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Child Custody in Kansas: Common Questions

May 11th, 2009

 From the Kansas Bar Association website, below is the 10 most common questions asked Kansas lawyers about child custody, child support, and visitation:

1. CHILD CUSTODY
   What types of custody orders can a judge make?
   Joint custody is preferred and implies that both parents will share in making major decisions concerning the child’s upbringing. The usual arrangement is for the child to reside primarily with one parent (residential custody) and to spend time with the other parent on some weekends and overnights, extended summer visits and holidays. Joint custody does not pertain to the physical residence of the children. Shared physical custody, occurs when the child lives with both parents in equally or nearly equal blocks of time. Because shared physical custody requires parents to be extremely cooperative and is easiest when the parents live in close proximity to each other, many judges are reluctant to order it, but will frequently approve agreed shared physical custody.Sole custody means that one parent makes all the major decisions regarding the child’s upbringing and the child lives with that parent. The other parent may have specified visitation rights. Sole custody occurs when one parent is not involved, i.e., prison, or suffers from mental incapacity.

1. Divided custody means that one child lives with one parent and another child with the other. Each party has visitation with the child in the custody of the other. It is used in exceptional cases.

   Non-parental custody can be granted temporarily if the court believes the parents are unfit or that the child is in need of care and an action will be filed pursuant to the Kansas Code for the Care of Children. Grandparent placement is non-parental custody.

   What factors does a judge look at in awarding a parent residential custody of a child?

   The trial judge has broad discretion to award custody according to the child’s best interests. The Kansas statute lists the following factors, among others: the child’s adjustment to home, school and community; the wishes of the parents and the child; which parent will most cooperate in helping the child maintain a relationship with the other parent; and evidence of spousal abuse. Neither the mother nor the father is preferred because of sex. Each case is reviewed on its own facts according to child’s best interests. If the child is a teenager, the judge may be willing to consider the child’s wishes as to residence and the child’s reasons. There is no specific age when a child gets to decide where they live, but generally, the older the child, the more weight that child’s desires are given by the court.

   Can the parties agree as to the custody arrangement for their child?
   Yes, the parties may agree on the type of custody that fits their circumstances and present their agreement to the judge for approval. Kansas law provides a presumption that a written agreement between the parties concerning custody or residency of their minor child is in the child’s best interest. In many counties, mediation, a process later discussed hereing, is utilized by the court to facilitate custody agreements.

   After a Court determines which parent should have the primary residence of a child, can the court ever change that?
   Yes. The Court retains jurisdiction (keeps the power) to change the primary residence of a child until the child attains the age of majority (18) or graduates from high school, whichever occurs first. In some instances, the court’s authority is extended to the child’s 19th birthday, or high school graduation. Generally, if the parties remain in the same state, a motion to change primary custody must be filed in the same court where the divorce or paternity was determined.

   What reasons would a court need to change the child’s primary residence?
   The law usually requires a material change of circumstances’ before a judge will modify a custody order. Usually the change of circumstances will be something in the residential parent’s home that has an adverse impact on the child, such as physical abuse, use of illegal drugs, alcohol abuse or neglect. Seldom will the mere improvement of conditions of the nonresidential parent be sufficient, absent other facts, for a Court to remove a child from a stable situation. Occasionally, the desires of a teenage child can serve as a change of circumstances.

   1. VISITATION OR ACCESS RIGHTS
      If I do not have primary residential custody, what access will i have with my child?
      Visitation, often called “access” is the right of the parent who does not have residential custody to spend time with the child. The Court may order “reasonable” visitation, leaving it to the parties to work out the details, or the judge may order specific times for access to the child. “reasonable” visitation entitles a parent to see the child at reasonable times under reasonable conditions, after adequate notice.What happens if the parties cannot work out an agreeable schedule or do not follow a schedule ordered by the Court?
      If a divorce or paternity case is still pending, then the parent can ask for a temporary order or for modification of an existing temporary order. If the order is “final”, the party must file a motion for specific visitation or to enforce existing rights. The Court may find a party in contempt of court for refusing to comply or can modify the existing order.

