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Nelson & Booth |
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SUMMARY OF REVISIONS MADE TO |
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(c) Written
by Previously
published in the After nearly
four years of work on various bills seeking to change portions of Terminology
Changes. One of the most
visible changes in the bill is a long overdue change in the terminology used
in child custody cases. Non-residential parents have long complained that the
continued use of the term “visitation” to refer to the they time spend with
their children minimizes the importance of the parent who does not have
primary residence with the children and gives an incorrect impression that
the parent having primary residence has more power and control over issues
related to the health, education and welfare of the child.[2]
With the alterations in terminology put into force by this bill, “parenting
time” – a term much less fraught with images of power or restriction of
access – is now the term describing the time a parent spends with the child
and refers both to the time spent in primary residency or is what was
previously termed as “parental visitation.” The term “visitation” will now
generally only refer to that time a non-parent is allowed to spend with a
child. This change in terminology is meant to recognize the fact that there
is no parental bond existing and that since a third party has no automatic or
constitutionally based right to spend time with the child[3]
(other than as may be allowed by the court), the time with the child which a
third party is grant is different in quality and meaning than that time spent
by a parent. The only exception to this change in language is found in the
uniform laws in which “custody” and “visitation” have broad meaning under
various federal and uniform laws covering expansive parties and their
respective rights.[4]
The bill also
clarifies statutory references to decision-making authority and access to
information regarding a child and the time a child is to spend with each
parent. Under the revised statutes, whenever the term “custody” is used, it
has been changed to the term “legal custody” when it is used to describe decision-making
powers to be distributed between parents and “residency” or “parenting time”
when the term is meant to refer to the time a child spends in the physical
care of a parent.[5]
Instead of setting out the various types of residential care that a court may
grant the parents (e.g. primary residency or shared residency) the statutes
direct that the court is to make decisions regarding residency of the child
“on a basis consistent with the best interests of the child.”[6]
By using this language, the drafters sought to avoid disputes as to what kind
of residential situation may be implicitly “preferred” by the legislature,
opting to leave those decisions to a case-by-case analysis by the court.[7]
Throughout the bill, language has been expanded to direct the courts’ powers
to determinations of “legal custody, residency, visitation [which includes
third party rights], and parenting time [which pertains only to the rights of
a parent].”[8]
The
modifications included in the bill clarify the existing statute by defining
two types of “legal custody” the courts can order: joint custody (i.e. equal
decision-making power and responsibility with both parents) and sole custody
(i.e. primary decision-making power and responsibility with one parent).[9]
Joint legal custody is the preferred legal custody relationship.[10] Provisions
regarding the award of “sole legal custody” have been further modified to
make it clear sole legal custody is to be used only in those circumstances in
which the court determines it is in the child’s
best interest that the parent’s not have an equal right to make decisions
regarding that child.[11]
Further, the statutes are amended to make clear the fact that an award of
sole legal custody to one parent is not intended to be a means by which the
other parent can be denied access to information regarding the child. Only in
those situations in which the court specifically finds that a restriction on
the ability of a parent to access information regarding the child in
necessary may such an informational restriction be made and then the reasons
for that restriction must be specifically stated by the court and must be
stated in addition to those reasons supporting the court’s finding that there
should be sole legal custody.[12]
A new subdivision
is included within K.S.A. 60-1610(a) separating out the concepts of legal
custody (to which subsection 60-1610(a)(4) is directed) and residential
custody (to which the new subsection is directed). No longer does the statute
provide a listing of the different types of parental residence (primary or
shared). The deletion is made in favor of a direction that the courts
determine an appropriate residential order without presuming that any
particular parental residential situation is “preferred” in any particular
situation by statute. There has been contentious discussion about which of
the two types of residential care should be preferred in the statute and how
they should be ordered: “primary” first or “shared” first. This revision
eliminates the language and combines the concepts. Another change in terminology corrects a
long-standing inconsistency between regular civil litigation practice and
domestic relations practice. A separate claim for divorce filed by the
