Archive for January, 2013

The Informal Factors That Influence Kansas Child Custody Disputes

Monday, January 28th, 2013

Because Tom McDowell has been practicing law for over two decades and has represented hundreds upon hundreds of family law clients, he has seen virtually every request imaginable when it comes to child custody, timeshare and visitation disputes.  One of the biggest obstacles to resolving a divorce or paternity dispute involves unrealistic expectations by either parent.  All family law judges in Kansas must adhere to the “best interest of the child standard” when making orders about where minor children will reside and the allocation of responsibility for decision-making about children regarding medical care, schooling, religious upbringing and similar issues.

While there is a long list of factors that a judge considers, the reality is that there are a number of “informal factors” that often guide a family law judge’s child custody and parenting time orders.  The best way to obtain a favorable decision from a judge in a child custody dispute in Kansas is to take reasonable positions based on realistic expectations.  We have provided some realistic positions that you should expect most Kansas family law judges to consider in paternity and divorce cases.

Absentee Parent vs. Stay at Home Parent: There was a time when many courts followed the “tender years doctrine.”  This theory basically postulated that young children needed to live with their mother.  While this principle has long been abandoned, we still frequently hear from fathers who believe Kansas courts still favor mothers.  To the contrary, Kansas law expressly forbids such a presumption in favor of the mother.  However, a court will often favor the stability of maintaining the status quo where one parent has been a stay at home parent and the child has thrived in that environment.  By contrast, a parent who insists on being the primary residential parent in such a situation is facing an uphill battle especially when that parent works long hours or must travel away from home for extended periods for employment.  Many households still consist of a traditional family structure where the father works outside the home and the wife is a stay at home mom, which is why some fathers have a sense that the bias toward the mother still exists in Kansas child custody disputes.

Parenting Time vs. Daycare Time: A Kansas family law judge will almost always favor placing minor children with a parent rather than a babysitter or daycare provider.  This is true even if the babysitter is a step-parent, grandparent or other adult with whom the minor children have a close bond.  When a parent advocates for parenting time when the parent will be forced to relegate the child to the care of a third party, this request will be viewed skeptically by the court if the other parent is available to care for the children.  This type of request is usually regarded more as a proposal to manipulate timeshare for child support calculation purposes than a real interest in parenting time.

Benefits of the Status Quo: When a relationship or marriage breaks down, it can be difficult to continue living under the same roof.  If you leave the family home, however, you may be at a disadvantage in a subsequent child custody dispute.  Divorce is a difficult experience for children because so many fundamental things are changing in their lives so family law judges will look to preserve a positive status quo where possible to ease the transition.  The parent who remains behind in the family residence may benefit from this preference for maintaining the status quo.  The other parent also may decide not to cooperate in providing access to your children.  If this goes on for some time before you file for divorce as well as custody and parenting orders, you may create the perception that an existing positive status quo already exists with the other parent.

School as Objective Criteria of Parenting: When the children reside primarily with one parent, the child’s school performance may be very important.  Much of the evidence offered in custody disputes is subjective and self-serving.  Academic performance provides an objective measure of how your children are doing that is not easily subject to manipulation by either parent.  This means that positive academic performance will tend to benefit a parent with whom the children reside the majority of the time while poor performance may suggest that the status quo is not working.

Wichita, KS family law attorney Thomas C. McDowell is committed to being part of the solution and not part of the problem when families seek to resolve complex divorce or paternity issues related to their children.  Mr. McDowell has been practicing law for over two decades and uses this experience to guide his clients past the difficult emotions that can derail constructive negotiations on child custody, parenting time and visitation issues.  When a negotiated solution is not realistic, Mr. McDowell is prepared to zealously pursue the best resolution for his clients and their children.  So please call us today at 316-633-4322 or submit an online case evaluation form.

 

 

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The Benefits of an Amicable Cooperative Approach to Child Custody & Parenting Time Issues in Kansas

Monday, January 14th, 2013

If you are a parent and facing a marital dissolution, the well-being of your children is likely to be your most critical concern.  When parents are able to work together in a constructive fashion to reach an amicable agreement about child custody and parenting time, the result is usually less stress and anxiety for both the parents and their minor children, as well as more stable parenting time arrangements.  Kansas family law judges understand that the more positive parents are toward the relationship between their children and the other parent the lower the risk of adverse impact to children from divorce process.  This principle is so deeply rooted in child custody and parenting time determinations that it is one of the official factors in the best interest of the child standard under Kansas law.

When a parents approach a child custody and parent timesharing dispute in the context of a divorce or paternity action from the perspective of placing their children’s needs and well-being above their own, significant benefits result both for the parent and the minor children.  While many timesharing arrangements still involve a primary residential parent, Kansas courts like those in other states are increasingly favoring arrangements where both parents are involved in the child close to an equal amount of time.  This trend is based on the notion that it is in the best interest of minor children to have frequent and continuing contact with both parents assuming there is an absence of evidence regarding the fitness of either parent.

Given this bias toward extensive contact and interaction with both parents, a family law judge tends to view a parent more favorably that seems inclined to encourage the child to spend time with the other parent.  Conversely, evidence of either parent engaging in alienation of the child in the form of derogatory comments, non-cooperation during parenting time exchanges and similar acts may play a critical role in a family law judge’s parenting time determination.  One of the best interest of the child factors that a judge is directed to consider is as follows: “[T]he willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and other parent.” K.S.A. 60—1610(a)(3)(B)(vi).

While there are certainly behaviors and issues involving the other parent that may make amicable negotiation of parenting time and child custody arrangements complicated, such as substance abuse, domestic violence, past neglect or abuse and similar parental fitness issues, a cooperative approach increases the chance that a mutually beneficial agreement can be reached.  In situations where the parents are unable to reach an agreement, the judge will closely scrutinize the degree to which each parent has encouraged a positive relationship between the children and the other parent.

This type of approach in divorce and paternity actions provides the dual benefit of reducing the stress and anxiety of parents and children while also mitigating the litigation costs associated with child custody and parenting time disputes.  Amicably negotiated resolutions will also increase the stability of existing orders so that there is less chance that parents will continually need to return to court for modification or enforcement proceedings once a judgment has been reached.

Wichita, KS family law attorney Thomas C. McDowell is committed to being part of the solution and not part of the problem when families seek to resolve complex divorce or paternity issues related to their children.  Mr. McDowell has been practicing law for over two decades and uses this experience to guide his clients past the difficult emotions that can derail constructive negotiations on child custody, parenting time and visitation issues.  When a negotiated solution is not realistic, Mr. McDowell is prepared to zealously pursue the best resolution for his clients and their children.  So please call us today at 316-633-4322 or submit an online case evaluation form.

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