in which unlimited appellate review

exists. Continental Western Ins. Co. v. KFS, Inc., 30 Kan.

App.2d 1262, 1258, 59 P.3d 1 (2002). The court has stated

that parties may entered into binding agreements with

their own terms, so long as they are not contrary to public

policy that is “well defined and dominant.” Id. at 1269;

Alires, 277 Kan. at 409, 85 P.3d at 1198 (2004).

It’s true that an agreement is not necessarily against

public policy because it waives a constitutional right.

Normally, a person may agree to waive a constitutional

right unless a question of public policy is involved. Peck

v. Horst, 175 Kan. 479, 486, 264 P.2d 888 (1953). “A con-

tract waiving constitutional or statutory rights or an

13

established rule of law is not void on the ground that it is

against public policy unless it is injurious in some way to

the interests of society.” Jd. at 487 (emphasis added). The

public policy of a state is the law of that state as found in

its constitution, its statutory enactments, and its judicial

decisions; when the performance, formation, or object of an

agreement is contrary to public policy, the contract is

illegal. Petty v. City of El Dorado, 270 Kan. 847, 853-54, 19

P.3d 167, 172 (2001). Any purported waiver of parental

preference, particularly without consent on the child’s

behalf, is contrary to the public policy of our country and

should not be enforced.

“At the root of the parental preference doctrine is the

recognition in Kansas that public policy deems the doc-

trine as being in the best interests of the child.” Williams

at 822. Rachael’s children have a fundamental liberty

interest, protected by the fourteenth amendment, to be

raised by their Mother, as well as their father. The rights

and interest of a child in his or her parentage — including

child support, inheritance rights, family bonds, and

accurate identification of his or her paternity — are due

process rights which cannot be terminated or affected

without notice and an opportunity to be heard. Ferguson v.

Winston, 27 Kan. App.2d 34, 39, 996 P.2d 841, 846 (2000).

In Kansas, the parental preference doctrine is rooted in

the recognition that public policy deems maintenance of

the familial relationship as being in a child’s best inter-

ests. Williams, 254 Kan. at 822, 869 P.2d at 666.

“(T]he welfare of children is always a matter of para-

mount concern, but the policy of the state proceeds on the

theory that their welfare can best be attained by leaving

them in the custody of their parents and seeing to it that

the parent’s right thereto is not infringed upon or denied.”

Kailer, 123 Kan. 229,__, 255 P. 41, 42. Further, when the

14

right belongs to the child, it cannot be terminated, even if

by parental agreement. Jn re Marriage of Schoby, 269 Kan.

114, 117, 4 P.3d 604, 607 (2000) (quoting Brady v. Brady,

225 Kan. 485, 592 P.2d 865 (1979)).

When a case involves the unrepresented interests of

an infant, the court has a duty to appoint a guardian ad

litem or next friend to assure the protection of the child’s

interests. 42 AM. JUR. 2D Infants § 161 (2006). In the

present case, no guardian ad litem approved the Agreed

Order on the children’s behalf, and accordingly, the Court

cannot enforce any parental preference waiver without

violating the children’s due process rights and violating

public policy that is “well defined and dominant.” Such an

issue has not been addressed by this Court, yet it affects

the fundamental liberty interest of children everywhere.

Because of its importance, the issue needs to be settled by

this Court.

+

CONCLUSION

Based on the above arguments, the Petitioner re-

quests the Supreme Court of the United States grant her

Petition for a Writ of Certiorari and vacate the Kansas

Court of Appeals judgment.

Respectfully submitted,

PAULA D. HOFAKER

LAW OFFICE OF PAULA D. HOFAKER, P.A.

P.O. Box 482

Logan, KS 67646

(785) 689-4606

Attorney for Petitioner

Rachael (Nelson) Marsh

App. 1

No. 94,443

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS

In the Matter of the Marriage of

RACHAEL NELSON, n/k/a RACHAEL MARSH,

Appellant,

and

BLAIN NELSON,

Appellee.

MELISSA McMULLEN,

Intervenor/Appellee.

SYLLABUS BY THE COURT

Whether a child custody order is to be changed or

modified rests with the sound judicial discretion of the

trial court.

2.

In a custody modification proceeding, a trial court has

the advantage of seeing the witnesses and parties, and its

judgment may not be disturbed in the absence of an abuse

of discretion.

3.

Basic rights of a parent to the care, custody, and

control of his or her children are fundamental rights

protected by the Fourteenth Amendment Due Process

Clause. Parents have a constitutionally protected right to

raise their children as they choose without excessive

interference from the State.

App. 2

The parental preference doctrine is a firmly estab-

lished rule in this state that a parent who is able to care

for his or her children and desires to do so and who has

not been found to be an unfit person to have their custody

in an action or proceeding where the question is in issue,

is entitled to the custody of his or her children as against

others who have no permanent or legal right to their

custody.

5.

A parent may waive his or her parental preference

rights.

6.

When determining whether parental rights are

knowingly waived, the appellate court must determine

whether there is substantial competent evidence to sup-

port the district court’s ruling.

7.

There is no case law or statutory mandate which

compels the appointment of a guardian ad litem for minor

children under the circumstances of this case.

8.

