TERMINOLOGY USED IN KANSAS FAMILY LAW CASES
An important consideration in any matter dealing with children is the terminology used. Kansas has recently changed its law to recognize a clear definition of the various terms used:
Incompatibility. ”Incompatibility” means that the husband and wife is broken to a point that they do not and cannot get along, they don’t want or cannot live together any longer, and that either one or both of them do not want to be married any longer. It means that their relationship cannot be easily repaired or that either the husband or wife does not want it repaired.
Legal Custody. Legal custody defines the decision making powers between parents. Kansas law presumes that both parents should share decision making power and, in the absence of some specific finding that the child is at risk if shared decision making is ordered, the court will order what is termed “joint legal custody.”
“Joint Legal Custody” does not have anything to do with the person with whom the child lives. It only has to do with decision-making. It means that both parents have equal rights – and responsibilities – for the care of their child, including daily care and support.
“Sole Legal Custody” is the alternative to “joint legal custody” and may be ordered by the court only in those circumstances in which the court makes a specific finding that it is not in the best interest of the child that a parent have the power to participate equally in decision making regarding the child. Even if the court grants “sole legal custody,” the parent not granted sole legal custody has the right to obtain any and all information regarding the child’s health, education and welfare unless the court makes an additional specific finding that access to such information by the other parent would be harmful to the child.
Residency. Residency is the designation used to identify the parent with whom the child usually lives. This parent has no more or less right to decide matters regarding the child than does the other parent – this designation is simply a recognition of a fact that the child spends more time living with one parent than the other.
Parenting Time. Parenting time is the time that a parent is designated to spend with his or her child. This is what has, in the past, been commonly known as “parental visitation.” The terms have changed, however, to recognize that parents do not “visit” their children, but that both parents are an integral part of their child’s life and that whatever time is spend with the child by a parent, whether as a primary residential parent or non-residential parent.
Visitation. Visitation is the designation used for the time spent by a child with a third party (i.e. a non-parent, such as a grandparent, aunt, uncle, step-parent, sibling or other third party). A third party does not have the right to visit the child unless the parents agree to that visitation or the court orders that visitation on appropriate motion and order.
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 custody, residency, parenting time (parental visitation) or support order in Kansas if there is a “change in circumstances” from the time when a previous order was entered. The circumstances that may be determined to be such a change vary from case to case and depend on whether the previous orders regarding the child were entered by agreement or by court order after a contested hearing.
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 parenting time or 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, Residency, Parenting Time, Visitation or Support issues, the State of Kansas must have “jurisdiction.” Jurisdictional requirements are different for different issues.
Child Custody Jurisdiction. Jurisdiction for Initial Determinations of Child Custody, Residency, Parenting Time and Visitation. Jurisdiction for Child Custody, Residency, Parenting Time and Visitation issues is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Prior to July 1, 2000, these cases were governed by the Uniform Child Custody Jurisdiction Act (UCCJA). Generally, these Acts (one or the other of which have been adopted in all 50 states and which have 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 when no action involving custody of the child has been previously been filed:
(1) The child has lived in the state for a period of more than 6 months before the commencement of the proceeding, (“home state” jurisdiction) or
(2) Within 6 months prior to initiation of the action the state had been the child’s home state for a period of more than 6 months 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, (“home state” jurisdiction) or
(3) If the child has not lived in any one state for more than 6 months within 6 months of the filing of the action (there is no “home state”), and no action involving custody of the child has been filed before, a State may assume power over the child if (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. (“significant connection” jurisdiction) or
(4) If there is an “emergency situation” such as abandonment of the child by the child’s parents, a court of this state may exercise jurisdiction to protect the child until a court with appropriate jurisdiction is able to exercise that jurisdiction (“emergency” jurisdiction).
For purposes of child custody, residency, parenting time and visitation determinations, it is important to know where the child lives—not where either the parent has lived, although it is not always determinative of the state that has jurisdiction over the case. Although the parent against whom a child custody residency or parenting time action has been filed may not have any connection with the state in which the action is filed, if the child satisfies the UCCJEA requirements, sufficient jurisdiction is established.
Jurisdiction to Modify Child Custody Post-Decree. Actions Filed After a Decision on the 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 residency, parenting time 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 or the state that has the more “significant connections.”
Support Jurisdiction. Regardless of where child custody, parenting time, 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. Every state has enacted and must comply with the provisions of the Uniform Interstate Family Support Act (UIFSA) in determining such jurisdiction for child support.