   Mediation
   In situations where visitation is an issue, the court can order the parties into mediation which is a process by which a neutral person tries to help the parties reach an agreement outside the court. The mediator is a communication facilitator, and has no authority to enter orders or provide recommendations to the court. Mediation is a confidential process in that statements made in mediation may not be used in court. Such confidentiality is designed to promote open communication between the parents to assist in reaching parental agreements.

   Can a judge ever prohibit access by a parent?
   A judge may restrict, or even prohibit, access if there is evidence that visitation would be extremely harmful to the child, as in instances of child abuse. Sometimes a Court will order that any visitation be supervised by a third party, such as a social worker, relative or court officer. A parent who is prohibited from seeing a child may, at a later time, petition the Court for visitation if conditions improve. A Court may, in extremely rare situations, condition visitation on payment of child support.

   Are there any guidelines for visitation?
   Parental responsibilities continue to exist whether the parents live together or not. For children to grow up emotionally healthy requires love, understanding and sound guidance from both parents. Children need the opportunity to love and respect both parents.

   Courts often give parents the following guidelines:
   The residential parent should have the child ready at the mutually agreed time.
   The residential parent should encourage and make the child feel good about going to visit the other parent.
   The nonresidential parent should pick up and return the child on time unless there is an emergency or the parent has called ahead.
   The nonresidential parent should notify the other parent as soon as possible if unable to keep visitation.
   The nonresidential parent should make the time spent with the child as pleasant as possible by not questioning the child regarding the former spouse’s activities, or making promises that cannot be kept, not discussing the faults of the other parent, or by making extravagant gifts.
   Parents should not argue with each other in front of the child.
   The nonresidential parent should not visit the child after drinking or taking illegal drugs.
   The parent should not visit the child at unreasonable hours or take them to unsafe places.

   Can a judge order visitation rights for anyone other than a parent?
   Kansas statutes provide that following a divorce, grandparents and step-parents may be granted visitation rights if it is in the best interest of the child. In addition, Kansas law allows grandparents to petition for visitation if they have established a substantial relationship with the child or if their child has died and their grandchild has been adopted by a step-parent. The judge has the discretion to make a visitation order. However, natural grandparents do not have a right to visitation when their grandchildren are adopted by third parties, or when the grandparents’ child has had his or her parental rights severed.

   1. CHILD SUPPORT
      How does the judge decide how much child support must be paid?
      In determining the amount to be paid for child support, Kansas law requires a Court to consider all relevant factors, including the financial resources and needs of both parents, the financial resources and needs of the child, and the physical and emotional condition of the child.The Kansas Supreme Court has adopted child support guidelines which must be used as the basis for establishing and reviewing all child support orders. The guidelines are based upon a premise that both parties have a shared duty to support their children based upon their contribution to the combined family income. A proportion of each parent’s income is allocated to the child. Child support continues until the child is 18. If the child attains 18 and is attending high-school, child support continues until June 30 of the school year during which the child becomes 18. Child support and educational expenses may also be extended beyond 18 years if the parents sign a written agreement approved by the Court. If the parties cooperate in holding the child back in school so that the child is 18, but still attending high-school, the Court may extend the child support for an additional school year, subject to conditions.

   Where should I pay child support?
   In most cases, a parent is required to pay child support either to the Clerk of the District Court or the District Court Trustee because it is easier to enforce the support order. In rare instances, the judge may allow a parent to make direct payments to the residential parent. Unless the judge approves direct payments in advance, a parent will not receive credit for payments made to anyone other than the Clerk of the District Court or Court Trustee, which can result in a request to pay support twice.

   Can a child support order be changed if my income changes?
   Yes. A child support order may be changed for future payments, but not for past due payments, if there has been a change of circumstances. If a parent’s income increases or decreases so that the amount owed would be 10 percent less, there is a change of circumstances. A change of circumstances occurs when a child reaches age 7 and 16. The parent should contact an attorney right away to see if the support order should be lowered, because orders can only be modified for the future.

   If I feel that my child is entitled to more support than is currently ordered, what should I do?
   The parent should either contact an attorney or the local Court Trustee, the Department of Social and Rehabilitation Services or Child Support Enforcement Unit as soon as possible to see about the possibility of obtaining an increase in the support obligation.