K.S.A.2004 Supp. 60-1610 controls child custody and

residency. The statute indicates the court may change a

prior custody order upon a showing of a material change in

circumstances. A material change of circumstances has no

precise definition, but it requires consideration of a variety

of factors and circumstances and must be of a substantial

App. 3

and continuing nature as to make the terms of the initial

decree unreasonable.

Appeal from Norton District Court; WILLIAM B.

ELLIOTT, judge. Opinion filed January 13, 2006. Af-

firmed.

‘Paula D. Hofaker, of Logan, for appellant.

Charles E. Worden, of Worden Law Office, of Norton,

for appellee.

Daniel C. Walter, of Ryan, Walter & McClymont,

Chartered, of Norton, for intervenor/appellee.

Before GREEN, P.J., LARSON, S.J., and WAHL, S.J.

WAHL, J.: Rachael and Blain Nelson were married on

May 8, 1993. A daughter, C.N.N., was born in 1995, and a

son, N.R.N., was born in 2002. Rachael and Blain sepa-

rated frequently during the marriage and on December 23,

2003, Rachael filed for divorce. The parties, each repre-

sented by counsel, entered into agreed temporary orders

which provided in relevant part that the parties would

share equal time with the children and that Rachael

would not allow the children to have contact with her

boyfriend, Doug Marsh. Doug was charged in 1986 with

engaging in sexually inappropriate contact with a 4-year-

old boy and apparently entered into a diversion agreement

as a result of the incident.

On March 9, 2004, Blain filed a motion for temporary

custody, alleging that Rachael had violated the agreed

temporary orders by refusing to allow him parenting time

and by allowing the children to have contact with Doug.

On March 30, 2004, a hearing was held wherein the

parties signed custody orders agreeing that third-party

App. 4

placement with Blain’s sister, Melissa McMullen, was in

the best interests of the children. The agreed custody

orders also provided that the children were to have no

contact with Doug. The agreed custody orders provided:

“The parties agree that the third party place-

ment is in the best interest of the minor children

and shall continue until such time as there is a

material change in circumstance, as defined by

Kansas Statute, the cases decided by the Court of

Appeals and Kansas Supreme Court, and each

waive the claim of parental preference as to this

placement during the minority of the children.

Each party acknowledges that they have been

advised by their counsel of the Kansas Constitu-

tional provisions concerning parental preference

towards their children and they each acknowl-

edge that the facts and circumstances warrant

the third party placement and that the third

party placement is in the best interest of the mi-

nor children.”

The agreed custody orders were approved by the district

court and were signed by counsel and by Rachael and

Blain.

On May 10, 2004, the divorce decree was filed. At this

time, the parties also entered into a property settlement

agreement and a permanent parenting plan which were

approved by the district court and signed by both parties,

further memorializing the parties’ agreement to place

custody of the children with Melissa.

Soon thereafter, Rachael and Doug married. On

September 15, 2004, Rachael filed a motion for change of

custody which included a request to terminate the condi-

tion that the children not be around Doug. In the motion,

App. 5

Rachael argued that she was able to provide a stable

environment for the children and that placement with her

was in their best interests. Rachael also alleged that since

the agreed custody orders had been entered into, she had

completed a favorable parenting evaluation and that Doug

had also completed an evaluation which indicated that

there was no evidence of sexual deviance. Blain did not

support Rachael’s motion for a change in custody.

Melissa moved to intervene in the matter and also

moved to have the action dismissed, contending that

Rachael had failed to state facts which, if true, would

demonstrate a material change of circumstances such that

it was in the best interests of the children to change -

custody. The district court granted Melissa’s motion to

intervene but denied the motion to dismiss, as the court

wished to further examine the parties’ waiver of the

parental preference doctrine. The court reserved the right

to reconsider the motion at trial after receipt of all or a

portion of the evidence.

On January 7, 2005, a pretrial hearing was held

regarding the parties’ waiver of the parental preference

doctrine. At the hearing, Rachael testified that she entered

into the custody agreement and waived the parental

preference doctrine only because she thought that SRS

was going to take the children and place them in foster

care. Rachael claimed that she did not think that waiving

the parental preference doctrine was a “big deal” at the

time because she believed the arrangement to be tempo-

rary.

Following testimony, the district court concluded that

the parental preference doctrine as set out in Troxel v.

Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054

App. 6

(2000), did not apply to this case because Rachael and

Blain waived the doctrine when they agreed to grant

custody to Melissa. The court held that Rachael had not

been under duress and that she had knowingly and

voluntarily waived her parental rights. The court noted

that under the “parental presumption” doctrine, which

stands for the notion “that parents act in the best interests

of their children; as long as a parent is fit, there ‘will

normally be no reason for the state to inject itself into the

private realm of the family.’” The court held that because

there had been no showing of unfitness in the present

case, it would be presumptuous, absent a material change

in the circumstances, for the court “to inject itself into the

private realm of the family and question the ability of

Rachael Nelson Marsh and Blain Nelson to make a deci-

sion that was in the best interest of their minor children.”

Melissa renewed her motion to dismiss Rachael’s

motion for change of custody, alleging that there had been

no prima facie showing of a material change in circum-

stances. The court denied the motion in an attempt to

allow the parties to fully address all issues in the case.

