Law Offices of Reed Walker, PALaw Offices of Reed Walker, PA2024-02-14T18:58:04Zhttps://www.reed-walker.com/feed/atom/WordPress/wp-content/uploads/sites/1503860/2023/12/cropped-icon-1-32x32.pngOn Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=473742023-12-12T05:32:29Z2023-12-12T05:32:29ZOn Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=468692023-10-24T04:49:23Z2023-10-24T04:49:23ZIn the Matter of the Adoption of V.A., Docket No. 126,006 2023 WL ______ (Unpublished Kan. Ct. of Appeals October 20, 2023. Seward Dist. Ct., J. Ambrosier, Affirmed). It is not an error for the District Court, under K.S.A. 59-2136(h)(2)(A), for a District Court to consider the best interests of a minor child as the basis for denying a stepfather’s petition to adopt his stepson. The district court erred by finding the natural father’s consent was unnecessary without also terminating his parental rights, but that error was harmless because the petition was not ultimately granted.]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=468632023-10-18T05:05:35Z2023-10-13T04:53:58Zhttps://www.kscourts.org/About-the-Courts/Programs/Child-Support-Guidelines.]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=468622023-10-18T05:05:43Z2023-10-11T00:15:50ZS.D.II v. L.D., Docket No. 125,231, 2023 WL ______ (October 6, 2023. Geary Dist. Ct. J. Boehm—Affirmed in Part and Dismissed in Part). An appellate court generally reviews a trial court’s order granting or denying a request to modify custody for an abuse of discretion. State, ex rel. Secretary, DCF v. M.R.B., 313 Kan. 855, 861-62, 491 P. 3d 652 (2021); In re Marriage of Grippin, 39 Kan. App. 2d 1029, 1031, 186 P. 3d 852 (2008). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. The party asserting the abuse of discretion bears the burden of proving the error occurred.
In deciding whether the district court abused its discretion, the Court of Appeals reviews the evidence in the light most favorable to the prevailing party to determine if the district court’s factual findings are supported by substantial competent evidence and whether they support the court’s legal conclusions. In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 704-5, 229 P. 3d 1187 (2010). In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998).
Overall, the paramount consideration of the district court in deciding custody or residency is the best interests of the children. Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). K.S.A. 23-3201. K.S.A. 23-3218(a) allows a district court to change or modify any prior order of custody, residency, visitation, and parenting time, when a material change of circumstances is shown. A twofold policy underlies the material change in circumstance rule. First, a reasonable degree of stability in a child’s important relationships contributes to the emotional, intellectual, and moral development of the child. Second, the court generally favors one-time adjudication of matters and opposes repetitive actions. In re Marriage of Bahlmann, 56 Kan. App. 2d 901, 908, 440 P. 3d 597 (2019).
In this case, in changing custody from father to mother, the specific issues mother presented were: an unwillingness to coparent; leaving the children with a person of whom father did not approve; inability to communicate, cooperate, and manage parental duties with father, as demonstrated by her refusal to provide father an updated address; unilateral decision-making regarding the care and custody of the children; and a failure to cooperate with the father to find a custodian to whom both parents agreed.
This case is a short course on the necessary elements for proving grounds supporting a change of custody, complete with examples of what not to do if you are the parent resisting the change.]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=468602023-10-18T05:05:49Z2023-10-06T22:09:45ZMarriage of J.H. and K.H., Docket No. 125,823, 2023 WL ______ (Unpub. Ct. of App. Sept. 1, 2023 Franklin Dist. Ct. J. Witteman reversed and remanded). The trial court excluded as hearsay the testimony of a detective who interviewed the mother of a minor child for alleged sexual abuse of the minor child by her mother’s husband, and another detective conducted a forensic interview with the child. A few months later, the same detective observed a DCF second forensic interview of the minor child. The detective testified the substance of the child’s second interview stayed the same, but she disclosed more information in the second interview. Mother’s attorney asked the detective to describe what the child said in the first interview. Father’s attorney objected that such testimony was hearsay. Mother’s attorney told the court the child was available to testify. The trial court sustained the hearsay objection. Mother argued such exclusion violated her due process right to fully present her case. The Court of Appeals agreed, apparently in part because the mother’s Fourteenth Amendment right to make decisions regarding the care, custody and control of her child was involved. While hearsay is an out-of-court statement offered to prove the truth of the matter asserted, an exception to that rule is found in K.S.A. 60-460(a), which is a statement previously made by a person [albeit a minor in this case] who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by the declarant while testifying as a witness. ]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=466532023-08-16T03:24:07Z2022-06-22T06:54:59ZJURISDICTION TO MODIFY PARENTING TIME—Ends When Child Reaches Age 18. Marriage of Lewis and Bush, Docket No. 124, 454, ___ Kan. App. 2d ____, ___P.3d.____ (June 10, 2022-Johnson-Judge Rokusek—Affirmed in part and dismissed in part). Pro se father appeals court’s ruling regarding his parenting time (which the court decreased) after the teenage child’s step-mother (his most recent wife) and the child experienced a physical altercation which resulted in his not seeing the child for about a year. The Court of Appeals holds “the district court’s jurisdiction over parenting time and custody ended when the child reached the age of majority,” which occurred while the appeal was pending. “Because the district court lost jurisdiction to enter any child custody and parenting time orders once the child reached the age of majority, any question concerning the propriety of its parenting time order became moot.” “Because the child has reached the age of majority, she now has the right to choose her own residence and how often she sees [her father].”