   Who is the District Court Trustee?
   Some counties have a court trustee who is appointed by the judges to collect child support. A parent who pays support to the court trustee must also keep the trustee informed of current addresses and place of employment.

   What should I do if I can not pay all of my child support?
   A parent who is unable to pay child support in full should pay as much as possible and then contact the court trustee or child support enforcement unit (CSEU) to make arrangements for the balance. The court trustee of CSEU may accept a partial payment. If there are other problems, the parent may want to see an attorney right away. For example, if the reason for inability to pay is loss of a job, the parent may want to file a motion to modify the support obligation as soon as possible.

   What happens if I do not pay my child support?
   After July 1, 1993, child support is automatically withheld from most parent’s wages. If income is not being withheld, it can be ordered when a parent defaults. In addition to income withholding, the law authorized garnishment of bank accounts, imposition of liens on personal property, interception of tax refunds, and other remedies. A person can also be held in contempt.

   Can I be sent to jail if I do not pay my child support?
   Yes. In addition to the enforcement procedures, there are possible criminal penalties. A parent’s failure, neglect or refusal to pay for the support of a child without lawful excuse is a felony. If convicted, a parent could be imprisoned. Failure to obey a court order to pay child support may result in civil punishment such as a fine, or imprisonment for contempt until the offender tells the court that the child support order will be obeyed.

   Does the parent who receives the child support (the parent with whom the child lives) have to spend that money on the child?
   Yes, but it may be spent indirectly. The money does not have to be spent only on things which go directly to the child, such as clothes or toys. Part of the money will help pay for rent or house payments, utilities, school fees, food, and transportation.

   A parent who believes that the child support is being improperly spent should not stop paying support, but should contact an attorney. If the attorney decides there is sufficient evidence, a motion can be filed to ask a judge to review and correct the situation.

   If I am denied my visitation rights, can I refuse to pay my child support?
   No. Child support and visitation are considered by statute in Kansas to be two entirely separate matters. A parent cannot withhold child support to enforce visitation rights nor can a parent deny visitation to enforce child support. If a parent is being denied visitation, the parent can file a motion with the court, even without a lawyer, to enforce visitation. If visitation is being wrongfully denied, the judge can correct the situation.

 You can contact Paul’s office at 785.273.1353 or complete the contact us form or visit his website for more legal information.

 

 

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Personal Injury- Shawnee County

March 17th, 2009


Injury Cases

When you have been injured by someone else’s carelessness, it is important to take some initial steps toward making sure your injury claim can be settled fairly and as quickly as possible:

• Write down everything you can remember about how the injury occurred, including the names, addresses and phone numbers of potential witnesses, police officers, insurance company representatives (or company or workers’ compensation representatives if it was a work injury)
• Talk to a Topeka personal injury lawyer before making any statements, written or verbal, to insurance company adjusters or representatives
• Let anyone you think may be responsible for the injury know right away that you are intending to file a claim against them
• Take steps to protect any evidence you may need to prove your injury, such as your totaled car, photographs of an accident or injury scene, clothing you were wearing, damaged personal belongings, and so forth

How Do I Figure Out Who Is At Fault?

In most cases, in order to collect on an injury claim in Kansas, you must prove the person who caused the injury was “negligent” – which is a failure to use reasonable care. In Kansas, you must prove:

• The existence of a duty owed to you by the person who caused your injury
• The other person failed to carry out that duty
• You suffered damages
• The other person’s failure caused you to have the injury

If you were careless, and your carelessness contributed to your injury, the amount you can recover will be reduced in proportion to your carelessness, under Kansas comparative negligence law. Kansas follows a modified comparative fault rule, which provides that if you were 50% or more at fault, you cannot recover. If you were 49% or less at fault, you may recover, though your recovery will be reduced by your decree of fault.

In Kansas, if more than one person is negligent toward you, each person who has been found negligent to you is responsible for a proportional amount of the total damages.