On February 22-24, 2005, a final hearing on the

matter was held to determine whether there had been a

material change in circumstances sufficient to justify a

change in custody. Following testimony, Melissa moved for

a directed judgment. The district court granted the mo-

tion, finding that Rachael had failed to demonstrate a

material change of circumstances such that it was in the

best interests of the minor children to change custody. The

court ordered that the current parenting plan was to

remain in effect and denied Rachael’s request to vacate its

previous order prohibiting the children from having any

contact with Doug.

App. 7

Rachael appeals, contending the district court erred in

denying her motion to change custody. She alleges that the

parental preference doctrine as set forth in In re Guardi-

anship of Williams, 254 Kan. 814, 869 P.2d 661 (1994),

requires the district court to award custody of the children

to her.

Whether a child custody order is to be changed or

modified rests with the sound judicial discretion of the

trial court. In re Marriage of Rayman, 273 Kan. 996, 999,

47 P.3d 413 (2002). In a custody modification proceeding, a

trial court has the advantage of seeing the witnesses and

parties, and its judgment may not be disturbed in the

absence of an abuse of discretion. Talbot v. Pearson, 32

Kan. App. 2d 336, 342-43, 82 P.3d 854 (2004). “Judicial

discretion is abused only when no reasonable person would

take the view adopted by the trial court. [Citations omit-

ted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan.

20, 44, 59 P.3d 1003 (2002).

Basic rights of a parent to the care, custody, and

control of his or her children are fundamental rights

protected by the Fourteenth Amendment Due Process

Clause. The United States Supreme Court had long

recognized that parents have a constitutionally protected

right to raise their children as they choose without exces-

sive interference from the State. See, e.g., Troxel, 530 U.S.

at 65-66. The parental preference doctrine

“is a firmly established rule in this state that a

parent who is able to care for his or her children

and desires to do so, and who has not been found

to be an unfit person to have their custody in an

action or proceeding where that question is in is-

sue, is entitled to the custody of his or her chil-

dren as against grandparents or others who have

App. 8

no permanent or legal right to the children’s

custody, even though at the time the natural

parent seeks their custody such grandparents or

others are giving the children proper and suit-

able care and have acquired an attachment for

them.” Williams, 254 Kan. 814, Syl. { 2.

Rachael contends that, as a fit parent, she is entitled

to custody over Melissa, a nonparent, based on the holding

of Williams. Her argument ignores two important points.

First, Blain supports the district court’s ruling and prefers

that custody remain with Melissa. Under K.S.A. 2004

Supp. 60-1610(a)(3)(B), “[nleither parent shall be consid-

ered to have a vested interest in the custody or residency

of any child as against the other parent... .” Rachael is

not automatically entitled to custody based on the holding

in Williams. Most importantly, the Williams court did not

consider a factual situation in which both parents had

waived the parental preference doctrine. Here, the district

court held that Rachael had expressly waived her parental

preference rights.

Clearly, a parent may waive the parental preference

doctrine. “It is beyond argument that ‘all constitutional

rights may be freely and voluntarily waived.” In re

Habeas Corpus Application of Tolle, 18 Kan. App. 2d 491,

496, 856 P.2d 944 (1993). The district court did not err in

determining that the parental preference doctrine could be

waived.

Rachael argues she did not knowingly waive her

constitutional parental preference rights, claiming that

she was under duress when she waived the rights. She

contends she approved the agreed custody order only

because she believed that SRS was going to remove the

App. 9

children from her and Blain’s care and custody if the

children remained with either one of them.

When determining whether rights are knowingly

waived, this court determines whether there is substantial

competent evidence to support the district court’s ruling.

State v. Donesay, 265 Kan. 60, 68, 959 P.2d 862 (1998). The

waiver of a statutory right involving the protected inter-

ests of parental rights should appear distinctly on the

record. In re H.D.W., No. 90,193, unpublished opinion filed

February 13, 2004.

The record reflects that Rachael knowingly and

voluntarily waived the parental preference doctrine. The

decision to place custody of the children with Melissa was

made in March 2004 when the parties signed the agreed

custody orders. Those orders stated that the parties

waived the parental preference doctrine and acknowledged

that they had been advised by counsel “of the Kansas

- Constitutional provisions concerning parental preference”

and “that the facts and circumstances warrant the third

party placement and that the third party placement is in

the best interest of the minor children.” The signed per-

manent parenting plan was presented to the court on May

10, 2004. A transcript of the hearing on that date contains

Rachael’s testimony in response to questions by her

attorney as to her understanding and agreement. It

contains an in-depth questioning by the court as to her

understanding and approval of the custody agreement. It

contains testimony by Blain while Rachael was in the

courtroom. Rachael testified that she understood it all and

agreed to all the provisions. The parties’ property settle-

ment agreement referred to the parenting plan and

custody order “that provides for third party custody of the

minor children.” :

App. 10

The decision to place custody of the children with

Melissa was originally made in March 2004 when the

parties entered into the agreed custody orders, and the

permanent parenting plan was not adopted by the court

until 2 months later. During this time, Rachael had the

benefit of counsel, was questioned by her attorney and the

court on the record, and was present in the courtroom

while Blain was questioned by his attorney. Clearly,

Rachael expressly waived her constitutional parental

preference rights.

Also, the record does not support Rachael’s argument

that she was wrongly informed that SRS was going to

remove the children from the home if they remained with

her or Blain. The permanent parenting plan provided that

“SRS has begun an investigation into each parent and to

avoid any further issues, the parties are agreeing to

custody with Melissa McMullen until the court finds a

material change in circumstances warranting a change

thereto.”

