forth various criteria to be used in that determination, those criteria are necessarily vague

Transcription

1 I. THE LAW OF CHILD CUSTODY A. Significant Child Custody Statutes All matters regarding children are determined by the best interest of the child. These matters include custody, visitation and child support. Although the statutes set forth various criteria to be used in that determination, those criteria are necessarily vague and are left open to other factors the consideration of which may be important for the court to decide any particular case. 1. K.S.A (a). The primary statute dealing with matters relating to custody of children in Kansas is K.S.A (a). Although this statute is included in the divorce code, its provisions are generally applicable to any action regarding the custody or visitation of a child. The statute recognizes four different kinds of custodial arrangements which may be ordered: three in which custody is to be determined between the parents of the child and one where custody may be granted to a person not a parent. Listed in order of preference those types of custody are: (a) joint; (b) sole; (c) divided; and (d) nonparental custody. a. Joint Custody. Joint custody is the preferred type of custody to be granted by a court. K.S.A (a)(4)(A). If the court does not order joint custody, the court must state in the record the specific findings of fact upon which it relied in determining that some arrangement other than joint custody be ordered. The designation of custody as joint does not have any impact on who the child lives with or how often the child sees or visits the other parent. It is simply a method used by the legislature and the courts to determine the legal right of a party to participate in basic decisions regarding matters involving the child involving issues of health, education and welfare. When parents are designated as joint custodians, they both have equal rights and responsibilities in decision making regarding the child and neither has a

2 superior right to impose his or her wishes on the other. Under the joint custody order, the parents are expected to discuss and attempt to come to agreement on what would be in the best interest of their child regarding the particular matter at issue. If the court determines that the parties have joint custody, the court must make a further determination regarding the child s living arrangements, or residency. Under K.S.A (a) where joint custody has been ordered, the court may decide that residency should be divided between the parents in an equal manner or that the child should live primarily with one parent, with the other parent having visitation with the child as may be determined. The designation of one parent as the primary custodian does not lessen the other parents right to involvement in decision making regarding the child nor does it define the amount or type of contact the non-primary custodial parent has with the child. It is simply a designation. The fact that a primary custodian is designated as such means only that the child generally spends more time with that parent than with the other. The court may require the parties submit a plan or agreement on how the parents intend on implementing their joint custody arrangement. The statute does not require any particular format for such a plan and does not require that the plan be specific or detailed. The intent behind having a plan is simply to provide the parties and the child a framework within which to work for the best interest of the child and to attempt to avoid disputes and arguments relating to the parties agreements relating to their sharing of custody. b. Sole Custody. If the court makes specific findings of fact that it would not be in the best interests of the child for the parents to have joint custody, the court may award one of the parties sole custody designating one parent as the custodial parent and the other as the non-custodial parent. K.S.A (a)(4)(B).

3 If the court awards sole custody to one parent, that parent has the primary right to decide matters regarding the child, including matters not only of day to day significance, but also general matters of health, education and welfare. The courts in Kansas will typically order sole custody only in one of three situations: (i) There is agreement between the parties that one parent should be designated as the sole custodial parent and there are good and sufficient reasons for their decision; (ii) There has been abuse of the child by the parent who is sought to be designated as the non-custodial parent ; and (iii) There is such an extremely high level of disagreement between the parents regarding the basic needs of the child that one of the parents needs to be designated as the sole custodian in order to promote the best interests of the child. It should be noted that even in highly conflicted cases, the courts are reluctant to order sole custody because of its frequent use by the custodial parent to shut the other parent out of the decision making process and to marginalize the non-custodial parent in the life of the child. If one parent is granted sole custody of the child, the custody is still subject to such visitation rights of the non-custodial parent as the court determines are appropriate. c. Divided Custody. If the court makes specific findings of fact that an exceptional case exists, the court may order that the custody of two or more children be divided between the parties. K.S.A (a)(4)(C). In such a situation the court

4 may award either joint custody of the children to both parties or may direct that each parent have sole custody of the child or children residing with that party. Divided custody is rarely granted in absence of agreement between the parties and, even if the parties agree to such an arrangement, most judges critically review that agreement. The most common kind of divided custody is an arrangement in which female children reside with their mother and male children reside with their father. Where divided custody is granted by the court, the court is required to determine the type and amount of visitation each parent is to have with the child not in residence with him or her. d. Nonparent Custody. In certain exceptional circumstances, a court may award the custody of children of a marriage to a non-parent. K.S.A (a)(4)(D). These situations may include grandparents, uncles, aunts, stepparents, persons living-in or who have lived-in with the child at some prior time, or other persons who assert some claim to custody of the child. A court may grant custody to a non-parent if the court makes specific findings of fact after hearing evidence that one of three extreme situations exist: statute as: (i) the child is a child in need of care. A child in need of care is defined by a person less than 18 years of age who either (1) is without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child s parents; or (2) is without the care or control necessary for the child s mental or emotional health; or (3) has been physically, mentally, emotionally abused or neglected or sexually abused. K.S.A Supp (a)(1-3). (ii) neither parent is fit to have custody of the child; or (iii) for a significant amount of time prior to the presentation of the matter to the court the child has lived with either a grandparent, aunt, uncle, or other relative of the child, or any other person if the court finds it would be in the best interests of the child to make such a custody order.

