Child
Custody, Parenting Time and
Child Support in Kansas:
A Guide
Introduction
In order to help you through the process of child custody, child visitation
and child support litigation, and to answer some of the more common questions
our clients have about these kinds of domestic relations actions and the
legal process, we have prepared this pamphlet to help explain the steps
involved in the process.
Kinds of Child
Custody/Visitation/Support Actions
There are numerous ways in which litigation regarding children may come about
other than in the course of an initial separation or dissolution of a
marriage:
Post Divorce. It is
common for one or the other parent to request post-divorce modifications of
orders issued by the court. A party may request modification of any child
support order in Kansas if
there is a "substantial change in circumstances" from the time when
a previous order was entered.
Parentage. A parentage
action is an action to legally determine the identity of a child's parent or
parents. A parentage action may be filed by the child's mother, the child's
father, or by some third party (such as the state) who has some interest in
formalize the parental relationship.
A parentage action is brought whenever the mother and father of the child
were not married at the time of the birth of the child. It may be brought for
many reasons, some of which are:
- Establishment of parentage for child support
purposes;
- Establishment of visitation rights;
- Establishment of parentage for inheritance
purposes;
- Establishment of parentage to allow the
courts a means to settle on-going custodial disputes between the mother
and father.
Jurisdictional Requirements
In order to for Kansas courts
to properly consider Child Custody, Visitation or Support issues, the State
of Kansas must have
"jurisdiction." Jurisdictional requirements are different for
different issues.
Initial Child Custody and
Visitation. Jurisdiction for Child Custody and Visitation issues
is governed by the Uniform Child Custody Jurisdiction Act (UCCJA). Generally,
this Act (which has been adopted in all 50 states and has been substantially
incorporated into a similar federal law) provides that a State has the power
to determine child custody and visitation issues under one of the following
situations:
Child Custody and Parental Access
(Visitation)
Initial Child Custody and Visitation
Actions. When no action involving custody of the child has been
filed before:
- The state is the child's home state within 6
months before the commencement of the proceeding, or
- The state is the child's home state had been
the child's home state within 6 months before commencement of the
proceeding and the child is absent from this state because the child's
removal or retention by a person claiming the child's custody or for
other reasons, and a parent or person acting as parent continues to live
in this state.
If the child has not lived in any one state for 6 months or longer and no
action involving custody of the child has been filed before, a State may assume power over the child if it
is in the best interest of the child that a court of this state assume
jurisdiction because (A) the child and the child's parents, or the child and
at least one of the child's parents, have a "significant
connection" with this state, and
(B) there is available in the state substantial evidence concerning the
child's present and future care, protection, training, and personal
relationships.
For purposes of child custody and visitation, it is important to know
where the child lives — not
where either the parent has lived. Although the parent against whom a child
custody or visitation action has been filed may not have any connection with
the state in which the action is filed, if the child satisfies the UCCJA requirements, sufficient
jurisdiction is established.
Actions Subsequent to Initial Child
Custody and Visitation Decree (Modifications). After child
custody and visitation issues have initially been determined, the court which
made those determinations retains the power to make orders regarding those
issues — regardless of whether one of the parties moves outside that state.
If both parties move out of that state, however, the initial court may lose its
power to deal with continuing child custody and visitation issues. In such a
case, the state where the child has lived for 6 months or more would become
the appropriate place for further child custody and visitation litigation.
Child Support. Regardless
of where child custody and visitation issues may properly be litigated, in
order for a state to properly determine issues of child support, only that
state which satisfies one of the following requirements may issue a valid
order of child support: (1) after the birth of the child, the parties lived
together in the state in which an original child support order is sought and
one of the parties continues to live in the state; or (2) the person against
whom an original or modified child support order is sought has been served
with process in the case within the state seeking to exercise jurisdiction;
or (3) the person against whom an original or modified order of child support
is sought has voluntarily consented to exercise of jurisdiction by the state;
or (4) in the case of a requested modification, a valid child support order
was issued by that state and no other state has assumed jurisdiction of the
child support issue.
Starting the Proceedings
The first step taken in starting any domestic action is the filing of a
"petition." The petition is a simple, straight forward legal
document that contains basic information for the court's information. The
person who first files the petition is called either the
"Petitioner" (if the parties were previously married), or the
"Plaintiff" (if the parties were not married and the action is one
for parentage). The person against whom the action is filed is called either
the "Respondent" (if the person filing the action is the
"petitioner") or the "Defendant" (if the person filing
the action is the "plaintiff."
Change of Child's Name
Kansas law requires that in order
to change a child's name from that originally given, a Petition for Name
Change be filed, or that the statutes governing a particular kind of action
provide for such a name change. Kansas
cases indicate that a child's name may be changed if the court finds the
change to be in the best interests of the child. The Courts do not have the
power within either a divorce action or a parentage action to change the name
of a child. Kansas law
expresses no preference that a child be named after the father. Where there
is opposition to a name change, the Court must decide what would best serve
the interests of the child.