There is substantial competent evidence to support

the district court’s finding that Rachael knowingly and

voluntarily waived the parental preference doctrine.

Rachael also contends that her waiver of the parental

preference doctrine without notice to and consent of her

minor children is contrary to public policy and a violation

of the children’s rights under the Fourteenth Amendment

to the United States Constitution. Specifically, she con-

tends that the waiver was not valid because a guardian ad

litem was not appointed to approve the custody orders on

behalf of the children.

App. 11

Rachael never raised this issue before the district

court, nor did she request a guardian ad litem be ap-

pointed for her children. While the district court did raise

the possibility of appointing a guardian ad litem during

the January 7, 2005, hearing, one was never appointed

and there is no indication in the record that Rachael ever

objected to the district court’s failure to do so. As such, any

error could be considered invited by Rachael. “A party may

not invite error and then complain of that error on appeal.

[Citation omitted.]” Butler County R.W.D. No. 8 v. Yates,

275 Kan. 291, 296, 64 P.3d 357 (2003).

In order for this issue to be laid to rest, we shall

briefly consider its merits, but Rachael still is not entitled

to relief. She cites Ferguson v. Winston, 27 Kan. App. 2d

34, 996 P.2d 841 (2000), for the proposition that the rights

and interests of a child in his or her own parentage are

due process rights which cannot be terminated or affected

without notice and an opportunity to be heard. Rachael’s

‘reliance on Ferguson is misplaced. There, the plaintiff

brought an action to determine the parentage of an adult

child, and the adult child was not made a party to the

action. The trial court ordered a blood test without holding

a Ross hearing and determined on the basis of the blood

test alone that the plaintiff was not the child’s father. This

court reversed the ruling, questioning “the advocacy of

determining the parent of a child who becomes an adult

during the course of the litigation, who is not a party of

the action and who is not represented by a guardian ad

litem.” 27 Kan. App. 2d at 35-36. The Ferguson court

limited its ruling:

“We do not, by this order, mean to infer that a

child must always have an independent attorney

and must always be independently made a party

App. 12

to a parentage action. We do hold, however, that

when a child is an adult, he or she must be made

a party to the action and must be represented by

counsel before his or her parentage is deter-

mined.” 27 Kan. App. 2d at 40.

In the present case, the children were not adults and

the issue did not involve determining either child’s par-

entage.

Rachael also improperly relies on Jn re Marriage of

Schoby, 269 Kan. 114, 4 P.3d 604 (2000), for the proposi-

tion that when a right belongs to a child, it cannot be

terminated even by parental agreement. Schoby involved a

dispute over child support, which is a right of the child.

269 Kan. 114, Syl. 4 1. Child custody is not a right which

belongs to a child. Further, the appointment of a guardian

ad litem is not addressed in Schoby.

There is no case law or statutory mandate which

compels the appointment of a guardian ad litem for minor

children under the circumstances present here.

Lastly, we must determine whether the district court

erred in finding that Rachael failed to show a material

change in circumstances sufficient to justify changing the

custody of the children.

K.S.A. 2004 Supp. 60-1610 controls child custody and

residency. The court may change a prior custody order

upon a showing of “a material change in circumstances.”

K.S.A. 2004 Supp. 60-1610(a)(2)(A). “A material change of

circumstances” has no precise definition, but it requires

consideration of a variety of facts and circumstances.

Johnson v. Stephenson, 28 Kan. App. 2d 275, 280, 15 P.3d

359 (2000), rev. denied 271 Kan. 1036 (2001). A material

change in circumstances must be of such a substantial and

App. 13

continuing nature as to make the terms of the initial

decree unreasonable. 28 Kan. App. 2d at 280.

In child custody cases, a court’s paramount considera-

tion is always the welfare and best interests of the child.

K.S.A. 2004 Supp. 60-1610(a)(3); In re Marriage of Whipp,

265 Kan. 500, 506, 962 P.2d 1058 (1998). Additionally,

K.S.A.2004 Supp. 60-1610(a)(3)(A) provides:

“If the parties have entered into a parenting

plan, it shall be presumed that the agreement is

in the best interests of the child. This presump-

tion may be overcome and the court may make a

different order if the court makes specific find-

ings of fact stating why the agreed parenting

plan is not in the best interests of the child.”

Rachael argues the district court erred in failing to

find that a material change in circumstances had occurred

which warrants a change in custody. Rachael points to

several factors which she alleges constitute a material

change in circumstances, including the fact that since she

entered into the agreed custody orders, she has improved

her living situation, she has a stable job, and she and

Doug have both completed parenting evaluations. Rachael

also contends that C.N.N. wants to live with her and is

afraid of Melissa.

Essentially, ‘achael asks this court to reweigh the

evidence presented to the district court. However, this

court does not weigh conflicting evidence, pass on credibil-

ity of witnesses, or redetermine questions of fact. State ex

rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275

Kan. 763, 775, 69 P.3d 1087 (2003).

This court looks to evidence which supports the

district court’s findings and determines whether there is

App. 14

substantial competent evidence to support those findings.

“Substantial evidence is that which possesses both rele-

vance and substance and which furnishes a substantial

basis of fact from which the issues can reasonably be

resolved. [Citation omitted.]” U.S.D. No. 233 v. Kansas

Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d

372 (2003).