5 In making any such custody order, the statute directs the court to make the decision based on the best interest of the child with preference to be given first to a blood relative and then to any other person with whom the child has a close emotional tie. Any award of custody under this provision can be made only on a temporary basis. The award of custody to a non-parent does not operate to terminate or otherwise effect a parents parental rights and does not give the court any authority to consent to an adoption of the child. Any award of temporary non-parent custody under the third basis must be reviewed by the court on an annual basis to evaluate whether that order continues to be in the best interests of the subject child. If the court later decides on review that such non-parent custody is no longer in the best interests of the child, the Court must make other provision for custody by awarding either joint, sole or divided custody under the other provisions of the statute. Whenever the court orders custody to a non-relative, the statute provides that a copy of the transcript of the hearing and any order granting non-relative custody should be referred to the appropriate district attorney for commencement of proceedings under the Kansas Child in Need of Care statutes. It should be noted that the award of custody to a third party over the objection of a parent has significant constitutional impact since K.S.A (a)(4)(D)(iii) does not require any finding that a parent is unfit. For many years Kansas appellate courts have required that a parent be found unfit before a nonparent could be granted custody of that parent s child without the parent s consent. in order to be deprived of the custody of a child in favor of a third party. See In re Guardianship of Williams, 254 Kan. 814, 820, 860 P.2d 291 (1994). In a previous case dealing with an almost identical provision of K.S.A (a)(4)(D), the Kansas Supreme Court decided that provision to be unconstitutional. Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1988) (earlier

6 version of same statute provided that third-party custody could be awarded without finding of parental unfitness). e. Factors to Be Considered in Custody Determinations. The Kansas statutes present a number of factors to be considered by the court in deciding the custody and visitation arrangement that should be ordered. The statutory factors to be considered by the court in determining issues of custody and visitation are stated in K.S.A (a)(3): (i) the length of time the child has been under the actual care and control of any person other than a parent and the circumstances relating to that situation; In all determinations relating to children, one of the courts highest priorities is providing stability for children of a broken relationship. The longer a child has been in the care of one party, the more likely it is that parent will be designated as the caretaker of the child. (ii) the desires of the child s parents as to custody or residency; If there is an agreement between the parties regarding custody, residency and visitation of their child, the court is to presume that agreement is in the best interest of the children. This presumption may be overcome and the court may make any different order it believes would be in the best interest of the child if it makes specific findings of fact on how and why part or all of the agreement is not in the best interests of the child. K.S.A (a)(3)(A). Otherwise, the court is to consider the positions of the parents on their own belief what would best serve the interests of the child since the parents are the ones who have the greatest contact and interest in their own child s welfare. (iii) the desires of the child as to the child s custody and residency; Although a child s preference is to be taken into consideration, whether to accept that preference is up to the court in an overall determination of what is in the best interest

7 of the child. Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263 (1968). Most judges will not interview children in the course of a custody matter because they do not want to involve the children in choosing between parents. (iv) the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child s best interests; The courts consider the closeness of the relationship between parent and child, but also the relationship of the child with others with whom the child has regular contact. This may include friends, neighbors, relatives, romantic interests of the parties and any one else who may have an effect or input to the child s surroundings. (v) the child s adjustment to the child s home, school, and community; As previously noted, stability is a key ingredient to any determination of custody, residency and visitation. The courts are reluctant to upset a stable situation in favor of an uncertain future, unless there are equally countervailing considerations. (vi) the 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 the other parent; If one parent is hostile or uncooperative with the other parent, the court takes that fact into consideration. The courts have found that it is better to grant custody and residency to a parent who will promote a relationship with the other parent, rather than someone who will constantly encourage arguments and a lack of respect for the other parent. (vii) evidence of spousal abuse. Evidence of spousal abuse may indicate a high likelihood of the potential for abuse of a child. Even if abuse of the child is not likely, the courts are very wary of exposing children to an atmosphere in which violence is either allowed or condoned.