Court Costs
"Court costs" are the fees required by the courts in order to file
a court action. As of July 1, 1996,
a filing fee of $66.50 must be paid in order to file an initial action. A
filing fee of $20 is required for any request for a change of custody, visitation or child support filed after an
initial decree is entered. Other "court costs" may include service
fees, deposition expenses and other similar expenses.
Temporary Orders
At the time a petition is filed, the person filing the petition can request
that various orders be issued by the court. These are called "temporary
orders" and they govern the relations between the parties from the time
they are entered until the decree is issued. If temporary orders are not
obtained at the time of the filing of the petition, it is most likely that a motion
and hearing will need to be scheduled in order for the court to issue such
orders. There are many different orders that can be issued on a temporary
basis including:
- orders restraining the parties from
bothering or harassing one another;
- orders granting temporary residential
custody and visitation of children;
- orders for temporary child support;
If you are seeking temporary support for a minor
children, a document called a "Domestic Relations Affidavit"
will have to be completed by you and filed with the court. This Affidavit
contains information about the occupation of the parties, the parties'
incomes, the number of children the each of the parties has and the ages of
those children, the monthly estimated expenses and debts and the amount of
support requested to meet those needs.
If an initial decree has already been entered, the Court may or may not
enter Temporary Orders., depending on the need shown and the danger to the
child, if any, shown by appropriate filings.
Serving the Papers
After the petition or motion for modification is filed,
the other party must receive proper notification that the petition or motion
for modification has been filed. There are a number of ways the other party
can be notified.
- Entry of Appearance. The other party may sign a written
"entry of appearance." This is a document prepared by our
office for your spouse to sign indicating that the petition has been
received, acknowledging that the Court has jurisdiction and waiving any
requirement that the petition be handed to him or her by a sheriff or
other person authorized to serve process. The signing of the "entry
of appearance" does not mean that the party has agreed to any of
the requests contained in the petition or other papers filed. The "entry
of appearance" can be signed in our office or mailed with the
necessary papers. The entry of appearance must be signed in front of a
Notary Public.
- Formal Service. If the other party is unwilling to sign an
entry of appearance, if you are not comfortable handling the service in
this manner or if you are not sure how the other party will react to
receiving a Petition or Motion, we can have the papers which need to be
given the other party by either the Sheriff or a person who is specially
appointed by the court to serve legal papers (a "special process
server"). This is usually an easy process. A party to an action is
not authorized to deliver service.
One Lawyer or Two?
It is neither practical nor ethical for a lawyer to represent both parties to
a domestic relations action. Although it is possible for only one person in a
domestic relations action to be represented, we cannot represent both
parties. When a domestic relations action has been filed there is an inherent
conflict between the interests of those two people. As your lawyers, we can
only advise you.
There are rare instances in which you or your spouse may have agreed on
everything. In those cases, we may be able to draft the necessary documents
setting forth that agreement; however, we will not be able to advise your
spouse of the legal meaning of those documents. If your spouse has any
questions, he or she should consult another lawyer.
Child Custody and Visitation
The Court will make whatever orders the Judge finds necessary to protect the
children. The Court's orders will cover items of child custody, visitation
with the children, and the support of the children. Custody is decided
according to the "best interests" of the child.
Custody
"Custody" in Kansas
does not necessarily have any thing to do with the person with whom a child
lives. Custody orders primarily deal with the relationship between the
parents, rather than the relationship between a parent and a child. Custody
deals with how basic decisions are handled between parents — issues of health
care, education, and general welfare of the child.
Joint Custody. Kansas
has adopted "joint custody" as the preferred form of custody of
minor children. "Joint custody" does not mean your children will
necessarily spend equal time with both parents. "Joint custody"
means that both parties have equal rights and responsibilities with respect
to their minor children, and that neither party's rights are superior.
"Joint custody" is a tool which seeks to encourage communication
between parents about the basic needs of their child and seeks to foster
agreement regarding the health, education and welfare of the child. Although
a divorce ends the legal relationship between you and your spouse as partners
in marriage, it does not end the legal relationship that each of you has as a
parent to the children. Each of you will continue to have, after the divorce,
the same obligations as a parent that you had before the divorce. You will be
awarded "joint custody" of your children and the duty of guiding
their education and religious training; selecting their doctor and dentist;
being responsible for their discipline, and other matters. Unless the Court
decides that joint custody is not in a child's best interest, both parties
will continue to be involved in these major decisions.
Sole Custody. "Sole
custody" is not preferred in Kansas
and is ordered only in highly unusual circumstances. Where sole custody is
ordered, the parent having sole custody is the sole decision maker regarding
matters of health, education and welfare. Sole custody is generally ordered
in one of a number of specific situations: agreement of the parties;
demonstrated abuse of the child by one parent; or when there is such a high
level of dispute between the parents regarding the basic needs of the child
that one of the parents must be designated as the primary decision maker.
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