A parenting time
order that conditions a non-custodial
father's visits with his 16-year-old
son upon the son's desire to see him
is improper, the Kansas Court of Appeals
held Sept. 16. Addressing the issue
for the first time, the court stressed
that a child's desire to see or not
see a parent is simply one component
in the parenting time calculus (Bouley
(Kimbrell) v. Kimbrell, Kan. Ct. App.,
No. 93450, 9/16/05).
The child's parents
agreed to joint custody and shared
parenting time when they divorced
in 1996. Thereafter, the father charged
that the mother was alienating their
16-year-old son from him and he requested
residential custody. After psychological
testing and evaluation suggested that
in fact the father himself may have
alienated the son due to his own psychiatric
problems, the trial court ordered
that the son's time with the father
"should be as is mutually requested."
Due Process
Considering the father's appeal, Judge
Henry W. Green first addressed his
argument that the trial court's decision
resulted in a denial of due process
by infringing upon his parental rights
without any showing that he was an
unfit parent or presented any threat
or danger to his child. While acknowledging
that a parent's right of custody and
control over a child is a liberty
interest protected by the 14th Amendment's
due process clause, Green said it
was unclear whether parents have a
specific due process right under the
Federal Constitution regarding parenting
time and visitation. He noted, however,
that Kansas law makes clear that parents
have such a right absent exceptional
circumstances, such as a threat to
the child's welfare (see Kan. Stat.
Ann. Supp. 60-1616).
Green determined
that the clear intent of K.S.A. 60-1616
was to create a rebuttable presumption
that a parent is entitled to reasonable
parenting time and visitation. Without
a finding of exceptional circumstances
(serious endangerment to the child's
physical, mental, moral or emotional
health), he said, a trial court must
enter an order for reasonable parenting
time. He ruled that because no such
finding was made in this case, the
father was entitled to reasonable
parenting time with the son. Going
on to determine that the father was
in fact awarded such time, Green turned
to the question of whether the trial
court's order conditioning visitation
on the child's desires unjustly impinged
on that award.
Not Exclusive
Unable to find any Kansas cases addressing
whether a trial court may condition
parenting time on the child's requests
or desires, Green examined cases from
Missouri, New York, and North Carolina.
Determining that the cases indicate
that parenting time and visitation
orders should not be conditioned on
a child's desire to see the noncustodial
parent, he found them to be persuasive.
Saying that the order
in this case must comply with K.S.A.
60-1616(a), Green decided it was improper
because it lacked a finding that the
father's exercise of parenting time
would endanger the child. Green stressed,
however, that his holding does not
preclude a trial court from considering
a child's desires, but that they are
simply only one factor to be considered,
and not the exclusive factor.
Judge Michael B.
Buser dissented. He would affirm the
trial court's order, arguing that
it was not arbitrary, fanciful, or
unreasonable under the facts
Brant M. Laue and
Chadler E. Colgan, of Armstrong Teasdale,
Kansas City, Mo., appeared for the
father. Sherri E. Loveland, of Stevens
& Brand, Lawrence, Kan., appeared
for the mother. |
