Areas of Practice
The obvious reason to enter into a premarital agreement is to protect the assets of one or both of the parties to a marriage. These agreements, as long as entered knowingly and voluntarily, will be enforced by the courts. If one side wants to void a premarital agreement, they must provide good reason to the court, which is not easy. The agreement would be voidable if entered under duress or as the result of fraud or undue influence or it was unconscionable when executed due to lack of full disclosure by one of the parties.
To assure your premarital agreement is valid, it is best to have both sides represented by counsel before entering into such an agreement. Both sides also need to be careful to disclose all assets or risk having the agreement thrown out due to fraud. This disclosure element is a broad disclosure and not a requirement of dollar for dollar accounting of every asset. Case law in Kansas makes it clear that the disclosure need not be exact or detailed.
Divorce cases are fact-driven. Your life and the facts that fill it are not the same as anyone else’s. Yet, the law in each state dictates the nature of the divorce process and requires all of us to confront the same issues. I will help you prepare in all ways for this difficult journey, eliminate as many surprises as possible, enable you to understand the process, identify the critical concepts, guide you through the difficult decisions, and generally make you an effective participant and contributor in your own divorce.
For a divorce to be finalized it must address all assets and debts of the parties. That is why it is a good place to start to track down all documentation of assets and debts as early as possible in the process. As a general rule, credit card debt will be presumed marital (meaning it gets divided between the parties 50/50 or as appropriate by incomes/pro rata). If a party is keeping a particular asset such as a vehicle or chair from Nebraska Furniture Mart, that party also pays the debt associated with that asset (ex. Ford Motor Company or Nebraska Furniture Mart).
Retirement and investment accounts acquired during the marriage are presumed to belong to the parties and usually get divided in half. The exception is if these assets were acquired before the marriage (premarital portion is subtracted out of the value before divided) or inherited by one of the parties during the marriage (that will usually be the inheriting party’s separate property unless it has merged with marital property.
When two people have a child without being married, the child’s father is unknown as far as the courts are concerned until some specific action is taken. Social services organizations (DCF in Kansas and DFS in Missouri) can initiate a case to get mother child support from the alleged or presumed father, but cannot set up a custody arrangement giving that father rights to see the child. If a man signs the birth of a child, that man is “presumed” to be the child’s father. An alleged father can request a paternity test (also called a DNA test) during any child support case from social services or a paternity case in circuit court.
Either parent has the right to file a paternity action on behalf of the minor child. In the paternity case, the judge will make a finding as to who is the father of the child. Any participant in such case make file an “Acknowledgement of Paternity” saying the man does not want to fight the case and believes that the child in question is his child. This case will also establish the appropriate amount of child support. That amount follows the same guidelines as would a social services case in using the state child support numbers after review of the parties’ incomes, childcare cost and health insurance cost.
The main thing a paternity case does that a child support action does not is decide what custody arrangement is best for the minor child involved. Many parents can decide the best parenting plan by what they have established and what has worked for their child in the past. If they cannot reach an agreement, they will be ordered to attend mediation to try to decide if a custody arrangement with a disinterested third party mediator. If that doesn’t work, the parties will go to trial on the matter and let a judge decide what is best for the child. The judge will look at all factors surrounding the child, relationship with parents, family, friends, schooling, age,
Another possibility in a paternity case is that the child with a mother’s last name may have it changed to the father’s last name. Again, the judge will determine what is best for the child if the father has requested this change. To do so, the judge will look at the child’s age, community ties, and other factors that may be positively or adversely affected by such change.
People often question the accuracy of a DNA testing in these cases. The science is now accurate up to 99.9% positive of a father-child match. The businesses that work with DNA testing will require a picture ID of the alleged father prior to taking DNA to assure that there was no switch in the DNA donor. It is possible for there to be more than one father tested for the same child but that only happens after one potential father has been eliminated or on daytime television.
In older children, Missouri law holds that it is always best for children to know their biological father regardless of what consequences it may have on the child. A DNA test may be ordered on a child at any age.