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.”
Court Costs. The fees required by the courts in order to file a court action. As of July 1, 2002, a filing fee of $110.00 must be paid in order to file an initial action. A filing fee of $25 is required for any request for any motion to change legal custody, residency, parenting time or visitation provisions or to modify the amount of child support paid which is filed after an initial decree is entered. There is no fee to register a foreign child custody, residency or parenting time order or child support order in the state for enforcement purposes. Other “court costs” may include service fees, deposition expenses and other similar expenses.
Temporary Orders. When a petition for divorce or parentage determination is filed, the person filing the petition can request that various orders be issued by the court, called “temporary orders.” These temporary ordrs 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 you are seeking a temporary order for child custody, residency, or parenting time, Kansas law requires that a “parenting plan” be filed at the same time the request is made. This parenting plan must be served on the other parent at the same time the temporary orders are served. If the other parent disputes the parenting plan provisions proposed, that parent must file an alternative parenting plan if any modification of the original orders are requested.
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. If post-decree orders for a change of child custody, residency, or parenting time are sought, the parent seeking the change must give notice to the attorney who represents the other parent, if that other parent is represented.
Service of Process
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. An “entry of appearance” is a document prepared by our office that consentfor 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 of Process. If a person against whom a civil lawsuit (including divorce, separate maintenance, annulment or other family law case) is filed against is not willing to sign an “entry of appearance,” if the person filing the case is not comfortable with informal process, or if the person filing the case is not sure how the other party will react to receiving a Petition or Motion, the papers needing to be given to the other person can be “served” by the Sheriff or another independent person specially appointed by the court to serve legal papers (a “special process server”) hand the papers to that person. This is usually an easy process. A person who is the filing-party or the responding party in an action cannot deliver service validly.
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.
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. If child support was originally ordered by another state, the time that child support is required is determined by that state’s laws rather than the law of any state that may later modify any child support order.
DENIAL OF VISITATION FOR NON-SUPPORT – NON-SUPPORT FOR DENIAL OF VISTIATION
Kansas law provides that a parent may not deny parenting time simply because the other parent has not made timely child support payments. Similarly, a parent may not refuse to pay child support because parenting time has been limited or denied. The obligations to pay child support and allow parenting time are independent and are both rights of the child. Denial of parenting time should not be used as a “lever” to enforce a financial obligation which exists between the parents.
If the parties to a child custody, residency, parenting time, 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 “material 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.
CHANGING RESIDENCE OF A CHILD
Kansas law requires a parent who has been awarded a child’s custody to give written notice to the other parent at least 30 days before changing the child’s place of residence or removing the child from Kansas for more than 90 days. The notice must be sent by 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 by considering the following factors, among others: (1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having parenting time rights; and (3) the increased cost the move will impose on any party having parenting time
Spousal support is commonly known as “alimony” or “maintenance.” There is no absolute right to spousal support in the state of Kansas and such an award depends on the individual facts of each case. In determining whether spousal support should be granted and the amount and length of such award, the court looks at the length of the parties’ marriage, the education and job experience of the parties, whether the parties agree that spousal maintenance is appropriate, whether some support is necessary to enable a spouse to complete an education or become self-supporting. There may be some circumstances in which the parties agree to provide spousal support because of available tax advantages. Spousal support may be deductible by the person paying the support and taxable to the person receiving the support.
Property and Debt Division
Equitable division. Kansas is known as an “equitable division” state. This means that the court has the power to decide how to distribute any and all property and debt that either you or your spouse have obtained — no matter when that property or debt was obtained, by whose efforts it was obtained, in whose name the property is titled, or where the property is located. This “property” includes real and personal property as well as financial accounts, retirement accounts and any other property “interests” either party may have.
By reviewing various factors, the court decides on a fair, just and equitable division of the property that the parties have obtained. The Court will not allow a wife to “take her husband to the cleaners.” Neither will the Court allow a husband to “cut his wife off without a dime.” The law requires an “equitable division” of the property, taking all factors into consideration. We will work with you to reach a fair division of your property (regardless of who paid for it, or whose name it is in).
Settlement Agreements. If you and your spouse are able to come to an agreed resolution of the issues in your case, a Settlement Agreement will be prepared. The Settlement Agreement is a contract that includes provisions relating to division of property and debt, support, insurance (health and life), responsibility for taxes, claiming dependents as exemptions on income tax returns, and other matters relating to the dissolution of the marriage.
