Child Custody, Parental Access and Child Support in Kansas:
A Guide (continued)
Residency
Residential Custody.
Whether the court orders "joint" or "sole" custody, one of you will usually be designated as
the "residential" custodian with whom the child will live most of the time. The residential custodial
parent is responsible for the child on a day-to-day basis. Residency may be on a primary residency basis — that
is, where one parent has the children more than fifty percent of the time — or on a shared residency basis — that
is, where the parents are able to share time with the child or children at or about fifty percent of the time.
Parental Access or Visitation
Visitation.
In addition to determining issues of custody, the Court will also grant rights of visitation. The right of visitation
is as much the right of the child as it is the right of the non-residential parent. The purpose of visitation is
to permit the child to continue to have contact with both parents to as great an extent as possible. Usually, the
Court will order that the non-residential parent have "reasonable visitation" with the child, rather
than making a specific rigid and inflexible schedule of visits which may in the future prove to be unsuitable due
to the child's activities, school events, health considerations, vacation plans, and the like. "Reasonable
visitation" requires that the parents cooperate with each other as mature adults to ensure that visitation
takes place, that it is for the benefit of the child, and that it is convenient to the schedules of both parents,
and the child themselves. "Reasonable visitation" includes providing reasonable notice to the child and
the parent with whom the children resides of the visiting party's intent to exercise visitation and also implies
that each party shall, without fail, follow through on any visitation plans agreed upon, unless circumstances beyond
his or her control make this impossible in which case notice of cancellation of visitation shall be made as soon
as possible. If you and your spouse can agree on the details of visitation, the Court will usually approve the
plan which you have worked out. A typical pattern is to visit on alternating weekends, a weekday evening every
week, several weeks during the summer, some time around birthdays, Christmas and other holidays, plus additional
or different times as you may agree. If "reasonable visitation" cannot be arranged between the parents
by agreement, either of them may ask the Court for an order specifying visitation times on a rigid schedule.
What Happens if There is a Dispute Between the Parents
About What is Best for the Child?
Mediation.
If there are any issues regarding custody or visitation that cannot be worked out between the parents, a "mediation"
conference with a neutral mediator may be requested to see if you and your spouse can work out an agreement about
the child.
Home Study.
If mediation does not bring about an agreement on disputed custody and visitation issues, the court may order a
"home study." A home study is an investigation into various aspects of the home life of the parties'
child. Included in a home study may be interviews with the parties, friends, neighbors, relatives and, on some
occasions, the children themselves. When the investigation is complete, a home study report is prepared and submitted
to the court. This report is confidential and the parties generally cannot have access to the report.
Trial.
If, after mediation, there are still issues regarding custody or visitation that cannot be worked out between the
parents, a "trial" will be scheduled. Testimony and evidence is presented at the trial to the judge assigned
to a case showing what would be in the best interests of the child. Although the judge will have benefit of any
child custody investigation that has been performed, the court will make its own decision about what is in the
best interests of the child at the conclusion of the trial.
Child Support
Child support is determined by statewide child support guidelines. Child support is usually paid by the "non-custodial"
parent to the custodial parent. Child support is a duty of both parents, and neither parent can "bargain it
away" by agreement with the other parent. Child support is the child's right to be supported by the child's
parents and the Court will protect his right, even if there is an agreement between the parents that no child support
shall be paid. Child support is determined by a number of factors including: the age of the child, the number of
children to be supported, the parents' incomes, health insurance premiums, child care costs and other factors.
Child support is normally payable until the child reaches
the age of majority (which is 18 years of age or June 30 if the child's 18th birthday occurs while the child is
attending high school). The obligation to pay child support may be extended beyond the child's majority by agreement
between the parties, but cannot be imposed by the Court past majority.
Denial of Visitation for Non-Support — Non-Support
for Denial of Visitation
Kansas law provides that a parent may not deny visitation simply because the other parent has not made timely child
support payments. Similarly, a parent may not refuse to pay child support because visitation has been limited or
denied. The obligations to pay child support and allow visitation are independent and are both rights of the child.
Denial of access to the children should not be used as a "lever" to enforce a financial obligation which
exists between the parents.
Settlement Agreements
If the parties to a child custody, visitation or support action are able to come to an agreed resolution of the
issues in your case, a Settlement Agreement may be prepared. The Settlement Agreement is a contract which includes
provisions relating to support, insurance (health and life), claiming dependents as exemptions on income tax returns,
and other matters relating to the child.
It is our earnest desire that, with our help, you can reach
such an agreement. If so, it will be signed by both you and the other party and filed with the Court at the time
of the final hearing.
If you cannot agree, the Court will decide the issues presented.
If the Court makes the decision, you are bound by it, even if you do not agree with the decision. Therefore, it
is in your best interest to reach an agreement prior to the final hearing. The Court will usually accept the terms
of the Settlement Agreement reached by the parties, but reserves the power to reject any provisions it deems not
"in the best interests of the child."
Life and Health Insurance
One or both of the parties may be required to keep insurance in force to protect the payment of child support payments
not yet made.
The Kansas child support guidelines provide that the parents
of minor children will be required to pay the uninsured costs of medical treatment for their children in proportion
to the parent's respective incomes. It is, therefore, important that medical insurance for children be maintained
whenever it is available.
Child Medical Expenses
The Kansas child support guidelines provide that in addition to any child support amount ordered paid, the parties
are to share any uninsured medical expenses (including deductibles) on a proportional basis. that a change in circumstances
sufficient is one that must be of a substantial and continuing nature to make the terms of the initial decree unreasonable.