JURISDICTION TO MODIFY CHILD SUPPORT—May Extend Beyond Age of Majority. Marriage of Lewis and Bush, Docket No. 124, 454, ___ Kan. App. 2d ____, ___P.3d.____ (June 10, 2022-Johnson-Judge Rokusek—Affirmed in part and dismissed in part). There in no linkage of parenting time and child support. Just because a parent is paying child support does not mean that such parent is entitled to parenting time. K.S.A. 23-3001(b). Even though a child support obligation may extend beyond the age of majority and into the child’s 19th year of life because she was held back in school, there is no provision extending the district court’s jurisdiction over parenting time, even if a parent’s child support obligation is extended. K.S.A. 23-3001(b)(3).]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=465752023-10-18T05:05:58Z2021-11-05T19:12:01ZKirk v. Kirk, 24 Kan. App. 2d 31, Syl. 1, 941 P.2d 385 (1997), it is an abuse of discretion for the district court to find the separation agreement is just and equitable. “The parties’ mere agreement and assertion that the separation agreement was fair, just and equitable, even with the assistance of counsel, was not enough in the absence of testimony from the parties, domestic relations affidavits, or the listing of values of the property to be divided in the separation agreement itself.” In The Matter of the Marriage of Lee v. Lee, decided November 5, 2021 by the Kansas Court of Appeals, Docket No. 123,508, the Court of Appeals, inter alia, remanded the case to the district court “so the district court may be presented with sufficient evidence to determine the fairness of the separation agreement.”]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=464702023-10-18T05:06:07Z2021-08-09T03:15:24ZOn Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=464582023-08-16T03:23:44Z2021-08-01T09:03:39ZCHILD SUPPORT-Modification-Underemployment. Marriage of Rees (n/k/a Denning) v. Rees, Docket No. 123,206, 2021 WL _______ (July, 2021-Ellis-Affirmed). Father changed jobs, moving to a different town and working for a lower wage. Mother alleged the district court relied on outdated KCSG in finding father was not deliberately unemployed, thus abusing its discretion. “Kansas district courts have continuing jurisdiction to modify child support orders when there is a material change in circumstances. § V.A…. Voluntary termination from employment will not ordinarily constitute a material change of circumstances that justifies a reduction in child support. The court may consider the circumstances surrounding termination from employment § V.B.5….What is a material change in circumstances is fact specific. In re Marriage of Case, 19 Kan. App. 2d at 890.” “A material change in circumstances is a precondition that must be met by a party seeking adjustment of their child support obligation. “ The trier of fact must be convinced the termination was for rational and sufficient reasons. Under the 2020 guidelines, the child support receiving parent need not prove under-or un-employment is for the purpose of avoiding child support…thus lessening the burden on the receiving parent…such that they must prove the deliberateness, but not the ostensible purpose, of underemployment. In the instant case, the district court believed father’s termination from his employment, although voluntary, was for good and sufficient reasons (namely that his parenting time with his child in Hays was terminated, so he had no reason to stay, and wanted to be near his family in Emporia). Father testified, and mother did not contradict, that father worked 40 hour weeks and was pursuing the best job opportunity for him in the area. Thus, the district court was affirmed on appeal in reducing father’s child support obligation.
CUSTODY—Considerations—Children’s Wishes—In Camera Interviews. In the Matter of the Marriage of Biernacki, Docket No. 122,594, 2021 WL ________ (June 11, 2021-Finney-Affirmed). The best interests of the child control custody and parenting time. K.S.A. 23-3201; Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). The party seeking a change has the district court burden of persuasion. Simmons v. Simmons, 223 Kan. 639 (1978); In re Marriage of Fireowed, Docket No. 120,893, 2019 WL 5474302, at*2 (Kan. App. 2019). The district court must act in its sound judicial discretion. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P. 3d 413 (2002). Abuse of discretion is the standard on appeal. The district court has exceptionally broad authority. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P. 3d 515 (2018). The district court must consider all relevant factors. K.S.A. 23-3208(a), which is now the parenting time check list many courts follow. The district court did not change custody at the request of the mother. Although the child told the court in chambers he wanted to live mostly with his mother (the moving party) the district court discounted that desire. Under K.S.A. 23-3203(a)(3) the court may consider the “desires of a child of sufficient age and maturity”, “but a child’s views alone are not determinative and have diminishing import when the child is chronologically or emotionally immature.” In its discretion, a court may choose not to interview children…especially if they are of tender years.]]>On Behalf of Law Offices of Reed Walker, PAhttps://www.reed-walker.com/?p=464542023-10-18T05:06:13Z2021-07-30T14:27:59ZEffective November 4, 2021, the use of Form 14, which is the Missouri equivalent of the Kansas Child Support Worksheet, will be mandatory. A parent paying child support in a case in which modification of child support is sought may use a credit for children for whom the paying parent is responsible for supporting (Line 2 (c) ) unless that will result in child support less than the amount of the original child support order. Also, in cases where no overnight custody or visitation is ordered for a child older than 18, overnight credit may nonetheless be allowed, according to comments to use of the Form, “when circumstances would support an adjustment for periods of overnight time spent with the [parent paying support.” Line 11.]]>