Respondent has previously been termed a “counter-petition” for divorce,
rather than the standard “counter-claim” as provided in the general civil
rules of procedure. Section 79, amending K.S.A. 60-1605, corrects this
inconsistency. The counter request for divorce or other relief is now to be
termed a “counter-claim” as provided by K.S.A. 60-213. Expedited
Enforcement of Parenting Time and Visitation. Statutes
providing for expedited enforcement of visitation and parenting time have
been modified to provide a few needed changes. First, any party seeking
enforcement of orders regarding parenting time or visitation may choose to
file a motion either under the Kansas Expedited Enforcement Procedure or
under the enforcement provisions of the newly enacted Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA).[13]
Although it is anticipated that most people will seek enforcement under the
UCCJEA due to the streamlined procedures, presumptive validity and relaxed
burdens provided to parties seeking enforcement of custody orders provided in
Act, many might seek enforcement under the revised enforcement procedure
because of familiarity and breadth of coverage. Secondly,
amendments to the procedure provide that enforcement may be had by a person
alleging interference with a custody order not only against another “parent,”
but may seek remedies against any “party” who “is responsible for” any denial
or interference with parenting time or visitation rights of another party.[14]
The modifications further provide for expanded court power to order any such party
responsible for an interference to participate in court ordered proceedings,
counseling or other educational sessions regarding the impact of such
interference.[15]
The costs of any counseling or educational sessions are to be assessed
against the person determined to have interfered or caused the interference.[16] Finally, the
statute has been re-ordered to emphasize the need for expedited handling of
enforcement actions and to provide less of an opportunity to a person alleged
to have violated parenting time or visitation orders to force the other party
into seemingly endless procedural hurdles. Concern has been expressed by both
residential and non-residential parents that some judges routinely refer
motions seeking enforcement of custody and visitation rights to mediation
instead of dealing with clear violations of visitation/parenting time rights.
The reference to mediation is believed simply to allow interference to
continue rather than quickly and decisively dealing with clear issues.
Amendments to the enforcement procedure make clear that a court is not
required to order mediation in every situation, but is to examine the
particular facts to determine only if it is appropriate that mediation be
ordered in that particular matter.[17]
Any motion seeking expedited enforcement must immediately be set for a
hearing, which hearing must be held within 21 days after the date on which
the motion is filed, unless mediation is ordered.[18]
A mediation agreement is to be presented to the hearing officer within five
days of is approval by the parties. If mediation is ordered and an impasse is
reached, a report of impasse must be presented to the hearing officer within
five days of termination and a hearing must be held within ten days from the
date on which the hearing officer receives the notice of impasse.[19]
These strict time limits are meant to create a more effective remedy and
emphasize the importance of adherence to court approved parenting time
provisions. Parenting
Plans. New Statutes
have been added applicable to both parentage actions and to domestic
relations cases providing for the filing of parenting plans and setting forth
considerations that must be included in any parenting plan filed. These
sections are adapted from a combination of the parenting plan statutes from In any domestic
relations action in which temporary orders regarding children are sought, a
proposed temporary parenting plan must be filed at the time of the request
and the proposed parenting plan must be served on the other party with any
temporary orders.[20]
Temporary parenting plans may include a number of provisions for protection
of the child’s interests, including a designation of the temporary legal
custody of the child, a designation of the temporary residence of the child,
an allocation of parental responsibilities regarding matters of health,
education and welfare, and a schedule of time the child is to be with each
parent. It should be noted, however, that the only required provisions for a temporary parenting plan are provisions
setting forth the legal custody arrangement that is to be in effect and a
proposed schedule for parenting time with each parent.[21]
It is believed that this minimal requirement will parallel the practices
already in force for most practitioners who regularly practice in this area
of the law. If the other
parent desires a modification of any temporary orders regarding the child,
that parent must also file a proposed temporary parenting plan at the time
any motion to modify is filed and attach a copy of the proposed parenting
plan to the motion, showing the proposed alternate parenting plan. These
requirements provide an early opportunity to assess the positions of the
parties on custody, residency and parenting time and provide the court a way
to judge the parties positions, rather than allowing the parties to
“position” in their litigation over child custody and parenting time issues.