If you have been injured using a consumer product, the seller of the product may be responsible under a “strict liability” legal theory. Under Kansas law, you would need to prove that:

• The product was defective, which made it unreasonably dangerous
• You used the product the way it was supposed to be used
• The defect caused your injury
• You suffered damages

What Is My Claim Worth?

Under Kansas law, the person who injured you is responsible for:

• Past, current and future estimated medical expenses
• Time lost from work, including time spent going to medical appointments or therapy
• Any property that was damaged, such as your vehicle
• The cost of hiring someone to do household chores when you could not do them
• Any permanent disfigurement or disability
• Your emotional distress, including anxiety, depression, and any interference with your family relationships
• A change in your future earning ability due to the injury
• Any other costs that were a direct result of your injury

A lawyer will know what type of expert witness to hire to best prove your damages.

How Long Do I Have To File A Legal Claim?

In Kansas, you only have two years to file a lawsuit against the person who injured you. If your lawyer has not been able to come to an agreement with any involved insurance companies, you will definitely want to file a lawsuit before the two-year statute of limitations runs out.

You can contact Paul Post at  785.273.1353  or  complete form  for a free consultation.

 

 

 

 

 

 

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Will & Estate Basics

March 17th, 2009

Will & Estate Basics



Will & Estate Basics

You’ve heard that if you do nothing else to take care of your legal affairs, you should write a will, and it’s pretty good advice. If you don’t make a will before your death, state law will determine who gets your property and a judge may decide who will raise your children (and either or both may not be whom you would have chosen). Writing such an important document can be daunting, but it doesn’t need to be.

If all you need is a basic will, you can confidently use a good self-help book or software to make a legally binding will that:

leaves your property to the people and organizations you choose
names a guardian to care for your minor children if you can’t
names someone to manage property you leave to minor children (yours or someone else’s), and
names your executor, the person with authority to make sure that the terms of your will are carried out.

When a Basic Will Is Enough

By and large, if you are under age 50 and don’t expect to leave assets valuable enough to be subject to estate taxes, you can probably get by with only a basic will. But as you grow older and acquire more property, you may want to engage in more sophisticated planning.

You can contact Paul Post at  785.273.1353 or  complete form for a free consultation.

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Child Custody

March 15th, 2009



Child Custody

Child custody: an overview

In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.

The parent with custody controls decisions pertaining to the child’s education, religious upbringing, and health care. Courts have the option of choosing one of several types of custody. Temporary custody grants custody of the child to an individual during the divorce or separation proceeding. Exclusive custody endows one parent with all custody rights to the exclusion of the other parent. The non-custodial parent may receive supervision rights or in certain cases, supervised visitation rights. Joint custody grants the parents equal rights in making decisions regarding the child’s upbringing. Courts award joint custody for cases in which both parents can properly perform their duties as parents. If one parent sues for exclusive custody, the suing parent must rebut a presumption that joint custody is in the child’s best interests. A court can award the custody of a child to a third-party if the third-party has sought custody. The third-party is often a grandparent or other close relative. If a marriage results in multiple children, a court has the authority to separate the children and split the custody between parents in accord with the best interest of each particular child. Ordinarily, however, the best interests of a child will be to live with that child’s siblings, in part for reasons of emotional support.

When determining the home in which to place the child, the court strives to reach a decision in “the best interests of the child.” A decision in “the best interests of the child” requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals.

Visitation Rights

When a court awards exclusive child custody to one parent, the non-custodial parent maintains the right to see and visit the child, absent extraordinary circumstances. If the court’s custody decree fails to mention visitation rights, the law implies the parent’s right to visitation. Thus, an express prohibition on visitation must exist within the decree in order to deny parental visitation rights because visitation rights stem from the fact of parenthood. Even though this strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by noncustodial parents.

If a party convinces the court that visitation rights would be injurious to the child’s best interests, then the court possesses the authority to deny visitation rights. This best interest of the child analysis, however, does not give dispositive weight to the child’s stated desires because parents inherently possess the right to attempt to repair the parent-child relationship. Cases in which courts deny visitation rights often include noncustodial parents who had physically or emotionally abused the child in the past and noncustodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.