It is our earnest desire that, with our help, you and your spouse can reach such an agreement. If so, it will be signed by you both and filed with the Court at the time of the divorce hearing.
If you cannot agree, the Court will decide how your property shall be divided. 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 divorce hearing. The Court will usually accept the terms of the Property Settlement Agreement reached by the parties.
In some marriages, the ability of the parties (and the Court) to divide marital property may be limited by an existing “premarital agreement” (also called an “antenuptial” contract).
If you believe that there is a premarital agreement which relates to your marriage, let us know as soon as possible, and bring us a copy of it.
Life and Health Insurance
Each spouse may have rights under various federal laws (COBRA, ERISA, TRA) to continue coverage under employer-provided group health insurance plans if he or she was an insured person under that policy of insurance. A notice to the employer that a former spouse wishes to elect continued coverage should be given within 30 days after the decree of divorce is filed at the Courthouse. If you do not have health insurance of your own, you may wish to consider electing to a continuation of your coverage under your spouse’s plan. The cost of any such continuation coverage will be the responsibility of the person requesting continuation coverage (unless you agree otherwise with your spouse or the court makes order regarding payment for that coverage).
While life insurance coverage for the benefit of a former spouse is not normally required, one or both of the parties may be required to keep insurance in force to protect the payment of child support, property division or spousal maintenance payments not yet made.
In addition, 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.
How Long Does It Take?
An “uncontested divorce” (a matter in which all issues are agreed between the parties before the divorce is filed) can usually be accomplished in sixty to eighty days from the date on which the petition was filed (or sooner if the Court agrees there is an “emergency” which justifies shortening the required 60-day waiting period).
A “contested divorce” (a matter in which there is any item, such as property division, support or child custody upon which the parties don’t agree) can delay the final hearing for many weeks or months, because more time must be reserved on the Court’s calendar for presentation of the evidence. A contested action may not be heard for three to twelve months from the date the petition was filed.
When is the Divorce Final?
The divorce is “final” on the day the Decree of Divorce is filed by the Clerk of the Court, if there is no appeal. This is usually on the same day the Decree is signed by the judge. In the event any order included in the Decree of Divorce is appealed, the divorce is not final until the appeal is decided.
You may not marry anyone except your spouse for thirty days after the divorce becomes “final” unless both agree to waive their right to appeal.
Moving Out of State
Kansas law only requires that one of the parties be a resident of the state on the day the petition for divorce is filed. There is no requirement that you continue living in the state after the petition is filed in order for Kansas courts to be allowed to grant you a divorce.
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.”
Sometimes divorce seems like the only solution. Often it is not. After a divorce action has been commenced, you may decide to change your mind and try to work things out. We encourage any efforts toward reconciliation. If you have reconciled, you should notify us as soon as possible. If you do reconcile, the divorce action can either remain on file or can be dismissed. If the case remains on file, the court may ultimately dismiss the case or request a hearing to resolve the matter. If an “answer” has already been filed in the case, the divorce action cannot be dismissed without written approval of both parties and their attorneys.
Don’t. You are married. Although this is not the nineteenth century and even though Kansas is a “no-fault” state, your spouse may attempt to use any perceived impropriety against you. If you are already involved with another person or cannot resist dating you should be prepared for the problems that may arise. Please tell us if you are involved in a relationship with another person or if you spouse suspects you are involved with another person. It is always better for us to find out from you than during a delicate negotiation period when we could have easily dealt with it in a less critical atmosphere.
As your attorneys we must have all the facts in order to adequately represent you. This includes facts that you feel may hurt you as well as those facts which may help you. The only way we can 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 and understanding by your friends and family, but we are also concerned that you receive unencumbered advice regarding your specific situation which we cannot provide 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 divorce service includes the initial conference; the preparation and filing of the Petition (or review of the Petition filed by your spouse); the preparation of an Entry of Appearance to be signed by your spouse, or arranging for the sheriff to serve your spouse with a copy of the Petition; conferences to obtain information from you concerning your assets, liabilities, income and expenses and to make recommendations about property division and support; routine settlement negotiations with your spouse’s attorney; preparation or review of Property Settlement and Support Agreement; preparation or review of Divorce Decree; preparation or review of forms required by the Kansas Bureau of Vital Statistics; and representing you at the Court hearing to obtain the divorce decree.
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 your spouse regarding matters of child support, visitation, and property division 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.
Awards 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.