8 2. K.S.A (d). Parents have a constitutional right to custody of their children. This is true whether two people are married or not at the birth of the child. In order to determine and enforce custody, residency and visitation rights, however, some kind of action must be filed in court. Kansas statutes provide for the determination of parentage where there is not a marital relationship and, within those statutes, grant the courts the power to decide issues of custody, residency and visitation. K.S.A (d) is the statute that deals with the grant of that power by the legislature where there is no marriage. That statute, however, provides simply that: If both parents are parties to the action, the court shall enter such orders regarding custody and visitation as the court considers to be in the best interests of the child. Because the parentage statutes do not provide the listing of factors to be considered by the courts in making custody determinations, the courts have borrowed the factors listed in K.S.A (a). 3. K.S.A A parent who is not granted custody of or residence with a child is entitled to receive such visitation as the court deems appropriate. Visitation and parental access is to be determined on the individual facts of each case based on the best interests of the child. 4. K.S.A et seq. A custody decree rendered in another state that had jurisdiction under the Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act is entitled to enforcement in the same way and manner as if it were issued by a Kansas state court. 5. K.S.A If a parent expects to change the residence of his or her child from Kansas to another state, or if that parent plans on removing the child from the state for any period of time in excess of 90 days, the statutes require that parent to give the other parent written notification of that fact. The parent is required to send the notice

9 of intent to remove the child from the state or change the residence of the child by certified mail, return receipt requested by restricted delivery to be signed for by the other parent. The notice is to be sent to the other parent at that parent s last known address. If a parent proposes to remove the child from the state for a period in excess of 90 days or to change the residence of the child from Kansas, the statute provides this fact constitutes a material change in circumstances which justifies the courts revisiting a custody, residency and visitation arrangement to decide if that arrangement needs to be changed, modified or completely overhauled. In doing so, the court is bound by the best interests of the child as set out in other statues and case law. If the parent proposing to change the residence of the child from the state or who intends to take the child out of the state for more than 90 days fails to follow the notice provisions, that parent is in indirect civil contempt of court punishable by law. The parent can be punished in any way provided by the civil contempt statutes and can also be found liable for the reasonable attorneys fees and costs of the other parent occasioned by the failure to give notice. * * * * * *

10 B. Uniform Child Custody Jurisdiction Act. When a client first comes in to the office with either a question about initial custody or visitation, or a question about modification of an existing child custody or visitation order, enforcement of an existing child custody or visitation order, or an inquiry about whether there may be a right of visitation by a third party, the attorney first needs to determine the where jurisdiction of the child lies. Child custody jurisdiction can be one of the simplest, or one of the most difficult areas of child custody and visitation litigation. When no prior order or decree exists there is an initial question of what is the proper jurisdiction in which to initiate a child custody action and who are the parties that must be included in any such child custody matter or who must be given notice of any such action. It is not enough that either the child or the child and one parent presently be in the state in order to file a child custody action. Similarly, in today s mobile society, more and more people are moving from one location to another within a state, from one state to another and from one country to another. In order to have the power to decide child custody and visitation matters, a court must have jurisdiction. There are two basic kinds of jurisdiction personal and subject matter. Personal jurisdiction relates to the power of the court over a particular person. Subject matter jurisdiction deals with the power of the court to make valid and binding orders in a particular kind of case. Prior to 1966, each state had its own rules governing when and under what circumstances a court of that state could determine matters of child custody. Child custody jurisdiction was based on either (1) physical presence of the child in the state, (2) domicile or residence of the child in the state, or (3) personal jurisdiction over the parties claiming the right to custody of the child. Kansas courts relied on domicile or residence

11 of the child in the state to determine if the state should properly consider child custody matters. Wear v. Wear, 130 Kan. 205, 285 P.2d 606 (1930). In 1966, the Uniform Laws Commission, an group organized on a national basis to assist state governments and draft laws of general application to states in areas in which uniform statutes are needed, approved the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA was recommended for passage to the states by the Uniform Laws Commission as a way to avoid jurisdictional competition and conflict between the states in mattes of child custody, to promote cooperation among the states to the end that a custody decree is rendered by that state which has the closest connection with the child and can best decide the interest of that child, and to make uniform the law of the various states regarding child custody jurisdiction. The UCCJA was enacted in Kansas in By 1983, the UCCJA had been adopted, with minor variations, in every state and some territories of the United States. The UCCJA sets forth rules to apply in determining what state has jurisdiction over child custody matters and, if parties have filed actions in more than one state to determine custody, the UCCJA provides a method by which it can be determined which state should have priority. In order to be able to issue a custody decree which will be considered valid in any other state, jurisdiction must be founded on one of the grounds provided by the UCCJA. The Kansas UCCJA is found at K.S.A , et seq. The four grounds on which a state may claim jurisdiction under the UCCJA are stated in K.S.A (UCCJA Section 3). Those grounds are: 1. Home State jurisdiction. 2. Significant connection jurisdiction. 3. Emergency jurisdiction.

