	Nelson & Booth attorneys at law

Move Away Cases Under Kansas Law*

Unlike many other states, Kansas has only a sparse amount of law on the issue of removal of children from the state. Only one statute exists addressing the issue and only six reported appellate decisions have been made. Those cases leave the decision of any limitations and restrictions on any move to the trial court and none of them have found the trial court to have errored in its decision either to allow or refuse removal of a child from the state.

The Kansas cases, instead of setting forth a presumptive rule as is so common in most other states, provide only that the trial court is to make its decision in keeping with the best interests of the children, analyzing all those factors the court is to consider in making its initial determination or modification of custody orders. Instead, the Court has applied the general rules providing that decisions are to be made in the best interests of the children instead of based on any pre-ordained assumption of the best decision to be made.

The general statute pertaining to orders which can be made in a domestic action control the circumstances under which child custody orders may be modified.[1] That provision provides the district court “may change or modify any prior order of custody when a material change of circumstances is present.”[2] This language merely restates the common-law power of the courts in custody situations, however.

Where the contest is between the parents as to the custodial arrangement, the court is bound to determine the matter by examining the best interests of the children.[3] The critical factor which the courts must consider is what custodial arrangement would best serve the interests and welfare of the minor child.[4]

Although it is established that all persons have a constitutional right to freely travel and move their residence from one state to another or to a foreign country,[5] the courts have universally determined that though an adult person may have an unfettered right to travel, that person does not have an unlimited right to take that person’s children on the travel, in opposition to the expressed desires of the other parent.[6]

Because a court may modify a previous custody order whenever there is a “material change in circumstances,” it is ultimately the court’s own decision whether the movant has shown sufficient change to modify the custody arrangement. There are a few specific statutory provisions which the legislature has enacted which may be considered a “material change in circumstances” justifying consideration of a change in custody:

In looking at facts in determining child custody matters, the trial court is required to provide stability in their lives, to acknowledge that the children’s perception of time is different from that of an adult, and to take into consideration the child’s past and present relationship with both parents.[7]

Whenever the courts are faced with a situation in which they must determine the custody rights to be awarded and the residential custodial situation, that court must determine it in accordance with the best interests of the child.[8]

The same criteria which are applicable to any custody determination must be considered by the courts in any determination regarding custody.[9] Although the Kansas cases have largely left decisions in individual removal cases to the discretion of the trial judge, many cases indicate that the state has a strong interest in providing stability in the lives of children of a separated family and in protecting their physical, mental, and emotional welfare:[10]

. . . as to a divorced parent to whom custody of a minor child has been entrusted, such person may be required to forego or forfeit some rights to custody or visitation, as the case may be consistent with the best interests of the children and the rights of the other parent.[11]

What constitutes the “best interests of the child” is generally a determination to be made by the trial judge in evaluation of numerous factors. A determination of custody is generally subject to reversal only where such determination is an “abuse of discretion” as the trial judge is “in the most advantageous position to judge how the interests of the children may best be served.”[12] An “abuse of discretion” is shown only where no reasonable person would take the view adopted by the trial court.[13]

The factors to be considered encompass the entirety of factors which may affect the children and are not limited to only those factors specifically listed or enumerated, either in the statutes or in case law. The courts must remain flexible to consider the totality of the situation affecting the child in order that the court can craft a custodial order which serves the overall best interests of the child. The court is not limited by any listing of factors, whether statutory or court-determined, but must determine by an overall review of all relevant circumstances what would best serve the interests and welfare of the minor child.[14]

Kansas statutes present a number of situations to be considered in any child custody proceeding:

· the length of time the child has been under the actual care and control of any person other than a parent and the circumstances relating to that situation;[15]

· the desires of the child’s parents as to custody or residency;[16]

· the desires of the child as to the child’s custody and residency;[17]

· the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;[18]

· the child’s adjustment to the child’s home, school, and community;[19]

· the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent;[20]

· evidence of spousal abuse.[21]

