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o F T H Il S TAT Il O.F K A N S A S
YOU ARB HIlRBBY NOTIFIIlD OF THIl FOLLOWING ACTION TAItIlNBY TBIl COURT,
CAROL G. GRIlIlN
CLIlRIt
COPIES to COUNSEL
von o
lifl ?-
•••
HALLECK RICHARDSON,
Responden t,
AND
CLAUDINE DOMBROWSKI,
Petitioner.
ORDER
in the petition have been addressed and decided by this court in In the Matter of the
Marriage of Halleck Richardson and Claudine Dombrowski, Case Number 80,304
(unpublished opinion filed October 23, 1998, rev. denied December 22, 1998). The
petitioner's response addresses the merits of the direct appeal in Case Number 99-
.
83,905. This order does not preclude the petitioner from raising issues that pertain
specifically to the order of June 28, 1999, in the direct appeal; this court will not,
l'oP\tS \0 tOUISil
u <~ 10 l~
No. 99-83901
Statement of Faels 3
Issue. The best interests of the minor child, and the constitutional rights of both the child
and her mother. demand that a stay or other relief from the onders of the district court
that are the subject of this appeal be Issued.
LaGrone by Bridoerv, LaGrone, 238 Kan. 630, 713 P.2d 474 (1986) 5
ConClusion......... 5
•
No. 99-83901
Comes Now the Appellant herein, Claudine Dombrowski, by and through her
counsel, Rebecca A. King, Attorney at Law, and respectfully requests that this Court
review and reverse the decision of the Court of Appeals denying the petition for writ of
.Date of Decision
October 7, 1999.
Statement
, of the Issue
Issue. The best interests of the minor child, and the constitutional rights of both the
child and her mother, demand that a stay or other relief from the orders of the
district court that are the subject of this appeal be issued.
Statement of Facts
On September 24, 1999, the Court of Appeals, concerned that the issues raised in
appellant's petition for writ of habeas corpus herein were governed by the unpublished
decision of this Court in Case No. 80304 (same caption), ordered the parties to show
cause why Appellant's petition for writ of habeas corpus should not be dismissed.
Appellant's response to the show cause order was filed on September 30, 1999, but, on
October 7, 1999, the Court of Appeals entered an order denying the pelition. However,
contrary to the findings of the Court of Appeals, the issues brought before this Court in
appellant's petition for writ of habeas corpus were not addressed or decided in the earlier
appeal.
On June 28, 1999, the district court entered its Order to Enforce Prior Order;
Order Establishing Supervised Visitation; Order for Hearing on Child Support; Order on
Motion to Change Venue; and Order Amending Prior Decision Regarding Surname. This
appeal, including the petition for writ of habeas corpus filed herein, seeks to challenge
these orders, which had not even been entered when the earlier appeal was decided.
According to the decision in Case No. 80304, appellant argued then that her constitutional
rights were violated by the district court's arbitrary ruling that it was in the best interests of
the child for her to retumto Topeka, Kansas. But the Court of Appeals limited its inquiry
to the question of whether the districi 'court abused its discretion or failed to consider the
best interests of the parties' minor child, and did not address the constitutionality of the
district court's orders. Appellant is entitled to have this Court immediately address her
claim that the restraints imposed upon her by the orders entered by the district court on
June 28, 1999, are unconstitutional.
Arguments and Authorities
Issue, The best interests of the minor child, and the constitutional rights of both the
child and her mother, demand that a stay or other relief from the orders of the
district court that are the subject of this appeal be issued.
,
I
In this appeal Appellant challenges the legality and propriety of the June 28, 1999,
f
l
" orders entered in the district court concerning custody, visitation, and residence of the
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parties with their minor child, Rikki Dombrowski. These orders cannot be interpreted by
r any reasonable person to be consistent with the best interests of the minor child of the
r. legal rights of the parties. See Greene v. Greene. 20 I Kan. 70 I, 443 P.2d 1356 (J 980).
that is unavailable to her in any other location due to a foot disability that affects her
strength and mobility. Appellant owns a home in Lamed, Kansas. Rikki is in the midst of
receiving specialized medical care for problems with her ears in Lamed, Kansas.