12 4. Default jurisdiction. The UCCJA grounds for jurisdiction are stated in order of preference. Thus, a state that has home state jurisdiction has preference over a state that is not the home state but would otherwise have significant connection jurisdiction. Similarly, a state that has Significant connection jurisdiction would have jurisdictional preference a state that could claim only emergency jurisdiction. 1. Home State Jurisdiction The Kansas UCCJA provides that a state is the home state of a child if the child has lived in that state for at least six consecutive months prior to the initiation of a proceeding pertaining to custody of that child. K.S.A (e). Because most domestic relations cases in which children are involved deal with situations in which both parents live in the same state and have lived in that state for a significant period of time, the vast majority of all cases dealing with child custody jurisdiction are filed under the home state jurisdiction provision of the UCCJA (a)(1)(A) Example 1: John and Jane Doe have one child, Mary, who is six years old. John and Mary have been married to each other for 8 years and have lived in Kansas that entire time. Mary was born in Kansas and has always lived with her parents in the same house in Kansas. John files for divorce from Mary. Child custody jurisdiction is determined by the home state of Mary. The child has lived for more than 6 months in the state of Kansas preceding the filing of the divorce action. Thus, the home state for jurisdiction purposes is Kansas and Kansas has proper home state jurisdiction to decide matters relating to the custody and visitation of Mary. Under the Kansas UCCJA (and under the UCCJA as enacted in every other state), home state jurisdiction continues even if the child is not in the state at the time the child custody matter is filed. Physical presence is not a requirement for jurisdiction under the home state provisions of the UCCJA. K.S.A (b). Further, the UCCJA provides that home state jurisdiction continues for six months after a child leaves the state if (1) one parent remains in the home state after removal of the child, (2) the child

13 is absent from the state because of the child s removal [from the home state ] or retention [away from the home state ] by a person claiming custody of the child, and (3) an action for custody of the child is instituted in the home state within 6 months from the date on which the child was removed from the home state. K.S.A (a)(1)(B). Example 2: Same as Example 1, except that John and Jane agree to a trial separation without the filing of any court action. John moves out of Kansas and establishes a new home in Missouri with the child in his physical custody. Jane remains in Kansas at all times. So long as Mary files a petition in which she requests a determination of child custody in Kansas less than 6 months after John moves from the state, Kansas has home state jurisdiction because, although the child is not physically present in Kansas, the child lived in Kansas for more than 6 months and has not been absent from the state with a person claiming custody of that child for more than 6 months. Example 3: Same as Example 2, except that John files for divorce in Missouri in which he requests the court decide issues of custody and visitation. Kansas has home state jurisdiction because, although the child is not physically present in Kansas, the child lived in Kansas for more than 6 months and has not been absent from the state with a person claiming custody of that child for more than 6 months. Missouri courts cannot decide matters of child custody or visitation because Kansas is the home state. Example 4: Same as Example 2, except that John lives with the child in Missouri for 6 months, 1 day before Jane files a petition for divorce in Kansas courts. Because the child has lived in the state of Missouri with a person claiming that child s custody for more than 6 months, Missouri is now the home state and Kansas is no longer the home state of the child. Missouri has home state jurisdiction and is the appropriate place to decide matters of child custody and jurisdiction under the UCCJA. The UCCJA also covers that situation in which a custody action is filed involving custody of a child less than 6 months of age. The UCCJA provides that, for home state jurisdiction purposes, the infant s home state is that state in which the child has lived from date of birth with a parent or person claiming custody. K.S.A (a)(1). Example 5: John and Jane Doe have moved frequently during their 3 year marriage. The Does have never lived in any state more than 5 months during their short marriage. Jane gives birth to Mary and when Mary is 4 months old, Mary files for divorce in Kansas. Kansas has home state