The court in considering the best interests of the child may decide that residency should be given to the parent who has had the actual care and custody of the child during the child’s lifetime.[22] Since the overall guide by which the courts analyze custody determinations is the “best interests” of the child, the less interference and interruption of a child’s environment, generally the better. This principle is expressed in Kansas statutes prohibiting issuance of temporary orders changing the de facto custody of a child from one parent to the other unless there is an affirmative showing of “extraordinary circumstances.”[23]

The court may consider which parent will be more nurturing to the children and which parent would, on an analysis of the overall situation, provide the most loving environment.[24]

Because the court is directed to determine custody in an overall consideration of what is in the best interests of the children, the court may evaluate which parent would be better able to advance the moral and ethical upbringing of the children.[25]

It is clear that the courts do not have the power to prohibit a parent from moving. The only power the courts have over such a move is either to allow or disallow the move of the children since the Court, in its parens patriae, has the duty and obligation of determining the best interests of the children in absence of agreement of the child’s parents.

The Kansas courts have not indicated whether there is any presumption either in favor of or against removal of a child from the state by one parent without the consent of the other, although many states have done so.[26] Kansas cases and statutes, however, indicate that the court should give weight to continuing regular contact with both parents.[27] This is also made clear by the factors set out in K.S.A. 60‑1610(a)(3)(B). Specifically, the statute directs that the following factors be addressed:

(a) the length of time that the child has been under the actual care and control of any person other than a parent and the circumstances related thereto;[28]

(b) the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;[29]

(d) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent.[31]

It appears, therefore, that a parent desiring to change the residence of the child has the burden to prove that any removal of the child would be in the best interest of the child and that, in the absence of proof the child would be better served by the move, the court should preserve the status quo and that the court should find a way to preserve that presumption unless the evidence clearly indicates.

Notice of move.

Kansas statutes require that any parent with either residency or parenting time with a child give the other parent not less than thirty days notice of any move.

A change of residence of the child to another state may constitute a material change of circumstances.[32] If a parent plans on changing the residence of a child or if that parent plans to take the child out of state for more than 90 days, Kansas law requires that parent give the other parent written notice at least 30 days prior to the removal.[33] The only exception to this requirement is if the other parent has been convicted of any crime specified in various articles of the Kansas Criminal Code in which the child is a the victim of the crime. [34]

If a custodial parent proposes to permanently remove the child from the place at which the child has been living, either parent may file a motion with the court to determine the issues involved. If one parent proposes to remove the child’s residence, the same considerations are applied to that decision as to the original determination of custody — what is in the best interests of the child.[35] This is so even if the parties originally included a restriction against removal of the child from the state in a separation agreement approved with the decree of divorce.[36] It is not sufficient for the moving parent to show that that parent’s own interests would be advanced without consideration of the child’s own interests.[37]

END

Nelson & Booth is a Kansas law firm with a Civil Trial and Appellate practice, emphasizing the handling of complex domestic relations matters (including divorce, legal separation and annulment, determination of parentage, child custody, marital and non-marital property division, and support, as well as the representation of parents in cases of international child abduction). The firm was established in 1994.

The attorneys at NELSON & BOOTH are licensed to practice only in the
states of Kansas or Missouri.

Nelson & Booth
Suite 160; 10990 Quivira Road
Overland Park, Kansas 66210-1281
(Kansas City Metropolitan Area)
Telephone: (913) 469-5300
Telecopier: (913) 469-5310
E-fax (801) 697-8455
E-mail: Ronald W. Nelson and Joseph W. Booth

Last updated 08/31/2004

[1] K.S.A. 60‑1610(a)(2)(A) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[2] K.S.A. 60‑1610(a)(2)(A) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[3] In re Marriage of Bradley, 258 Kan. 39, 43, 899 P.2d 471 (1995); K.S.A. 60‑1610(a)(3)
(as amended by 1997 Kan. Sess. Laws, Ch. 182, § 1).

[4] Dickison v. Dickison, 19 Kan. App. 2d 633, 640, 874 P.2d 695 (1994)(“The most critical consideration in a child custody case is what outcome best serves the interests and welfare of the child.”).