To assist in this process, the bill allows inclusion of orders for mediation
in those orders that may be issued ex
parte.[22]
The amendments
also provide that a “permanent parenting plan” is to be submitted by the
parties prior to any final hearing regarding determination of issues
regarding child custody and parenting time.[23]
A permanent parenting plan may include a long list of detailed provisions
regarding sharing of time and information between parents about their child,
but must include, at a minimum a designation of the legal custodial
relationship, a schedule for the child’s time with each parent (when
appropriate), and a provision for alternate dispute resolution in the event
of disagreements regarding parenting time or responsibilities. If the parties
are able to come to an agreed parenting plan, that plan may be submitted for
approval of the court and is presumed to be in the best interests of the
child.[24]
If the parties are not able to come to agreement on a parenting plan, the
court may set deadlines for submission of proposed parenting plans so that
the court and other parties know of the detailed proposals of every other
party prior to a contested custody trial. This new provision also requires
that both parties submit parenting plans to the court in advance of any
hearing. This requirement will avoid “positioning” regarding child custody and
parenting time and foster resolution of cases involving disputes on parenting
time and custody in parentage cases as well as divorce cases. The time within
which the parenting plan is to be submitted is discretionary with the court.
The bill also provides that the district courts are to provide information to
parents on how the required parenting plans are to be prepared and directs
the Supreme Court to develop forms that may be used to document parenting
plan agreements between parties. [25]
Early mediation of child custody and parenting time issues is helpful in
assisting resolution of those issues before the parties have set their
position. The provision that mediation can be ordered in initial temporary
orders obviates an unnecessary delay in ordering mediation.[26] Notification
of Parent and Child Relocation. Kansas law has
required that a parent having custodial rights with a child was required to
notify the other parent of any change of the residence of a child to a state
other than Kansas not less than 21 days prior to that move by certified mail,
restricted delivery. Under the provision as it existed, however, concern was
expressed that a parent would have to give the required notice for a move of
only a few miles (such as where the parent had lived in Johnson County,
Kansas and planned on moving to Kansas City, Missouri), but would not
required to provide any notice if the move was from one end of the state to
the other (e.g. from Goodland to Johnson County). The amendments included in
H.Sub.SB 150 dramatically change this requirement. Under the amendments
approved, a parent must give 30 days notice of any move of the child’s residence, whether that move be
inter-state or intra-state.[27]
The statute continues to require notification by certified mail, restricted
delivery, return receipt requested and continues to provide that failure to
give the required notice constitutes indirect contempt of court. Although the statute also continues to
provide that any move may constitute a material change of circumstances
justifying a change of residence, the courts are provided a list of factors
they are to consider in deciding such an issue: (1) the effect of the move on
the best interests of the child; (2) the effect of the move on parenting
time; and (3) the increased cost the move will impose on any parenting time.[28]
Currently, there are no statutory factors that must be considered and the
courts have no guidance other than the “best interests of the child.”[29]
Concerns have been raised that even judges within the same judicial district
have different standards to be applied in these “move away” cases. This
language is intended to provide some reference point for those decisions,
without unduly limiting judicial discretion. Special
Requirements of Post-Decree Motions for Change of Custody or Residency As part of the
overall changes the procedures by which domestic relations cases are handled,
the legislature decided to impose strict new requirements on what must be
included in any post-decree motion seeking a change of custody or residency,
as well as any orders sought ex parte.
