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CHANGES TO KANSAS CHILD CUSTODY LAW (1999) 1999 House Judiciary
Committee 1999-2000
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Needed Changes in Kansas Child
Custody Law – 1999 HB 2002 Members of the Committee: My name is Ronald W. Nelson. I practice family law in Overland
Park, Kansas. Approximately 80% of my practice is domestic law, including
divorce, parentage, child custody, and other areas of domestic relations law,
both as an original action and post decree. I am also heavily involved in
appellate advocacy in domestic cases, with decided cases in all areas of
domestic practice. My clientele is fairly evenly split between representation
of men and women and residential and non-residential parents. I am a member
of the American Bar Association Family Law Section, serving on the Custody
Committee, the Kansas Bar Association, serving as Many parts of this bill are needed changes in the law.
Unfortunately, language often acts as an impediment in the law. Although
lawyers usually know what is meant by the phrase “visitation,” and although
lawyers and judges all understand that by merely designating contact with a
parent as “visitation” is in no way meant to denigrate a parent or reduce the
importance of that parent, laws are read and interpreted by the general
public in ways that may not be intended by the drafters. “Visitation” is
generally thought of as the periodic contact exercised by a parent with whom
a child does not normally live. The term “visitation” is essentially a hold
over term from earlier times when one parent was grant sole legal and
physical custody of a child with the other parent being allowed to see the
child (or “visit” the child) periodically. Today, however, most psychologists
agree the term “visitation” is now outdated and that, in some situations, use
of the term itself can cause undue conflict between parents. “Visitation” in
today’s society implies that one parent is no longer a “full” parent, but has
only a limited right to see and interact with the child.[1]
Because of the problems with terminology, various other terms are now used in
the legal community to describe visitation, including: “access,” “partial
custody,” “parent-child contact,” “parenting time,” “physical placement,” or
other similar terms.[2]
“Visitation” rights and decisions by the courts regarding
the access to a child encompasses more than merely providing for the physical
transfer of the child from one person to another, however. The law regarding
visitation determines the type, nature and frequency of access which a person
not having physical custody of a child is allowed with the child. Thus,
changing those references in Kansas law to “visitation” seems to be past time
and a needed historical change. In looking at those changed terms, however,
it should be noted that not all places where “visitation” appears can it be
replaced by “parenting time.” In making reference to “visitation rights” the
UCCJA, for example, is intended to include not only parental rights of contact with a child, but visitation rights by
parents, step-parents, grandparents, uncles, aunts, and others who may have
been granted rights of access and contact under the laws of the state in
which a custody decree may be entered (See e.g. K.S.A. 38-1302 and 38-1310). It must be understood, however, that a change in
terminology is just that and that as times change, terminology used
inoffensively in past times becomes offensive because of the way it is used
in practice. Thus, a change in terminology is not a panacea. Litigation
regarding access to a child and the resulting continual interaction between
parents and third parties about access is one of the most troubling areas of
domestic law and is often a cause of relitigation.[3]
More than any other area of the law, domestic litigation (and especially
litigation involving decisions regarding child custody and access) involves
interpersonal relations and engenders high emotions. An intensely loving
relationship, when it dissolves can easily turn into just the opposite – a
relationship with a heart of intense hatred, resentment, anger at being
rejected by someone with whom that person previously had a close and loving
relationship. Oftentimes, the hate after the divorce is as intense as was the
love at the most intense parts of the relationship. It must be realized that the vast majority of cases in
which children are involved have few, if any problems during the entire
minority of the children. Most parents are able to work together toward the
best interests of their children and, when properly advised, are able to
resolve any issues between them without involvement of either attorneys or
the court system. Unfortunately, there is a significant minority of cases
that cause the vast majority of problems in the courts. Parents who are so
bent on retribution against the other parent for real or perceived wrongs,
whether current or historical, will (and constantly do) use the law for their
own means and continually enlist the processes of the courts in that
campaign. Because of this unfortunate tendency, it is essential that the laws
dealing with domestic relations consider both sides and primarily the rights
of the children involved in that dispute. Because every domestic case is
different (although they may involve similar disputes, similar emotions and
similar requested resolutions), it is extremely important to make the law as
flexible as possible leaving the detailed resolution of cases to the local
judge. The local judge is the person best able to deal impartially with such
disputes. The legislative crafting a detailed, cookie-cutter solution for all
cases would cause more difficulties, than it would solve. I want to focus my testimony on the enforcement of
visitation procedures. Hearing Officers. A small word change, but a
dramatic terminology change is found in the amendments to the mediation
provision of the visitation enforcement statute. Currently, many post decree
visitation issues are dealt with by court hearing officers. This bill changes
current law to require such disputes be heard by a judge rather than by a hearing
officer or judge. This change is likely to increase the number of cases
heard making it more difficult to obtain a timely hearing. In the urban
districts it is already difficult to obtain a quick hearing because of high
case loads. The use of hearing officers provides a manner for quick
presentation of disputes (which are usually resolved on one hearing), leaving
for the district judges the more difficult and complex cases. Visitation enforcement. One of the important rules in
domestic relations is that punitive actions, by one party or by the court’s
often extend the cycle or cause other ongoing problems. The provisions in the
bill that the court “may impose” a $100 civil penalty on “first offense” and
a $250 civil penalty for a “second offense” would be counterproductive and
would encourage misuse of the system, rather than solving the problems it is
sought to remedy. Currently, judges may impose such penalties when the judge
issues an order and direct or indirect civil contempt is found. Adding such
“civil penalties” for visitation violations in a hodge-podge manner, as is
proposed in this bill will only tend to exacerbate those problems. Instead,
I believe the legislature should enact the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA) that was recommended for passage just this past
year by the National Conference of Commissioners on Uniform State Laws
(NCCUSL) and that was introduced this past year as HB 2790, should be passed.