Modification often occurs merely because the child has grown older and the child's needs have changed, although
there may be more substantial changes, such as one parent moving out of state or getting married. Every situation
needs to be evaluated on its own facts to decide if there is such a change in circumstances that a change in the
existing custody or visitation order is warranted.
What is a "Material Change in Circumstances?"
Those circumstances that may constitute a "substantial change in circumstances" depend on the individual
factual situation and is ultimately a determination of the judge before whom the matter is heard. Kansas case law
indicates that a change in circumstances sufficient is one that must be of a substantial and continuing nature
to make the terms of the initial decree unreasonable. Modification often occurs merely because the child has grown
older and the child's needs have changed, although there may be more substantial changes, such as one parent moving
out of state or getting married. Every situation needs to be evaluated on its own facts to decide if there is such
a change in circumstances that a change in the existing custody or visitation order is warranted.
Moving Out of State
Kansas law requires a parent who has been awarded a child's custody to give written notice to the other parent
at least 21 days before changing the child's residence to another state or removing the child from Kansas for more
than 90 days. The notice must be sent by registered or certified mail, marked "return receipt requested showing
address where delivered" and "deliver to addressee only." Failure to give this required notice may
result in a finding of "contempt of court." If the move is opposed by the other parent, the person seeking
to move with the children may need to obtain permission from the Court. In such a case, the court determines whether
child may be moved out of the state by examining what would best serves the overall interests of the child.
Confidentiality
We must have all the facts in order to adequately represent you. This includes facts that you feel may hurt you
as well as facts which may help you. The only way we have to properly advise you is if we know everything you know.
Anything you tell personnel in this office is strictly confidential and will not be disclosed without your permission
— these confidences are protected by the "attorney-client privilege." Similarly, it is very important
that you not discuss any advice or recommendations we may have given you with anyone else. Disclosure of attorney-client
confidences to any third person waives the attorney-client privilege. Because of this fact, please do not be offended
if we ask that you not bring friends or relatives with you into a meeting with your attorney. We understand your
need for moral support, but we are very concerned that you receive unencumbered advice regarding your specific
situation which we cannot do with a third party in the office.
Attorneys' Fees and Expenses
The fees charged by our firm are based upon the time actually expended on your case, the complexity of the case,
the novelty of the issues involved, and several additional factors. No divorce case is like any other, so "standard
fees" are really impossible. The exact fee will vary with the services your case requires.
Our basic service includes the initial conference; the preparation
and filing of the Petition; the preparation of an Entry of Appearance to be signed by your spouse, or arranging
for the sheriff to serve a copy of the Petition; conferences to obtain information from you concerning your income
and expenses and to make recommendations about and support; routine settlement negotiations with the adverse party
or attorney; preparation or review of Final Journal Entry; and representing you at the Court hearings.
We require the payment of a refundable deposit ("retainer")
when you decide you want our firm to represent you in any matter and we require full payment of any fees accumulated
by you by the time of the final hearing. We will discuss our fees with you at this first meeting, and our understanding
will be expressed in a written contract which you may terminate at any time.
The degree of cooperation and agreement between you and
the other party regarding matters of child custody, child support, and visitation has a direct effect on the amount
of time which we will have to spend on your case and, therefore, the fees charged by our firm.
Award of Attorneys' Fees
If a trial is necessary, the Court may order either party to pay some (but usually not all) of the other party's
legal fees. As our client, you are responsible for paying our agreed fees and we will give you full credit for
any payments made by your spouse. The power to award attorneys' fees is solely in the discretion of the court and
the award of any attorneys' fees cannot be relied upon with any certainty. Regardless of any award of attorneys'
fees by the Court and regardless of any agreement between the parties regarding payment by an adverse party of
any part or the whole of the attorneys' fees incurred by you, you remain indebted and responsible to the firm for
the full amount of Attorney's fees and expenses incurred.
Your Responsibilities
We expect you to be cooperative and truthful. If you are not, we will not continue to represent you. You will need
to supply us with any and all information you may have regarding your financial assets and liabilities. This is
the only way we will be able to determine how best to advise you in the process of separating out the property
and debt aspects of the case. We also expect you to handle your financial commitments to our office in a prompt
and business-like manner. Please notify us of any change of address or telephone number or if you learn of anything
that may affect your case.
General Suggestions
Well-meaning friends and associates will, no doubt, offer you advice about your case. Frequently such advice is
not accurate and you should be cautious in following it. The facts surrounding your children are unique and they
differ from every other case. Friends may help with the personal and emotional crisis, but you should leave the
legal advice to us. Proceedings regarding children are very emotional — even if there are few disputes between
the parties. Sometimes one parent will try to use the children in an attempt to punish the other parent. Prepare
your child for any matter involving them without poisoning their mind about the other parent. There are many good
books available to help both you and your child through the process. Obtain professional help if possible. Attempt
to cooperate with your spouse where the children are involved.
It is in your best interest to come to a fair and equitable
resolution of the issues in your case and a reasonable agreement concerning the support, custody and visitation
with children. Emotional "blackmail" or a desire for revenge for past or present transgressions can cloud
the issues and almost always results in increased legal fees. Discuss support and division of property items with
your spouse, if possible. Try to be fair.
Thank You
We appreciate the opportunity to be of service to you at this difficult time. Thank you for your trust and confidence.
If you have any questions or concerns as your case proceeds, please let us know. The more communication there is
between you and our office, the better we will be able to serve you. You should know that there are various matters
which you should take care of after the completion of your divorce case, including changing of your Will, making
provision for your children and other matters. Our office provides various additional services that may be helpful
to you at the end of your divorce.
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