Appellant has been seriously harassed and abused by Appellee, in the past, including being
the victim of an armed assault and battery, that led to the issuance of restraining orders
against Appellee. After Appellant moved from Topeka to Lamed. Kansas, the district
court recognized that the result was a reduction in the physical violence that has
characterized the relationship between the parties. The district court's orders for visitation
visitation require that the Appellee's visits with the minor child occur at and under the
•
supervision of the staff of YMCA Safe Visit location, and Appellant has assumed and lived
Nevertheless, the district court has ordered Appellant and the minor child to move
their residence from Lamed back to Topeka. According to the district court, if Appellant
does not comply with this order, sole residential custody of the minor child will be
awarded to Appellee, a person who is still not allowed to visit the child without
supervision, has failed to make regular child support payments, and has a history of
3
alcohol abuse that necessitated an order from the district prohibiting Appellee from
consuming alcohol within 4 hours of or during the visits. The district court compounded
the dangers posed by Appellee to Appellant and the minor child by issuing an additional
order prohibiting Appellant from calling law enforcement for help or protection from
Appellee without first consulting the case manager who was appointed by the district
court to handle visitation and other arrangements. The legality of this order was never
Appellant has established a residence in Topeka, Kansas, and she has informed the
district court case manager of that fact. Appellant has not yet given up her job and home
in Lamed, Kansas, but soon she will have no choice, because her employer will not wait
long, and she cannot afford to maintain two households. Consequently, the denial of
Appellant's request for a stay and/or a writ of habeas corpus renders this appeal moot and
Appellant's right to appeal meaningless because she will have had to either give up her
house, her livelihood and her relatively abuse-free life in Lamed, or custody of Rikki.
Nevertheless, the district court has ordered Appellant and the minor child to move their
Appellant is entitled to the relief she seeks from the illegal restraint on her liberty
that the orders of the district court impose. Most of the case law relevant to the
determination of the best interests of the child in terms of residence deals with custodial
parents who want to move to another state. Greene v. Greene, 201 Kan. 701, 443 P.2d
1356 (1980). Even in those cases most states attach a favorable presumption to the
desires of the custodial parent. In Re Marriage of Burgess, 51 Cal.Rptr.2d 444, 913 P.2d
473 (1996) [custodial parent has presumptive right to move child against wishes of other
parent]. Moreover, the appropriate analysis looks at the real advantage to the family unit
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FAX NO, 785 843 0161 p, 02/02
that will resull from the move. Q'D.J.IjllljoV p'Ogoll1o, 365 i\.2d 27 (N.J. Sup.etCh.Div.
'''11 I'c •.•ons have a wnstitutillinal right to li'ef!lytnIvel and move their residence
from onc slntc 10 anot~, '" 10 a fmugn country, and that right Is unfeltcre<1except for
limilati~,,,,,on an aduh's risittlO take their oIlild wilh mem, ogaill1t lhe withes oftha othor
parcnL (',rlsoll v (arlH!.\!. 8 Kan.App.2d ~64, 661 P.2d 833 (1983), And Appellant dQe$
nOI seck 10 reside with her child ill another state or couJIIIY,only in another city within the
st.le of KaoSl\l\ In considering the best intcr8llU of the child, decllions about re1ldency
,
muSl 00 lell to Ihe Pllf'Cntwho hIlS physical alstoc!y, bOClluatthe less in~ence and
conclusion
For the foregoing reasons, Appellant prays thaI this Court review and revers. the
. .. '
1 hercb} ccnily lhal live lrue lind corroc,t copies of the IOTellQingPetition for
R~vkw •.•.ere placed i,l lhe lJnhcd SWlIltlMalls, postage prepaid. addr••• ed to [){In R.
I Joilinull. I!sq .. Ilollillltli and Hoffinan, 112 W. 71h51.. Garden Suite. Topeka. KS C1OOO3.
('In thi, lllh dll) or N,wcmlnrr. 1999.