14 jurisdiction because the child is younger than six months and has lived from birth to the date of filing of the request for custody determination within the state. However, if the infant is moved from one state to another before the child is 6 months old, there are inconsistent rulings...some courts say there is no home state. Other courts say that the first state in which the child lived for any significant time is the home state, and continues to be the home state for 6 months after the child is removed. 2. Significant Connection Jurisdiction. If there is no state in which the child has lived for 6 months or longer with 6 months of the initiation of an action dealing with child custody, there is no home state and it then must be determined what state has appropriate jurisdiction. Significant connection jurisdiction was specifically drafted by the Uniform Laws Commission to address that situation in which the child has moved from the home state (or a home state has never been established) and the other parent has also moved away from the home state. In the absence of a home state, the UCCJA provides that a court in which a child custody action is instituted has significant connection jurisdiction if (1) there is no home state, and (2) it is in the best interests of the child that the state assume jurisdiction over child custody matters because (a) the child and one or both of the child s parents or other persons claiming custody rights have a significant connection with the state, AND (b) there is substantial evidence available in the state regarding the child s present or future care, protection, training and personal relationships. K.S.A (a)(2). Example 6: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have

15 never lived in any state more than 5 months. John and Mary have lived together with Mary in Kansas for 3 months when Mary files for divorce. Kansas has appropriate child custody jurisdiction because there is no home state and both parents and the child live in Kansas at the time an initial pleading requesting determination of custody is filed. If two or more states have comparable claims to significant connection jurisdiction, the UCCJA provides that the custody proceeding be held in that state in which a pleading making claim for custody of the child was first filed. The UCCJA directs that a court not exercise its jurisdiction if, at the time of the filing of a petition for custody determination, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with [the UCCJA]. K.S.A (a). Example 7: John and Jane Doe have one child, Mary, who is six years old. Both John and Jane have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. Jane moves away from the Kansas residence, establishes her own home in Colorado and then files for divorce. By agreement, Mary, the parties child, has remained in the physical custody of John. The parties have never before lived in Colorado together and Jane has no family in Colorado. John files for Divorce in Kansas. Kansas has appropriate child custody jurisdiction because there is no home state, the child and one parent has a significant connection with the state of Kansas (i.e. John lives in Kansas), and there is substantial evidence available in the state regarding the child s present or future care, protection, training and personal relationships (because John lives in the state). Significant connection jurisdiction seeks to designate as the appropriate place for child custody determinations that state which has the maximum contact or connections with the child. Because the UCCJA provision requires maximum, rather than minimum, contacts, if more than one state may have significant connection jurisdiction, the UCCJA includes provisions by which the courts of those various states can communicate and a determination can be made which of two or more competing

16 jurisdictions is the appropriate place for the child custody matters to be tried and determined. Thus, K.S.A (c) provides that if a court obtains information that a custody action is pending in another jurisdiction, the court should stay any further child custody proceedings in order to communicate with the other court to the end that the judges of the various courts may determine which jurisdiction is the more appropriate. Example 8: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. Mary moves away from the Kansas residence, establishes her own home in Colorado. Mary files a petition for divorce in Colorado 1 day before John files a petition for divorce in Kansas (not knowing that Mary filed for divorce in Colorado). Under the scenario, once the parties discover that two actions have been filed, they both have a duty and responsibility to inform the court in which the actions are filed that an action is pending in the other state s courts. The judges of those courts should then contact each other to ascertain the appropriateness of jurisdiction in each court. Because neither the parties nor the child have an connection to Colorado other than that Mary has recently established her residence in that state and because the more substantial evidence would exist in the state of Kansas (since the parties both last lived together in Kansas). Colorado should refuse to consider those portions of Mary s petition requesting establishment of custody and visitation orders. Kansas has appropriate child custody jurisdiction because there is no home state, the child and one parent has a significant connection with the state of Kansas (i.e. John lives in Kansas), and there is substantial evidence available in the state regarding the child s present or future care, protection, training and personal relationships. Example 9: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. Jane moves back to the state in which she and John lived immediately prior to their move to Kansas (Missouri). John and Jane had lived for 5 months in Missouri and had lived in Kansas 1 month prior to Jane s move back to Missouri. Jane files for Divorce in Missouri. Missouri has appropriate child custody jurisdiction because there is no home state, the child and at least one parent has a significant connection with the state of Kansas (all parties previously lived in the state and Jane presently lives in Missouri), there is (presumably) substantial evidence available in the state regarding the child s present or future care, protection, training and personal relationships (because Jane lives in the state) and no child custody proceeding is pending in any other state.

