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CHILD CUSTODY IN KANSAS
We provide this page as a public service to answer some of
the many questions asked about Kansas
domestic relations law. Keep in mind that the information is general and that
specific questions about your own case should be addressed
to a qualified lawyer. Despite what many people think, domestic relations is
a complex area of the law and what may seem a simple issue – or a
simple question – is often much more complex.
Although domestic relations is governed primarily by state
statutes, individual judges determine how those to apply those statutes in
any individual case and situation. Domestic relations law is not
“black-and-white” and the statutes do not specify exactly how the
courts are to decide any case or issue. Instead, the applicable statutes
provide judges and attorneys only broad principles to apply in deciding how
to determine domestic relations issues – such as “equitable distribution,”
“best interests of the child,” and to decide what is “fair
and appropriate” in any case.
CHILD CUSTODY, PARENTING TIME, AND VISITATION IN KANSAS:
A Guide by Ronald W Nelson, PA
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.
Rights
of Child Custody:
Kansas law
provides that every “parent” has a right to “custody”
of his or her own child. The Kansas
statutes provide:
K.S.A. 38-141 (2000):
(a) As used in this section:
(1) “Child” means a
person under 18 years of age; and
(2) “parent”
means and includes a natural parent, an adoptive parent, a stepparent or a
guardian or conservator of a child who is liable by law to maintain, care for
or support the child.
(b) It shall be the public
policy of this state that parents shall retain the fundamental right to
exercise primary control over the care and upbringing of their children in
their charge. It is further the public policy of this state that children
shall have the right to protection from abuse and neglect.
(c) Nothing in subsection (b)
shall be interpreted to expand, diminish or in any
way alter the scope of rights of parents or children to the extent such
rights exist as of the effective date of this act. [July 1, 1996]
(d) Any parent may maintain a
cause of action in state court or in any court of competent jurisdiction for
claims arising under the principles established in subsection (b). Any person
authorized by law to act on behalf of a child may maintain a cause of action
in the name of such child in any court of competent jurisdiction for claims
arising under the principles established in subsection (b).
History: L. 1996, ch. 229, sec. 159; July 1.
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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The
information provided on these pages is not intended to provide legal advice
and does not create an attorney-client relationship between the viewer and Ronald W Nelson, PA. See our disclaimer page for
further information.
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