The UCCJEA includes a uniform and consistent scheme for enforcement of both
custody and visitation orders. This uniform law is an update of the Uniform
Child Custody Jurisdiction Act that has been passed in all 50 states and
other territories of the United States. The enforcement procedures in the
UCCJEA would address the concerns expressed for enforcement of visitation
rights, while at the same time providing a uniform method for in-state and
out-state custody and visitation orders enforcement. The UCCJEA modifies the
UCCJA in consideration of all those legislative acts that have been passed
since the original passage of the UCCJA in 1968, including: the federal
Parental Kidnapping Prevention Act (PKPA), the federal Violence Against Women
Act (VAWA), the Hague Convention on International Child Abduction, and the
federal International Child Abduction Remedies Act (ICARA). Included are
uniform enforcement procedures that track these other laws and provide a well
thought out and uniform manner of dealing with actions by a parent that
interfere with a parent’s custodial or visitation rights. Many of the
remedies of the bill before the committee are included in the UCCJEA, but in
more effective and uniform format. Child Support. Included in the current bill are
various provisions regarding child support and a presumption that “[d]etermination of the amount to be paid by a parent for
support of the parent's child or children shall be based on the principle
that both parents have an equal duty to provide support.” In almost every
case, one or the other or both parents feel the support paid should be
different. That is usually the nature of disputes. A study to be published in
the near future by Laura Morgan, a national expert on child support and child
support guidelines, has found that the presumptive child support determined
by guidelines in the vast majority of states provides less support for a
child than USDA criteria for expenditures in an intact family. This is
telling since it is obvious that a family will generally need to spend more
as a whole once separated than it did while still intact. Aside from the fact that Kansas currently
has child support guidelines in force that fairly and justly determine the
child support to be paid by separated parents, this language has the
potential of causing significant problems within the system. What does this
language mean? How will it be used by parents battling over their children
and the amount of child support to be paid? It is apparent that, unless
parents have equal incomes and resources, they are not able to provide
“equal” support for their children. Joint Shared Custody. Probably the most troubling
provisions in this bill relate to requiring “joint shared custody of the
minor children” including provision for “equal parenting time.” It is
generally recognized that access by both parents should be flexible and that
the more parents can work with each other to maximize parental contact, the
better for the child. The time spent in “visitation” may be from minimal
visitation in which the nonresidential parent sees the child on an irregular
and infrequent basis[4]
to what may essentially be equal residency with both parents. Most
psychologists and courts encourage nonresidential parents to have as much
contact as practicable, so long as the stability of the child is not
adversely affected by the contact.[5] Often,
however, because of continuing conflict between parents, because of anger or
hostility built up over their relationship, or because of jealousy,
suspicion, or distrust arising after the parties’ separation, the parents are
unable to put aside the issues between them and arrive at a mutually
agreeable access schedule. In those cases, the court may have to become
involved. The
Kansas appellate courts have held that only in the most unusual circumstances
should alternating of a child’s residency be considered and then, generally,
only where both parents believe it to be appropriate. Frequent alternating of
children between households is normally not in the best interests of the
child and should be looked upon with skepticism. Generally, only in those
cases where the parents are able to work together in a mature and cooperative
fashion is it appropriate to consider a sharing of custody. Because the parents
are required to work closely and intimately, if those parents have issues
held over from their own intimate relationship, it is as likely the child
will be harmed by that mandatory relationship than helped by it. Because
there is more need for contact, there are more points at which emotions can
explode. Good shared custody relationships require flexibility, respect and
detailed interaction. If such a relationship is forced, it has the potential
of severely damaging the children and any hope of a workable relationship
between the parents. Further, such required shared parenting time often is
not age appropriate. Psychologists agree that the younger the child, the more
the need for stability as to where the child is living – and that a shifting
of residence between parents is detrimental.
___________________________________ Ronald W. Nelson Suite 117; 11900 West 87th
Street Parkway Lenexa, Kansas 66215-4715 Telephone: (913) 312-2500 Email: ron@ronaldnelsonlaw.com |
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