17 Example 10: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. Jane moves back to the state in which she and John lived immediately prior to their move to Kansas (Missouri). John and Jane had lived for 5 months in Missouri and had lived in Kansas 1 month prior to Jane s move back to Missouri. John files for divorce in Kansas and Jane does not file in Missouri. Kansas has appropriate child custody jurisdiction because there is no home state, the child and one parent has a significant connection with the state of Kansas (i.e. John lives in Kansas), there is substantial evidence available in the state regarding the child s present or future care, protection, training and personal relationships (because John lives in the state), and no child custody proceeding is pending in any other state. Example 11: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. Jane moves back to the state in which she and John lived immediately prior to their move to Kansas (Missouri). John and Jane had lived for 5 months in Missouri and had lived in Kansas 1 month prior to Jane s move back to Missouri. John and Jane file for divorce within 1 day of each other not knowing the other has filed. Both states have jurisdiction. As soon as the parties learn of the other party s filing, they are required to inform the court and the courts should communicate each other to determine which court has more substantial evidence than the other relating to the child s present or future care, protection, training and personal relationships. In making this determination, the parties should present to the courts as much information as they can obtain regarding school attendance and activities, church and social activities of the child, family and other relationships the child has in each state, and any other matter which may assist the courts in determining which state has a better claim of right to determine matters of custody. As part of a court s determination of significant connection jurisdiction, the court should determine whether it is an inconvenient forum to make a child custody determination under the specific facts of the case before it and that another state is a more appropriate and convenient forum. K.S.A (a). This order must be made before the court makes its decree. K.S.A (a). A suggestion that a court is an inconvenient forum may be made on the court s own motion, on motion of any party to

18 the case, or on motion of a guardian ad litem for the child or any other representative of the child. K.S.A (b). In making a decision whether it is an inconvenient forum, the court must consider if it would be in the best interest of the child whose custody is to be determined that another state assume jurisdiction. In making that determination, the court is to consider the following factors: (a) whether another state is now or recently was the child s home state; (b) whether another state has a closer connection with the child and the child s family or with the child and one or more of the contestants before the court; (c) whether substantial evidence concerning the child s current or future care, protection, training and personal relationships is more readily available in another state; (d) whether the parties have agreed on another forum which is no less appropriate; (e) whether the exercise of child custody jurisdiction by a court of this state would contravene any purpose of the UCCJA (uniformity, avoidance of jurisdictional competition and inter-jurisdictional conflict, promotion of cooperation between state courts from different states, avoidance of relitigation of child custody matters). K.S.A (c). If a party has wrongfully removed a child from one state to another or has engaged in similar reprehensible conduct a court may decline to exercise its jurisdiction if such declination is just and proper under the circumstances. K.S.A Example 12: John and Jane Doe have one child, Mary, who is six years old. During the five years since the birth of Mary, the Does have never lived in any state more than 6 months. John and Jane have lived together with Mary in Kansas for 3 months when Jane disappears with Mary to an unknown location. Five months later, Jane files for divorce in New Jersey, the state to which Jane s parents have recently moved. New Jersey

19 may dismiss the child custody matter although it would otherwise be an appropriate state to have child custody jurisdiction because of the wrongful removal or improper conduct of Jane in obtaining contact with the state. 3. Emergency Jurisdiction A state may exercise emergency child custody jurisdiction if the child is present in the state seeking to make the child custody order and EITHER (a) the child has been abandoned, OR (b) it is necessary in an emergency to protect the child because the child has been subjected to, or threatened with, mistreatment or abuse or the child is a child in need of care within the meaning of the Child in Need of Care statutes. K.S.A (a)(3). If a court determines it has child custody jurisdiction under the emergency jurisdiction provisions of the UCCJA, the court may only issue temporary orders valid until a court with child custody jurisdiction under one of the other basis specified in the UCCJA has an opportunity to hear the matter. Orders issued under a court s emergency jurisdiction power become final and binding only if no other action is later filed in a court having either home state jurisdiction or significant connection jurisdiction. Example 13: John and Jane Doe have one child, Mary, who is six years old. On a weekend trip to John s parents house in Nebraska, John s parents become aware that John and Jane have abused Mary. The Nebraska courts may assume emergency child custody jurisdiction and issue orders protecting the child from further abuse and awarding temporary custody to the grandparents until a court with appropriate child custody jurisdiction assumes jurisdiction. 4. Default Jurisdiction If it appears that no other state would have child custody jurisdiction under any of the criteria for either home state jurisdiction, significant connection jurisdiction, or emergency jurisdiction, or another state has declined to exercise child custody jurisdiction on the ground that the default jurisdiction state is the more appropriate