[5] United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L.Ed.2d 239 (1966); Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L.Ed.2d 600 (1975); Smith v. Turner, [The Passenger Cases],
7 How. (48 U.S.) 283, 12 L.Ed.2d 702 (1849). Although still occupying constitutional status, the United States Supreme Court has not granted citizens as broad a right to travel to and from a foreign country as it has interstate. See Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471,
58 L.Ed.2d 435 (1978)(“The constitutional right of interstate travel is virtually unqualified. By contrast, the ‘right’ of international travel has been considered to be no more than an aspect of the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment. As such this ‘right,’ the court has held, can be regulated within the bounds of due process.” quoting Califano v. Torres,
435 U.S. 1, 4 n. 6, 98 S. Ct. 906, 908, 55 L.Ed.2d 65 (1977)(citations omitted)).

[6] Carlson v. Carlson, 8 Kan. App. 2d 564, 661 P.2d 833 (1983).

[7] In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1989).

[8] K.S.A. 60‑1610(a)(3) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4);
In re Marriage of Talkington, 13 Kan. App. 2d. 89, 93, 762 P.2d 843 (1988).

[9] K.S.A. 60‑1610(a)(3)(B) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4);
Carney v. Carney, 1 Kan. App. 2d 544, 571 P.2d 56 (1977).

[10] In re D.B.S., 20 Kan. App. 2d 438, 453, 888 P.2d 875, aff’d 258 Kan. 396, 903 P.2d 1345 (1995); In re Marriage of Shelton, 8 Kan. App. 2d 226, 229, 654 P.2d 487 (1982).

[11] Carlson v. Carlson, 8 Kan. App. 2d 564, 567, 661 P.2d 833 (1983).

[12] Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978).

[13] Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996).

[14] LaGrone by Bridger v. LaGrone, 238 Kan. 630, 633, 713 P.2d 474 (1986)(“The [statutory] enumerated facts, however, are not exclusive.”)

[15] K.S.A. 60‑1610(a)(2)(B)(i) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[16] K.S.A. 60‑1610(a)(2)(B)(ii) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[17] K.S.A. 60‑1610(a)(2)(B)(iii) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4); Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946 (1938); Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263 (1968)(Although a child’s preference is to be taken into consideration, whether to accept that preference is up to the court in an overall determination of what is in the best interest of the child).

[18] K.S.A. 60‑1610(a)(2)(B)(iv) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[19] K.S.A. 60‑1610(a)(2)(B)(v) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[20] K.S.A. 60‑1610(a)(2)(B)(vi) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[21] K.S.A. 60‑1610(a)(2)(B)(vii) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[22] LaGrone by Bridger v. LaGrone, 238 Kan. 630, 633, 713 P.2d 474 (1986).

[23] K.S.A. 60‑1607(b) (1994)(as to ex parte temporary orders).

[24] Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263 (1968).

[25] Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980); Hill v. Hill, 228 Kan. 680, 686,
620 P.2d 1114 (1980); Merriweather v. Merriweather, 190 Kan. 598, 599, 376 P.2d 921 (1962).

[26] See, e.g., Burgess v. Burgess, 51 Cal.Reptr.2d 444, 913 P.2d 473 (1996)(custodial parent has presumptive right to move child against wishes of other parent); Tropea v. Tropea, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996)(changed presumption from against moving the child to consideration of all factors with primary emphasis on best interests of the child).

[27] K.S.A. 60‑1610(a)(3)(B) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[28] K.S.A. 60‑1610(a)(3)(B)(i) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[29] K.S.A. 60‑1610(a)(3)(B)(iii) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[30] K.S.A. 60‑1610(a)(3)(B)(iv) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[31] K.S.A. 60‑1610(a)(3)(B)(v) (as amended by 1997 Kan. Sess. Laws, Ch.182, §4).

[32] K.S.A. 1996 Supp. 60‑1620(c).

[33] K.S.A. 1996 Supp. 60‑1620.

[34] “Crimes Against Persons.” The crimes to which the statute applies are assault (K.S.A. 21‑3408), aggravated assault (K.S.A. 21‑3410), including murder, voluntary and involuntary manslaughter, and vehicular homicide.

[35] Carney v. Carney, 1 Kan. App. 2d 544, 571 P.2d 56 (1977).

[36] Carney v. Carney, 1 Kan. App. 2d 544, 545, 571 P.2d 56 (1977).

[37] In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995).