If a parent refuses to obey the court’s visitation or custody decree, the court can order the parent in indirect comptempt of court.

Like other aspects of family law, the states control most law in the field of child custody.

You can contact Paul at 785.273.1353 or use website contact form for a free consultation.

 

 

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Kansas Grounds for Divorce

March 15th, 2009

Kansas Grounds for Divorce



Grounds for a Divorce

 

The Petition for Divorce is the initial document filed with the Kansas court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The district court shall grant a decree of divorce for any of the following grounds:

No-Fault Based Grounds:
(1) Incompatibility;

Fault Based Grounds:
(1) failure to perform a material marital duty or obligation; or (2) Mental illness or mental incapacity.

Incompatibility by reason of mental illness or mental incapacity shall require on of the following: (1) Confinement of the spouse in an institution by reason of mental illness for a period of 2 years, which confinement need not be continuous; or (2) an adjudication of mental illness or mental incapacity of the spouse by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness. (Kansas Statutes – Chapter 60 – Article 16 – Subject: 1601)

You can contact Paul at 785.273.1353 or use website contact form for a free consultation.

http://www.paulpost.com/services/famlaw.html

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Adoption in Kansas

March 15th, 2009



Adoption in Kansas

Adoption in Kansas

You`re interested in adoption, but you`re not sure where to start. In Kansas, you have several options for adoption available. The first thing you must decide is the type of adoption you are interested in. Do you want an infant or an older child? Do you want to adopt domestically or internationally? These decisions will determine where you start.

Who May Adopt In Kansas

The law in Kansas states that you must be at least 18 years old to be an adoptive parent, and does not have an upper age limit. This may vary depending on the type of adoption you decide to pursue. You must be able to clear a criminal background check, and have the financial means to support a child. If you are married, you and your spouse must both agree with the adoption.

Paul Post primarily restricts his practice from the family law area to the District Court of Shawnee County, Kansas, although on occasion, he does accept cases in nearby counties, including Jackson County, Jefferson County, Pottawatomie County, Wabaunsee County, and Osage County. You can reach Paul at 785.273.1353 or 1.800.347.1353.

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Family Law in Kansas

March 15th, 2009

Family Law

is a multi-faceted area of law that deals with family relations. Family law encompasses such areas as: adoption, child custody and visitation, children’s rights, child support, spousal support (alimony), separation agreements, civilian and military divorce (dissolution of marriage), marital property division (equitable division), elder law matters, estate planning, estates and trusts, wills and will contests, probate, insurance, cohabitation agreements, pre-marital (pre-nuptial) agreements, marriage and other legal issues pertinent to the family.

 


Kansas Family Law

Family law courts generally hear cases pertaining to dissolution of marriage, legal separation of the parties, nullity of marriage, child custody, child and spousal support, elder law legal issues, domestic violence petitions, and estate planning cases like wills, will contests, guardianship, insurance, probate, trusts and other estate related legal issues.

You can contact Paul at 785.273.1353 or use website contact form for a free consultation.

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Kansas Workers’ Compensation Law

February 21st, 2009



Workers' Compensation

What is workers compensation?

The Kansas Workers Compensation Act may be characterized as a type of “no fault” law. The law allows a worker who sustains an injury in the work place to obtain compensation from his employer regardless of whether the worker was in any way at fault in causing the accident. Compensation can include payment of lost wages resulting from a job-related injury, payment of medical bills and related expenses, an amount of money for any permanent impairment resulting from the job-related injury, and in certain cases, compensation for what is known as “work disability” if the injured worker has sustained a loss of ability to earn comparable wages as a result of the job-related injury. If you are injured on the job, it is important that you inform your employer or supervisor of the fact of your injury immediately. If you wait more than ten days, it is possible that your claim will be completely lost due to this delay. It is also important that you give the employer a written notice of your intent to pursue a workers compensation claim. This notice must either be given to the employer personally, or sent by certified mail, return receipt requested so that you will have proof that the notice has been given. You should also immediately consult an attorney to determine what your rights are under the Kansas Workers Compensation Act.

You can contact Paul at 785.273.1353 or use website contact form for a free consultation.

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