Kansas: Power and authority of the trial court to award custody of the child to the stepmother.
Earl V. Anderson and Dorothy Pearl Anderson were married on June 8, 1958. His eleven-year-old daughter, by a former marriage, Brenda Louise, was taken into their home and lived with them. No children were born of the marriage of Earl and Dorothy. On December 2, 1960, Earl sued Dorothy for a divorce, alleging gross neglect of duty and extreme cruelty. In his petition he alleged that, although his daughter Brenda was staying with Dorothy temporarily, he desired to have her care, custody and control.
On January 5, 1961, Dorothy filed her answer in the form of a general denial.
No further action in the matter was taken until October 23, 1961, when Dorothy filed a cross-petition seeking a divorce from Earl on the grounds of extreme cruelty and gross neglect of duty.
The case was tried on October 24, 1961, and taken under advisement.
On January 9, 1962, the trial court rendered its decision in which it denied a divorce to Earl and granted a divorce to Dorothy on her cross-petition. The court's memorandum decision contained the following:
"Brenda Louise, though the child of the husband only, became a part of the family, and is subject to the jurisdiction of this court, under the authority of State v. Taylor, 125 Kan. 594. Mrs. Anderson has had actual custody of the child since the parties separated nearly two years ago, when the plaintiff changed his residence to Miami County, Kansas, leaving his daughter in Iola with the defendant. Mrs. Anderson has throughout the marriage relation stood in loco parentis to her stepdaughter.
Upon competent and substantial evidence, was warranted in making the specific finding of unfitness on the part of the father to have custody, and in further finding that it would be to the best interests of the child to live with her stepmother.
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