Will my kids have to go to court?

Most people’s main concern when they come to our office for a divorce consult is what will happen with the children and how the divorce process will affect the children. We hope to make the process easier for you, but also make the transition easier on the children. When it comes to children, we not only worry about custody, but whether they will have to be in the courtroom, or even testify.

The best interest of the child is the standard used for determining custody of minor children, but it is also used as a sort of determiner for whether the child should testify. The first issue when determining if a child will likely need to testify is how old the child is. Courts are hesitant to allow young children, even as old as 13-14, to testify. The idea behind this hesitation is that children shouldn’t be needlessly put through the court process and that a child should never have the burden of determining which parent they will live with long term. That is a burden that the courts put on the parents and, if the parents can’t decide, that the court will take on themselves. As such, if you have a child under the age of 13, it is fairly unlikely that they will need to, or even be allowed to, testify.

Often, if the child is not of a sufficient age to testify, we will ask that the children do not come to court with you. The courtroom is not a place for children, unless they have to be there. Sometimes though, in more intense custody cases, the Court will Order the child to be present, in the event the court wishes to interview the child. This situation is one that can cause stress to the child and the parent, however, our goal in these cases is to make it so that the child doesn’t have to testify and is able to wait in a waiting room, outside of the actual courtroom. If the child does have to testify, it is typical for the judge to call the child into their chambers and have a sit down conversation with usually just the judge and his court clerk.

Divorces don’t only occur with young children, however. If your child is high school aged, then they may be able to testify. Kansas law sets the choice of a child, of sufficient age, as one of the many factors in determining the best interest of the child. If your child is of sufficient age and wishes to testify, you should inform your attorney of that in your initial consult as the attorney will want to have a discussion with the child. It is important to remember though, the child’s choice is one of many factors, so the court has the authority to disregard a child’s choice if they feel staying with the other parent is in the child’s best interest.

Divorces, of course, are not easy on children. However, the State of Kansas, and we at Seaton, Seaton, and Dierks, L.L.P., have taken purposeful steps to help make the process and transition easier on the children, and less stressful on you. If you have concerns regarding your specific child testifying or being present in the courtroom, please don’t hesitate to ask your attorney about it.

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Trey Bryant

Associate

Trey Bryant, Associate

Trey recently joined our team and is licensed to practice law in the State of Colorado.  Trey graduated from Kansas State University in 2014 with a Bachelor of Science in Political Science, a Bachelor of Science in Legal Communication and a minor in Women's Studies. Trey earned his Juris Doctor from the University of South Carolina School of Law in 2017. Trey intends to focus his practice on Appeals,Civil Litigation, Family Law, Landlord-tenant Law and Contracts. 

How does property get divided in a divorce?

Property division is one of several aspects of filing for divorce, along with child custody, child support and spousal maintenance.

When one spouse files for divorce in the State of Kansas, all property owned by either spouse becomes marital property, whether it was acquired before or during the marriage. This includes separately titled property, inherited property and gifted property.

However, if the parties entered into a valid premarital contract prior to marrying, those assets listed in the premarital agreement remain separate property and are not subject to division. Once marital property has been identified, the court then determines the extent of each spouse’s interest in the marital property.

To make a just and reasonable property division, the district court weighs several statutory factors, such as: the age of the parties; the duration of the marriage; the present and future earning capabilities of the parties; the time, source and manner of acquisition of the property; family ties and obligations; the allowance of maintenance; dissipation of assets; tax consequences and any other factors necessary to make an equitable division. It is important to note that equitable does not always mean equal.

Parties on their own can agree how to divide the property, too. The parties’ agreement as to the division of debts and assets is listed in a proposed settlement agreement for the court to consider and/or adopt as an Order of the court.

K.S.A. §23-2801 and K.S.A. §23-2802

 

What do I need to know about parenting time and child custody?

If you’re filing for divorce, here’s what you need to know about parenting time and child custody for your minor child.

In the State of Kansas, all judges will apply the standard of “best interest of the child” in every decision he or she makes regarding your child.

At the time of filing the divorce, parents may obtain a temporary order controlling the rules of custody for your pending case. Those orders may be entered by the filing party without the knowledge of the responding party, called “temporary ex parte orders,” or they may be entered once the responding party is served and has had an opportunity to respond, called “temporary orders.” In the event temporary ex parte orders are entered, the judge will not have the authority to change what is called “de facto custody.” This simply means the judge cannot take primary physical custody from one parent and give it to the other without that parent being involved in the court proceeding.

In the State of Kansas, there are two types of custody, legal and residential. Legal custody is setting out which parents will have decision-making rights over the child’s health, safety and welfare. Typically, legal custody is set as joint. This gives both parents decision-making rights over the child.

Residential custody is setting out where the child will primarily reside and how much parenting time the other parent will exercise with the child. A standard parenting plan involves one parent having primary residential custody and the other parent exercising every other weekend and alternating holidays.

It is important to remember that the judge will always apply the best interest standard when making a decision or approving the parent’s decision regarding the end result of custody. If parents reach an agreement, the presumption will be that the agreement is in the child’s best interest, but the judge must make that specific finding and approve the parent’s agreement.