A new statute applicable to post-decree motions in both parentage and
domestic relations requires that any motion that seeks to change custody or
residency of a child include all known factual allegations that constitute
the basis for a change of custody or residential placement. The factual
statement, which facts must be verified and must be stated “with
specificity,” must be included either in the motion itself or in an attached
affidavit.[30]
If the motion or affidavit fails to set forth a prima facie case for change
of custody or residency, “the court shall dismiss the motion.” If a
sufficient factual basis for change of custody or residency is stated, the
court may then set the motion for trial. The new statute
also provides that whenever an ex parte
order that seeks a change of custody or residency is sought, the court must:
(1) attempt to have the nonmoving party’s attorney present; (2) set the
matter for hearing not more than 15 days from the date on which the ex parte order is issued; and (3)
require that the ex parte order
changing custody or residency and the notice of hearing be personally served
on the non moving party.[31]
No post-decree ex parte order changing custody or residency may be issued
without sworn testimony to support a showing of an emergency. Uniform
Child Custody Jurisdiction and Enforcement Act Probably the most significant part of House Substitute for SB150 is the inclusion of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),[32] which is a revision and updating of the Uniform Child Custody Jurisdiction Act (UCCJA)[33]. This revision modifies and supplements the UCCJA in a few different ways: First, the
UCCJEA revises the law on child custody jurisdiction in light of significant
federal laws that have been enacted since the original drafting date if the
UCCJA, including the Parental Kidnapping Prevention Act (28 U.S.C. 1738A),
the Indian Child Welfare Act of 1978 (25 U.S.C. 1901, et seq.), the
International Child Abduction Remedies Act (42 U.S.C. § 11601, et seq.), and
other significant federal Acts. Secondly, the
UCCJEA revises the law in consideration of over thirty years of contradictory
case law around the nation. Over the time since the original UCCJA was
enacted some states’ courts have read various important provisions of the Act
in diametric opposition to the way in which the Uniform Laws Commission
originally intended. In some cases, those conflicting interpretations have
led to situations in which two states have exercised child custody
jurisdiction over the same child although that is the situation which the
UCCJA sought to avoid. As a result the conflicting interpretations of the
UCCJA, the Uniform Laws Commission has modified Article 2 of the Act so that
it provides a more clear way in which a determination can be made of which
State is to exercise original jurisdiction over a child-custody
determination. The UCCJEA also, for the first time, enunciates a standard of
continuing jurisdiction and clarifies the way in which modification
jurisdiction is to be handled (which the Kansas Legislature foresaw as a
needed addition by enacting K.S.A. 38-1335 in 1980). Other aspects of the
Article harmonize the law on what happens when simultaneous proceedings
occur, application of the “clean hands” doctrine, and rules regarding
“inconvenient forum.” Perhaps the
most important inclusion in the UCCJEA and the only significant addition,
however, is to be found in Article 3 which provides for an expedited process
to enforce child custody and visitation determinations. This Article, for the
first time, sets forth a simple and uniform method by which a existing orders
of child custody, residency or visitation can be enforced. This Article is
based on the provisions of the Hague Convention on International Child
Abduction and sets forth strong means for enforcement of those Orders. Various Miscellaneous
Changes. K.S.A.
60-1615(c) has been revised to allow the court the ability to release child
custody investigation reports to a party, on such terms as are appropriate,
when an attorney represents that party. Currently, an un-represented party
can review the child custody investigation but a represented party cannot.
This duality has led to instances in which a party has terminated an
attorneys’ representation solely for the purpose of reviewing the child
custody report, and then rehiring the same attorney after the report has been
reviewed.[37] K.S.A.
60-1616(f) providing that a change of custody could be ordered if there was
an “abuse of child support” has been deleted.[38]
The The legislature
has directed that an action for interspousal tort shall not be consolidated
with an action filed under K.S.A. 60-1601 et seq.[39]
If a decree of divorce or separate maintenance is granted for reasons
incompatibility, any subsequently filed action for interspousal tort is not
barred; however, if a divorce or separate maintenance action is sought and
granted on “fault” grounds[40]
any claim for interspousal tort is barred. Grandparents
are granted “interested party” status in proceedings under the Kansas Child
in Need of Care statutes and must be given notice of any proceedings in that
case, which notice must be given by first class mail.[41] K.S.A. 60-1610
has been amended to provide that if a divorce decree provides for abatement of
child support, the child support of the non-residential parent shall abate as
provided in that decree. This statute has also been amended to delete K.S.A.
60-1610(a)(5)(C)(iii) which provided for third party custody when a child had
been in residence with that party for more than six months, although the
parents were not found to be “unfit.” A predecessor statute worded the same
was found unconstitutional in 1988 in Sheppard
v. Sheppard.[42]
Conclusion. The passage of
House Substitute SB 150 promises monumental changes in the way in which child
custody cases are handled in |
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NELSON & BOOTH is a law firm engaged exclusively in a family
law practice emphasizing complex domestic relations actions, including
divorce and determination of parentage, property division, child custody,
parenting time, spousal and child support and representation of parents in
cases of international child abduction. The attorneys at NELSON & BOOTH are licensed to practice
only in the |
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E-mail: Ronald W. Nelson or Joseph W. Booth nelson & booth attorneys at law |
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Last updated 11/7/2003 |