CHILD CUSTODY, PARENTING TIME, AND THIRD PARTY VISITATION IN KANSAS:
A Guide by Ronald W Nelson, PA
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 third-party 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.
In order to for Kansas courts to properly consider Child Custody, Parenting Time, Third-Party Visitation or Support issues, the State of Kansas must have “jurisdiction” — that is, the power to decide the matter. 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 and Enforcement Act (UCCJEA) (in Kansas and in all other U.S. states except for Massachusetts). The UCCJEA provides that a State has the power to determine child custody and visitation issues under one of the following situations:
1. Initial Child Custody and Visitation Actions.
When no court action involving custody of the child has previously been filed, then a child-custody action can only be filed in the state:
A. Home State Jurisdiction
The child’s ‘home state,’ which is defined as that state:
a) in which the child has lived for six continuous months (excluding periods of temporary absence); or
b) in which the child lived for more than 6 months if the filing for child custody is within 6 months after the child lived in a state for more than 6 months (and a parent continues to live in that other state); or
c) in which a child who is less than 6 months old has lived “since birth.”
B. Significant Connection Jurisdiction
If the child does not have ‘home state,’ the UCCJEA provides that a child-custody action may be filed in that state in which:
a) the child and the child’s parents, or the child and at least one parent, have a ‘significant connection,’ and
b) there is available in that 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.
2. Modification of Child Custody Orders (Actions Subsequent to Initial Child Custody and Visitation Decree). 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.
Regardless of the place 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” are the fees required by the courts in order to file a court action. A filing fee of $196.50 must be paid in order to file an initial action. A filing fee of $62.00 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.
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” 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 Legal Custody. Kansas has adopted “joint legal custody” as the preferred form of custody of minor children. “Joint legal 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 legal 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 Legal Custody. “Sole legal custody” is not preferred in Kansas and is ordered only in highly unusual circumstances. Where sole legal 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.