Emotional abuse of the children by both parents was

substantiated in February 2004, and there was also

evidence that spousal abuse had occurred. There was

testimony in the record from workers at the High Plains

Mental Health Center which suggested that Rachael was

falsely reporting that C.N.N. was suffering from certain

mental health issues. Additionally, one of the conditions of

the agreed custody order was that the children were to

have no contact with Doug Marsh. At the May 10, 2004,

hearing, the district court stressed the seriousness of this

condition with Rachael and she stated that she under-

stood. Despite the seriousness of this obligation, Rachael

subsequently married Doug.

Blain testified that the children were doing well in

Melissa’s care and he felt it was in their best interests to

remain with her. There was also considerable testimony

presented which indicated that since living with Melissa,

C.N.N. is more social and her schoolwork has improved.

There is substantial competent evidence to support

the district court’s finding that there had been no material

change in circumstances sufficient to warrant a change in

the children’s custody.

Affirmed.

App. 15

IN THE DISTRICT COURT OF

NORTON COUNTY, KANSAS

In the Matter of the Marriage of:

RACHAEL NELSON, n/k/a

RACHAEL MARSH,

Petitioner, Case No. 2003-DM-135

and

BLAIN NELSON,

Respondent,

MEMORANDUM OF DECISION

(Filed Jan. 20, 2005)

NOW on this 11th day of January 2005, the above

matter is reviewed by the Court in chambers.

On January 7, 2005, an evidentiary hearing was held

and oral arguments were presented to the Court on three

issues. Rachael Marsh, formerly known as Rachael Nelson

or Rachael Nelson Marsh appeared in person and by and

through her attorney Paula D.. Hofaker. Blain Nelson

appeared by and through his attorney Charles E. Worden.

Intervener Melissa McMullen appeared in person and by

and through her attorney Daniel C. Walter.

As a preliminary matter, I will note that counsel for

the intervener is to prepare a journal entry relating to the

motion to dismiss; counsel for the respondent Blain Nelson

is to prepare a journal entry relating to a motion to ex-

clude expert testimony. The primary issue that will be

resolved in this memorandum relates to the parental

preference doctrine.

App. 16

Intervener Melissa McMullen refers to Troxel v.

Granville, 530 U.S. 57, 120 S.Ct 2054, 147 L.E.2d 49

(2000) as one of the touchstone cases that must be exam-

ined before this case can be resolved, and it is. Petitioner

also cites that case as supporting her position. The right of

parents to raise their children is without question consti-

tutionally protected right, inherent in the Due Process

Clause of the 14th amendment. However, although Troxel

v. Granville refers to identifiable principles and maxims

associated with the parental preference doctrine, that case

is distinguishable from the instant proceedings, and

nothing in these proceedings has violated the parents’

right to raise their children, as guaranteed under the

federal constitution.

The facts are that on December 23, 2003, petitioner,

Rachael Nelson Marsh, filed a petition seeking a divorce

from Blain Nelson. Two children had been born during the

marriage, Christine Nicole Nelson, dob October 18, 1995,

and Nathan Ray Nelson, dob April 8, 2002. Shortly after

the petition was filed, Blain Nelson filed his answer

alleging that the two children “resided with either the

petitioner, respondent or the respondent’s sister, Melissa

McMullen, during the past five years.” Thus the pleadings

assert that Melissa McMullen established a relationship

with these children, serving as their residential custodian

before this case was ever filed. In addition, the fact that

Melissa McMullen had been a residential custodian for the

children prior to the filing of the divorce action was borne

out during the testimony given by Rachael Nelson Marsh

on January 7, 2005.

Whether Melissa McMullen had residency of the

children before or after Rachael Nelson Marsh began her

relationship with Douglas Marsh has not been established,

App. 17

but on December 29, 2003, an agreed temporary order was

entered, “that the petitioner (Rachael Nelson) will not

have the children around Doug Marsh during the pend-

ency of this action.” The order was approved by counsel for

petitioner and respondent.

For reasons that are not known to me, another Agreed

Temporary Order was entered on January 12, 2004; once

again that order was approved by counsel for both parties

and it was also personally signed by petitioner and re-

spondent, with each paragraph appearing to be individu-

ally initialed by Rachael Nelson. That order also contained

language, “that the petitioner (Rachael Nelson) will not

have the children around Doug Marsh.”

After respondent alleged that Rachael Nelson had

violated the temporary custody orders by allowing the

children to be “around Doug Marsh”, a third agreed

custody order was entered on March 30, 2004, temporarily

placing legal custody ~* the two minor children with “a

third party, their aunt, Melissa McMullen.” Once again,

the children were placed, by agreement of the parties with

a non-parent, Melissa McMullen, who both parties concede

had a previous relationship with the children as their

custodian.

A clause in the December 29, 2003, order further

memorialized that “the parties agree that the third party

placement is in the best interest of the minor children and

shall continue until such time as there is a material

change in circumstance, as defined by Kansas statute, the

case is decided by the Court of Appeals and Kansas Su-

preme Court, and each waive the claim of parental prefer-

ence as to this placement during the minority of the

children. Each party acknowledges that they have been

App. 18

advised by their counsel of the Kansas Constitutional

provisions concerning parental preference towards their

children and they each acknowledge that the facts and

circumstances warrant a third party placement and the

third party placement is in the best interest of the minor

children.” That March 30, 2004, order was signed not only

by counsel, but by petitioner and respondent personally,

and it remained in force until May 10, 2004, when the

final divorce hearing was held.