20 forum for determination of child custody matters, a state may assume child custody jurisdiction if it is in the best interests of the child for that court to assume jurisdiction. K.S.A (a)(4). This is essentially a catch all provision to make it clear that some state will have jurisdiction even if all seemingly appropriate courts have declined or denied jurisdiction. Example 14: John and Jane Doe have one child, Mary, who is six years old. Both John and Mary have jobs which require that they move frequently. During the six years since the birth of Mary, the Does have never lived in any state more than 5 months. They lived in Missouri for 5 months prior to moving to Kansas. Four months after moving to Kansas, Jane moves back to Missouri with Mary. Jane files a divorce in Missouri, but the Missouri Court determines that Kansas would be the more appropriate place to determine child custody issues. Kansas courts may assume jurisdiction whether or not there is a significant connection of the child with Kansas because the more appropriate state (Missouri) has declined to accept child custody jurisdiction. 5. Procedural Requirements Under The Uniform Child Custody Jurisdiction Act. In furtherance of the attempt of the UCCJA to avoid jurisdictional disputes, every party is required by the UCCJA to state in that party s first pleading, or in an affidavit attached to that first pleading, the following information: (1) The child s present address; (2) The places at which the child has lived within 5 years prior to the filing of the pleading; (3) The names and present addresses of the persons with whom the child has lived within the 5 years prior to the filing of the pleading; (4) Whether the party has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in any jurisdiction;

21 (5) Whether the party has information that any custody proceeding is pending concerning the child in any jurisdiction; (6) Whether the party knows of any person not a party to the proceedings who has physical custody of the child or who claims to have physical custody of the child or a right of visitation with the child. If the answer to any of the questions is yes, then that party has an additional obligation to give such additional information as is necessary to fully inform the court regarding that matter, together with any additional information the court may require. Each party has a continuing duty to inform the court of any custody proceeding in any other court or in any other state which information is obtained after the filing of the initial pleading. K.S.A (c). Any party who submits information knowing that information to be false, upon conviction, shall be deemed guilty of a class C misdemeanor. K.S.A (d). If the court is informed that some person in addition to those parties before it have or claim to have custody of the child or claim to have visitation rights with the child, whether by information provided by a party or by independent information, the Court shall order that person be joined as an additional party to the custody proceeding and shall further direct that person receive notification of the pendency of the child custody proceeding and of the joinder of that person as an additional party to the custody proceeding. K.S.A So that the court in which any child custody proceeding is pending may have all information sufficient for it to determine those matters, the court has the power under the UCCJA to order any party to the proceeding who is physically present in the state to appear personally before the court and, if that party has physical custody of the child who is the subject of the custody proceeding, to order that party to appear personally with the

22 child. K.S.A (a). If any such party is physically outside the state with or without the child, the court may order that notice of the proceeding be given to that party with a direction that the party appear personally before the court with or without the child and declaring that failure to appear as ordered may result in a determination adverse to that party. K.S.A (b). If a party is outside the state and the court requires that party s appearance personally before the court, either with or without the child, the court may require the party requesting the order to pay for travel and other necessary expenses of the party being ordered to appear. K.S.A (c). * * * * * * *

23 C. Parental Kidnapping Prevention Act. The federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. 1738A, was enacted by Congress in 1980 in an attempt to establish national standards under which prior determinations of child custody jurisdiction would be accepted. The Act was enacted under the United States Constitutional provision providing that Congress may determine those instances on which one state must give full faith and credit to the statutes, rules and court decisions of a sister state. Technically, the PKPA does not include any provision preventing kidnapping, but simply provides a framework within which states and their courts are to operate in enforcing and recognizing child custody determinations already made for a particular child. As such, the PKPA does not, by its terms, govern the rules under which a state determines child custody jurisdiction on an initial filing of a child custody action the PKPA provides those circumstances under which an existing custody order must be enforced or may be modified. However, though the PKPA does not deal with the circumstances under which a state can enter an initial child custody order, since the statute determines those orders that are entitled to full faith and credit by other states, it in essence determines and affects those initial determinations. For example, one state need not recognize as a valid custody determination a custody order which does not comply with the requirements for jurisdiction found in the PKPA and can issue its own determination on child custody. 1. The PKPA Gives Preference to the Home State. The jurisdictional provisions of the PKPA reflect the provisions of the UCCJA. The PKPA, however, provides a clear hierarchy among the various basis for child custody jurisdiction, which was not completely clear under the UCCJA at the time the PKPA was enacted. Prior to passage of the PKPA, some states determined that the

