Tamara contends these statutes should be strictly construed and should not be expanded to include a step grandparent. To support her argument, Tamara relies primarily on In re Hood, 252 Kan. 689, 847 P.2d 1300 (1993), and In re T.A., 30 Kan.App.2d 30, 38 P.3d 140 (2001).        Although not interpreting the term "grandparent" in the statutes, In re T.A. provides guidance in holding that "[t]hird-party visitation is a creature of statute and in derogation of a parent's constitutional right to direct the upbringing of his or her children. Third-party visitation statutes must, therefore, be strictly construed."

270 Kan. at 658, 16 P.3d 962. In In re T.A. , 30 Kan. App. 2d 30, 38 P.3d 140 (2001), the mother appealed the district court's decision ordering grandparent visitation on a schedule different from the schedule the mother had offered. The district court found that the mother was a fit parent, that substantial bonding had occurred between the grandparents and the child, and that it was in the best interests of the child to continue some contact with the grandparents.

While it is true, as Julie and Lars claim, that the district court believed Lars and Julie were generally acting in B.'s best interest, they failed to note the court's finding that in seeking to bar all visitation between B. and Charlie, the only father B. had known for the first 6 1/2 of her then 7 years of life, they were not acting in B.'s best interest. In In re T.A., 30 Kan.App.2d 30, 38 P.3d 140 (2001), which dealt with grandparent visitation, the court noted that because this type of visitation interferes with a parent's constitutional right to rear his or her children, the district court must give material weight and deference to the position of a fit parent. It held that "[t]he trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parent's, absent a finding of unreasonableness."

Moreover, neither Troxel nor Paillet establish a bright line rule requiring a finding of parental unfitness as a prerequisite to grandparent visitation. See In re T.A., 30 Kan.App.2d 30, ----, 38 P.3d 140 (2001). There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation under K.S.A. 38-129.

Our court has previously stated: "Absent findings of unreasonableness, a trial court should adopt the grandparent visitation plan proposed by a fit parent." In re T.A., 30 Kan. App. 2d 30, 35, 38 P.3d 140 (2001). Because the district court failed to do this, we must agree with Michael that the district court erred.

Moreover, panels of this court have also held that third-party visitation statutes must be strictly construed because they are a creature of statute and in derogation of parents' constitutional right to direct the upbringing of their children. In re T.A., 30 Kan.App.2d 30, 34–35, 38 P.3d 140 (2001); Davison, 31 Kan.App.2d 192, Syl. ¶ 3. This does not mean, however, that the presumption automatically compels a district court to adopt a fit parent's proposed visitation schedule; “otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse.”

[Citation omitted.]" In re T.A., 30 Kan.App.2d 30, 35, 38 P.3d 140 (2001).           Jarred and Rayna argue that the trial court erred because it did not find them to be unfit parents.

Our Court of Appeals also has extended allocation of Ortiz in two civil cases; they fit into this third category, as they mention the constitutional right to counsel. See In re T.A., 30 Kan. App. 2d 30, 35-36, 38 P.3d 140 (2001) (grandparents' out-of-time appeal pursued under Ortiz rejected in visitation rights proceeding; grandparents have no fundamental right to effective counsel in such proceeding); In re T.M.C., 26 Kan. App. 2d 297, 299, 988 P.2d 241 (1999) (parent's constitutional right to counsel in termination proceeding makes application of Ortiz' fundamental fairness exceptions appropriate). A few of these cases, including at least one in each category, have also discussed whether counsel for a criminal defendant was appointed or retained.

We recognize that a voluntary order can be modified, but reliance interests and bonding issues are likely to arise over the years of compliance with the visitation order. See id.; In re of T.A., 38 P.3d 140, 143 (Kan.Ct.App. 2001) (grandparents can rebut presumption required by Troxel by showing "that a substantial relationship has been established between the child and the grandparents" and that grandparent visitation is in the best interests of the child). These factors were not explored because mother failed to raise the constitutional question before the evidence was submitted.

through the CINC proceedings, had achieved the ability to care for and parent her children, was found fit and, therefore, was presumed to act in the best interests of the children. SeeIn re T.A., 30 Kan.App.2d 30, 35, 38 P.3d 140 (2001).