Presented to the Court on May 10, 2004, was a per-

manent parenting plan, signed by the parties and their

counsel wherein it was determined that “joint legal cus-

tody is not in the best interest of the children. The parents

have agreed at this time to place custody of the minor

children with Melissa McMullen.” Hence, an agreed order

was entered, and custody was granted to Melissa

McMullen: “The parties are agreeing to custody with

Melissa McMullen until the Court finds a material change

in circumstance warranting a change thereto.” That

permanent parenting plan provided for parenting time

with both the mother and father and afforded the parties

mediation-as a means to resolve disputes that might arise

in the future. An additional provision in the parenting

plan repeated that “the petitioner shall not have the

children around Doug Marsh.”

To further memorialize their agreement, as evidenced

by the permanent parenting plan, on May 10, 2004, an

agreed custody order was also submitted to the Court for

approval. Once again, that agreed custody order was not

only approved by both counsel but also personally ap-

proved by the respondent and petitioner. The agreed

custody order directed placement of the children with their

aunt Melissa McMullen and established child support to

App. 19

be paid in favor of Melissa McMullen. For the fourth or

fifth time, in the agreed order, the Doug Marsh issue was

addressed, and the petitioner agreed that when she

exercised parenting time she would not be around or near

Doug Marsh until further order of the Court.

On the date the final agreed custody order was filed,

May 10, 2004, a month and a half after the supplemental

custody order was entered on March 30, 2004, the parties

yet again acknowledged “that they have been advised by

their counsel of the Kansas Constitutional provisions

concerning parental preference towards their children and

they each acknowledge that the facts and circumstances

warrant the third party placement and that the third

party placement is in the best interest of their minor

children.”

In addition, the property settlement agreement filed

on May 10, 2004, substantiates the agreement of the

parties, “that provides for third party custody of the minor

children.” In the property settlement agreement, each

party acknowledged that he or she had consulted with

legal counsel and that “they had sufficient opportunity to

confer with his or her attorney with regard to the matters

in this agreement, and has been fully advised of all rele-

vant facts and circumstances.” Paragraphs VI 2 and 4 of

the property settlement agreement corroborate that the

agreement is to be considered contractual between the

parties and that the “agreement shall not be subsequently

modified, except by mutual consent and agreement of the

parties, expressed in writing, dated and signed.” In addi-

tion at VI 7, “each party acknowledges that this agreement

has been entered into voluntarily, without duress and with

full disclosure of his or her assets and liabilities. Each

App. 20

party believes this agreement to be valid, just and equita-

ble.”

An order for child support was entered on May 10,

2004, requiring the “petitioner and respondent to pay child

support as reflected in the child support order and child

support worksheet.” That order repeats “(t)hat the parties

have entered into an agreement that provides for third

party custody of the minor children with Melissa

McMullen.”

A transcript of the May 10, 2004, hearing supports

that the petitioner had full knowledge and understanding

of the residential arrangements she was making for her

two minor children. Page 4, Line 19 through Page 5, Line

19.

“Q@. And those two children, we’ve entered into an

agreement where they will be residing with a third party,

is that correct?

A. Yes.

Q. And that third party is actually a sister to your

husband?

A. Yes.

Q. As part of that, ma’am, we’ve reviewed and signed

a parenting plan, is that correct?

A. Yes.

Q. And is that the parenting plan that we’ve agreed

to?

A. Yes.

Q. Does your signature appear at the end of that?

Q.

A.

App. 21

Yes.

And you’re asking the Court to approve that

today?

Yes.

And because it’s a third party, we also entered

into an agreed custody order document, do you re-

call reading that?

Yes.

And there is a change on that in Paragraph 4, and

you understand that change, correct?

Yes.

And you're asking the Court to approve that. Is

your signature at the end of that?

Yes, it is.

And is your husband’s signature at the end of

that?

Yes, it is.”

As shown at page seven of the transcript, the Court

asked questions of the petitioner because of the unusual

nature of the residency arrangement.

“THE COURT: Okay, Ms. Nelson, you under-

stand that it’s rather unusual in these type of situations

that the Court authorizes a placement of your children

with a third party?

THE WITNESS: Yes, I do.

THE COURT: And I understand there are some

peculiar circumstances in this case, those are somewhat

App. 22

evidenced in the temporary custody order where it’s shown

that you have a relationship at present with Doug Marsh?

THE WITNESS: Yes.

THE COURT: And Mr. Marsh is not to have any

contact with the children of any kind. That’s been the

dispute, apparently, between you and your husband; is

that right?

THE WITNESS: Yes.

THE COURT: And you've agreed that in order

for you to come in and seek residency of the children, or to

seek a change in the parenting time, other than what

might be authorized by Kansas statutes, that you're going

to have to come in and show there has been a material

change in circumstances?

THE WITNESS: Yes.

THE COURT: And you've agreed to that?

THE WITNESS: Yes. ~—

THE COURT: Do you feel like you need any

additional time to discuss with Mr. Baumgartner what

constitutes a material change of circumstances?

