"The defendant also contends that K.S.A. 60-1501 through 60-1505 and 60-1610 are unconstitutional and that they violate petitioner's right to family integrity and privacy in contravention of the First, Ninth, and Fourteenth Amendments to the Constitution of the United States. Defendant also contends that her Sixth Amendment rights were also violated. This Court is of the opinion that in child custody proceedings the rights of the parents are not at issue and that the child's best interest is the cardinal principle in determining the right as between parents to custody, Burns v. Burns, 177 Kan. 116, Lyerla v. Lyerla, 195 Kan. 259. In Re. Bort, 25 Kan. 215 [ sic 308].
The trial court is vested with continuing jurisdiction to modify a custody order when justified by a change in circumstances. ( Moran v. Moran, 196 Kan. 380, 411 P.2d 677; Travis v. Travis, 163 Kan. 54, 180 P.2d 310.) Before a custody order will be modified the movant has the burden of showing the child can be better cared for if the requested change is granted. ( Burns v. Burns, 177 Kan. 116, 276 P.2d 308.) This question is subject to the sound judicial discretion of the trial court after consideration of all the facts and circumstances shown by the evidence, and on appellate review its decision will not be disturbed by this court unless there is a clear showing of an abuse of discretion. ( Kimbell v. Kimbell, 190 Kan. 488, 376 P.2d 881; Hardenburger v. Hardenburger, 216 Kan. 322, 532 P.2d 1106.
Beginning with the early cases written by Mr. Justice Brewer ( In re Bort, 25 Kan. [*]308, and Chapsky v. Wood, 26 Kan. 650), this court has consistently adhered to the rule that when a controversy arises as to the custody of a minor child, the primary question to be determined by the court is what is for the best interest of the child. ( Burns v. Burns, 177 Kan. 116, 276 P.2d 308; Whitebread v. Kilgore, supra; Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989, and cases cited.) Our statutes now provide that "physical presence within the state" is made the jurisdictional basis for custody orders in divorce cases.
Did the trial court abuse its discretion in denying the defendant's motion for a change of custody? The defendant contends that since the plaintiff retained counsel to represent her and subsequently left the jurisdiction of the court with the minor children, she was in contempt of court, and her failure to appear and "throw light" on the matter raised the presumption that her testimony would have been unfavorable to her; further, that the defendant's evidence made a prima facie showing that a change of custody should have been granted. He cites and relies upon Burns v. Burns, 177 Kan. 116, 276 P.2d 308, and to language in that opinion which reads: ". . . even if she were contemptuous in that respect [having left the jurisdiction of the trial court with the minor children when the order giving her custody expressly provided that she should not take the child from the jurisdiction of the court — which was not the case here] there is no reason to change the custody of the child to defendant unless the defendant is shown to have a place and facilities for caring for the child as good or better than the plaintiff is providing. . . ."
The paramount issue in a motion to change custody of minor children as between the father and mother is the welfare and best interests of the child involved. ( Kamphaus v. Kamphaus, supra; Jackson v. Jackson, 181 Kan. 1, 8, 309 P.2d 705; Burns v. Burns, 177 Kan. 116, 119, 276 P.2d 308.) This issue was recognized by the trial court in the instant case.
These rights were denied by the order made below. Martinez v. Martinez, 1946, 49 N.M. 405, 165 P.2d 125; Piatt v. Piatt, 1919, 32 Idaho 407, 184 P. 470; Brown v. Brown, 1946, 66 Idaho 625, 165 P.2d 886; accord: Burns v. Burns, 1954, 177 Kan. 116, 276 P.2d 308."
These rights were denied by the order made below. Martinez v. Martinez, 1946, 49 N.M. 405, 165 P.2d 125; Piatt v. Piatt, 1919, 32 Idaho 407, 184 P. 470; Brown v. Brown, 1946, 66 Idaho 625, 165 P.2d 886; accord: Burns v. Burns, 1954, 177 Kan. 116, 276 P.2d 308. Under the circumstances of this case, because the trial court departed from the matters in issue, we do not believe the failure of the appellants to tender requested findings of fact and conclusions of law forecloses our review.