24 jurisdictional grounds stated by the UCCJA were stated in no particular order and that the state in which a custody action was filed was free to modify or vary a previously existing order if the jurisdiction fit into one of the acceptable categories of the UCCJA, whether as an initial action or as an attempt to modify an existing custody decree (even though the Reporter for the UCCJA had stated that the jurisdictional grounds were stated in order of importance and in order of preference). If a result under the UCCJA conflicts with the PKPA, or appears to conflict with the PKPA, the provisions of the PKPA prevail. Any determination under the UCCJA must be read in light of the requirements of the PKPA. Thus, because the PKPA indicates that a state having home state jurisdiction is the state which can issue a valid child custody order, a child custody decision of a state using significant contact jurisdiction can only be accorded full faith and credit if there is no home state. Therefore, the home state must determine the child custody issue even if it determines (consistent with provisions of the UCCJA) that it should decline jurisdiction (under either forum non conveniens [K.S.A ] or conduct of parties [K.S.A ]). The PKPA does not include any provision by which a home state may decline jurisdiction in favor of a state with lesser jurisdiction. Thus, a state with significant connection jurisdiction cannot exercise jurisdiction if there is a home state; and a home state jurisdiction must accept jurisdiction even if there is another state that may have significant connection jurisdiction even if that other state is already exercising its jurisdiction. The main purpose of the PKPA, however, is to assure that specific rules exist under which the various state courts operate in determining whether or not an existing child custody order can be modified or must be enforced as it stands without any modification. A state cannot modify a pre-existing child custody order unless the state

25 which made that order no longer has jurisdiction under the PKPA. If such a modification is made, that subsequent order is invalid and will not be enforced by other states courts. Example 1: John and Jane Doe have one child, Mary.. John and Jane were divorced in Oklahoma in At the time the Petition for Divorce was filed, Jane and Mary lived in Oklahoma and had lived in Oklahoma for 5 months, having left the marital home in Kansas in which John, Jane and Mary had lived for 5 years. Mary was 6 years old when the divorce was filed. The Divorce was entered by default against John who failed to respond after he was served with the petition. After the divorce is entered, Jane allows Mary to visit John in Kansas. During the visitation period, John files a motion with the Kansas courts requesting a modification of the Oklahoma custody order. Jane opposes the motion alleging that she still resides in Oklahoma and that Kansas cannot modify that pre-existing order. Kansas can disregard the Oklahoma order. The Oklahoma order was not valid when issued. At the time the petition for divorce was filed a home state existed Kansas and only Kansas could issue a valid and binding custody decree. 2. Continuing Jurisdiction by Court Issuing Initial Child Custody Order. Under the PKPA if a custody order exists which was granted by a court having proper initial jurisdiction, any court in which a subsequent action is filed to modify or enforce that decree must determine first the nature of its own jurisdiction regarding the custody order. The PKPA provides that if the court which issued the existing custody order still has jurisdiction under the provisions of the PKPA and its own version of the UCCJA, the modifying court cannot modify or change any custody provision but must enforce the provisions of that existing order as entered. The PKPA provides that if an existing child custody order was issued by a state having exclusive jurisdiction under the UCCJA and the PKPA that state continues to have exclusive jurisdiction to modify that order so long as (a) that state has jurisdiction under its own version of the UCCJA, AND (b) that state remains the residence of the child or of any person claiming the custody of the child in the existing action. This is

26 termed continuing jurisdiction. If a state has such continuing jurisdiction no other state can make a valid and enforceable order modifying any portion of the existing order. Any order made by a court which purports to modify an existing child custody order when another court continues to valid continuing jurisdiction is void and will not be enforced by any other court of the United States. The only power any other court has in such a situation is the power to enforce the existing order. Example 2: John and Jane Doe have one child, Mary. John and Jane were divorced in Kansas in Kansas had home state jurisdiction when the decree was issued. Since their divorce, Jane has moved to Missouri. John continues to live in Kansas with Mary. Jane files a Petition in Missouri courts seeking to modify the Kansas decree. The Missouri court must dismiss the Petition because Kansas has continuing jurisdiction since the child and one parent continue to live in the state which validly issued the initial child custody decree. Example 3: John and Jane Doe have one child, Mary. John and Jane were divorced in Kansas in Kansas had home state jurisdiction when the decree was issued. Since their divorce, Jane has moved to Missouri with Mary. John continues to live in Kansas. Jane files a Petition in Missouri courts seeking to modify the Kansas decree alleging that she and the child are residents of Missouri. The Missouri court must dismiss the Petition because Kansas has continuing jurisdiction since one party to the original action continues to live in the state which validly issued the initial child custody decree. 3. Modification Jurisdiction by Another Court. A court other than the court which granted the initial child custody order has the power to modify the initial child custody order if the court that issued the original order has lost is jurisdiction or has declined to exercise its continuing jurisdiction and the court which seeks to modify the initial order has jurisdiction under its own version of the UCCJA and the provisions of the PKPA. Thus, if both parents and the child move from the state which entered the initial child custody order, any state which would have appropriate jurisdiction under the UCCJA and the PKPA may modify the order. When both parties have moved out of the