THE WITNESS: No.

THE COURT: Do you understand that it’s a

pretty heavy burden for you to bear to come into court and

show that there has been a material change in circum-

stances?

THE WITNESS: I understand.”

App. 23

Questions were also propounded to the respondent

regarding residency and custody of the minor children,

and all that questioning occurred while the petitioner was

present in the courtroom. Page 10, Line 13 through Page

11, Line 6.

Q.

A.

OP & P

You understand, also, that you're agreeing, and

we talked about that this noon, that you could not

petition the Court for any change unless there is a

material change in circumstances?

I do.

And we talked about the constitutional right of

parent today?

Yes.

And the parental preference rule requiring place-

ment with a parent, unless there is a finding of

unfitness, correct?

Right.

And you're waiving all of that?

Yes.

And in order for you to come back in, you’d have

to show a material change of circumstances, and

we went through some samples?

Yes.

But they’re not small ones, are they?

No.

The Court’s findings on May 10, 2004, then included

the following on page 13, line 4 through page 14, line 19.

App. 24

“They also have asked the Court to approve a rather

unusual parenting plan. The Court has heard testimony

from both parties. The two minor children are presently

with the respondent’s sister, Melissa McMullen. Ms.

McMullen has agreed to assume responsibility for raising

those children as their parent, as a third party, but as

their parent for all intents and purposes.

There are circumstances in this case which have led

the par’ .es to conclude that neither the petitioner nor the

respondent should probably have residential custody at

this time. Because of the circumstances as testified to and

related .oday by counsel, the Court is going to approve the

agreed custody order placing these children with Melissa

McMullen. The parenting plan will be the one submitted

by the parties, approved by each of them.

I'll simply remind Ms. Nelson that you need to under-

stand that one of the specific conditions in the agreed

custody order is that the children have no contact with

Doug Marsh, do you understand that?

THE PETITIONER: Yeah.

THE COURT: That he isn’t to be around those

children under any circumstances, and you also need to

understand that any matters concerning the children are

subject to the court’s continuing jurisdiction. What that

means is that until Nathan Ray Nelson is 18 years of age

and out of high school, which will be in about 16 years, it

looks like, that I or a judge sitting in this position will

have jurisdiction to decide what’s in his best interest. So if

it’s alleged that you have had contact with Doug Marsh

when the children were near Doug Marsh and it’s a

violation of the court's order, Mr. Nelson may be able to

App. 25

come back into court and ask some additional sanctions or

conditions be imposed upon you. Do you understand that?

THE PETITIONER: Uh-huh.

THE COURT: So you understand then the

seriousness of your obligation not to have the children in

contact with Mr. Marsh?

THE PETITIONER: I do.”

The transcript on page 15, lines 10-14 also reflects

that before concluding the proceedings, the Court inquired

whether the parties or their attorneys had any questions.

‘Do either of you have any questions? Mr. Nelson?

Mrs. Nelson? Mr. Baumgartner? Mr. Worden?

MR. BAUMGARTNER: No, Your Honor.

MR. WORDEN: No further questions.

THE COURT: Thank You.”

It is now evident that petitioner Rachael Nelson

elected to marry Doug Marsh, in spite of the specific

orders relating to Mr. Marsh not being present when

Rachel Nelson Marsh exercised parenting time with the

children. As of the time this order is written, there has not

been any motion to amend any existing order relating to

Mr. Marsh’s presence when Rachael Nelson Marsh exer-

cises her parenting time.

It is important to note that Troxel v. Granville not

only refers to the parental preference doctrine, but it also

confirms that there is a “parental presumption” doctrine

that must be acknowledged. The parental presumption

doctrine is that parents act in the best interest of their

App. 26

children; as long as a parent is fit, there “will normally be

no reason for the state to inyect itself into the private

realm of the family” to question a parent’s decision making

ability. See Troxel v. Granville at 120 S.Ct 2054, 2061.

There has been no showing of unfitness here. Rachael

Marsh was not under duress when she signed the agree-

ment. She might have been stressed about the fact that

her children had been in the care of a third party for a

considerable period of time or because she was in the

process of concluding divorce proceedings, but there has

been a complete failure to show that her signature to the

documents mentioned by the Court in this memorandum,

or her testimony as presented on May 10, 2004, or that her

understanding and consent to the agreement was achieved

through duress or over reaching. To the contrary, the

record and evidence show that counsel for both parties

went to significant efforts to advise their respective

clients, and that at the end of the day the parents of

Christine Nicole Nelson and Nathan Ray Nelson under-

stood their rights before they made an informed, knowing,

voluntarily and intelligent decision to place their children

with Melissa McMullen. It would be presumptuous for this

Court, absent a material change in circumstances, to inject

itself into the private realm of the family and to question

the ability of Rachael Nelson Marsh and Blain Nelson to

make a decision that was in the best interest of their

minor children. After all, Rachael Nelson Marsh entered

into the agreements mentioned herein, and she proposed

the court orders signed by this Court. She affirmatively

sought court approval to place her children in the legal

custody and residency of a third party, Melissa McMullen.

Rachael Nelson has not shown that there was such a lack of

understanding of the agreement as to taint the parenting

App. 27

plan, agreed order or other written proceedings. She was

represented by able and experienced counsel; she indi-

cated she understood the proceedings and the ramifica-

tions of her actions and, when asked, responded that she

did not need any additional time to discuss any of her

activities with her attorney.

The testimony presented by Rachael Nelson Marsh on

January 7, 2005, is diametrically opposed to what occurred

on or before May 10, 2004. The reason for that is under-

standable. Having had additional time to consider her

actions, petitioner wishes she had not agreed to allow

Melissa McMullen to have custody of her children.

Under the circumstances presented to the Court, the

parental preference doctrine does not apply in this situa-

tion. There was a valid waiver of the parental preference

doctrine. That waiver was freely, knowingly, understand-

ingly, voluntarily and intelligently made by both Rachael

Nelson and Blain Nelson. The waiver of the parental

preference doctrine is not of unlimited duration; instead

that waiver applies only until such time as there is a

material change of circumstances just as was explained by

this Court to Rachael Nelson and Blain Nelson on May 10,

2004. Instead, the parental presumption doctrine applies,

and absent a showing of unfitness or a material change in

circumstances that has an effect on the best interest of the

children, this court is loath to question the decision made

by Rachael Marsh and Blain Nelson on May 10, 2004.

This Memorandum Decision and Order shall serve as

the Order of the Court, no further journal entry being

required.

IT IS SO ORDERED.

App. 28

Dated this 11th day of January, 2005.

/s/ William B. Elliott [SEAL]

Hon. William B. Elliott, Chief Judge

17th Judicial District

CERTIFICATE OF MAILING

I do hereby certify that on this 20th day of January

2005, a true and correct copy of the above and foregoing

MEMORANDUM OF DECISION was mailed, postage

prepaid and properly addressed to:

Paula D. Hofaker Charles E. Worden

Attorney at Law Attorney at Law

P.O. Box 482 P.O. Box 427

Logan, KS 67646 Norton, KS 67654

Daniel C. Walter

Attorney at Law

P.O. Box 364

Norton, KS 67654

and the original was filed with the Clerk of the District

Court, Norton County Courthouse, P.O. Box 70, Norton,

KS 67654.

/s/ Janelle K. Morel

Janelle K. Morel Administrative Assistant

to Hon. William B. Elliott, Chief Judge

App. 29

IN THE SUPREME COURT

OF THE STATE OF KANSAS

PAULA D HOFAKER

LAW OFFICE OF PAULA D HOFAKER PA

PO BOX 482

LOGAN KS 67646

CASE NO. 05-94443-A

IN THE MATTER OF THE MARRIAGE OF:

RACHAEL NELSON,

N/K/A RACHAEL MARSH, APPELLANT,

AND

BLAIN NELSON, APPELLEE.

YOU ARE HEREBY NOTIFIED OF THE FOLLOWING

ACTION TAKEN BY THE COURT: PETITION FOR

REVIEW BY RACHAEL NELSON N/K/A RACHEL

MARSH. CONSIDERED BY THE COURT AND DENIED.

RESPONSE NOTED. —

DATE: 05/09/2006.

CAROL G. GREEN

CLERK

App. 30

IN THE DISTRICT COURT OF

NORTON COUNTY, KANSAS

RACHAEL NELSON

MARSH,

Petitioner,

Case No. 2003-DM-135

BLAIN NELSON,

)

)

)

)

-VS- )

)

)

Respondent. )

TRANSCRIPT OF PROCEEDINGS

(Filed May 10, 2005)

PROCEEDINGS had before the Hon. William B.

Elliott, Judge of the District Court of Norton County, held

at Norton, Kansas, on the 7th day of January, 2005.

* * z

[47] Q. What was your understanding that — did you

think waiving the parental preference was any big deal?

A. It was my understanding at the time that, no, it

was not. That it was something that we had to do to let

Missy have them, the children, temporarily.

Q. For the court to approve the arrangement?

A. Yes.

Q. Now, you’ve been saying, now, it was my under-

standing at that time. You’re saying that because we

talked, haven't we?

A. Yes.

App.-31

Q. Do you understand now the seriousness of such a

thing?

A. Yes.

MRS. HOFAKER: I don’t have any other ques-

tions.

THE COURT: Mr. Worden?

CROSS-EXAMINATION

BY MR. WORDEN:

Q. Missy has had your children before, has she not?

A. She had Cristine before, yes.

Q. You and Blain got, filed for divorce or got divorced

one time, correct?

A. We were in proceedings; never went through.

Q. And at that time, the two of you took Cristine

over [48] and she lived with Missy for a period of time,

correct?

A. Yes.

Q. How long?

A. About one month.

Q. Okay. Did you sign any waivers of parental

preference to have her go over there then?

A. No.

App. 32

Q. So why would you say that the only reason you

believed they would go with her is if you signed the paren-

tal preference? Haven’t you had them there before?

A. Yes.

Q. Didn’t Missy specifically tell you she wouldn't

take these children unless you agreed to do this, so you

couldn’t just come back in and get them when you wanted

them?

A. No, she did not.

Q. You do recall the conversation that if you did not

agree, you and Blain, to a third-party placement, that

S.R.S. was in fact going to file a child in need of care

petition on the children?

A. Yes.

Q. You also agreed from the beginning of this case,

from the temporary orders, that your children would not

be around Doug Marsh, correct?

A. Yes.

Q. That order still continues today, correct?

* 1 *