Under Kansas law, the judge will look to “best interest of the child” which includes review of the circumstances surrounding the child’s life, who he or she knows to be his or her father, familial attachments, and other factors to first determine if it would be in the child’s best interest to know that there is a different father than the one that had raised him or her. Only after a judge decides it would be best to know will a Kansas court authorize a DNA test for a potential father. This situation arises most often when the wife has an affair during the relationship and the husband, although presumed to be the father based upon the marital relationship, wants to be sure. If the child is an infant, the judge is much more likely to order a DNA test than if the child is 7 years old and the husband has raised the child as his own.
Child custody is determined by evaluating what is best for the child(ren). It is always best for a child(ren) if the parents can work together to reach an agreement as to a custody arrangement. If the parties cannot reach agreement about what is best for the child(ren), the judge will order them to attend mediation. It is very common for custody matters to be resolved in the mediation process where a disinterested third party meets with both parents to work toward resolution. If the parties cannot reach agreement in mediation, trial to the judge will be necessary. At trial, the judge will weigh many factors (see below K.S.A. 23-3203) including what has been the child’s schedule, how well is the child adjusted to the current situation, and which parent is most likely to encourage the child to have a relationship with the other parent. Kansas and Missouri both view a child’s relationship with both parents to be the child’s right and not the parents’ right. Therefore, it is frowned upon for one parent to deny the other access or try to interfere with the relationship the child has with the other parent. When this happens it can reach such an extreme that it is considered to be “alienation of affection”, and such behavior can cause a judge to change custody and remove a child form the alienating parent.
When deciding child custody, there must be a Parenting Plan entered. Since parents know their child(ren) best, the court will almost always adopt parenting plans that are agreed by the parties to be best for their child(ren). Both Kansas and Missouri presume that joint custody is best for children unless one of the parents is proven to be unfit (a very difficult standard to reach which needs abuse, neglect etc.). Parenting Plans must state which parent has the child(ren) the majority of the time, who will have the child(ren) on holidays (it is common to alternate them year after year),
whether there will be extended vacation time during school breaks, who will schedule doctor appointments, who will carry health insurance, who will pay for uncovered medical expenses (usually divided into percentages), how to pay for extracurricular activities (also usually done by income percentages), etc.
According to the State of Kansas, below are some determining factors during child custody battles:
|23-3203. In determining the issue of child custody, residency and parenting time, the court shall consider all relevant factors, including, but not limited to:
(a) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
(b) the desires of the child’s parents as to custody or residency;
(c) the desires of the child as to the child’s custody or residency;
(d) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
(e) the child’s adjustment to the child’s home, school and community;
(f) 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;
(g) evidence of spousal abuse;
(h) whether a parent is subject to the registration requirements of the Kansas offender registration act, K.S.A. 22-4901 et seq., and amendments thereto, or any similar act in any other state, or under military or federal law;
(i) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 2012 Supp. 21-5602, and amendments thereto;
(j) whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901 et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; and
(k) whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 2012 Supp. 21-5602, and amendments thereto.
Mediation is the best way for parents to resolve custody issues and I am happy to help parents work toward success. If parents cannot reach agreement in mediation, it is often left to a judge to decide the future custody arrangements of the child/children. While judges are certainly trained and qualified to come up with a parenting plan, they will never have the opportunity to meet your children and understand their daily needs. That is why parents who mediate focused on their child’s best interests tend to be more successful at co-parenting long term.
I am trained and certified by the Kansas Supreme Court as an attorney mediator, specifically focusing on domestic matters. I am able to work with parties to resolve matters of custody, child support, property division, relocations, post decree modifications and other matters which arise in families.
It is important for parents to understand that when they have a contentious relationship, the children are aware of this and negatively impacted by it. Children often feel that they cannot love both parents or they may be somehow “betraying” a parent. Mediation is a way for parents to minimize conflict and encourage a positive relationship between the children and both parents.
A mediator can help parents focus on their mutual goal of putting their child first. Some ways that a mediator can help parents to accomplish this goal include:
- Considering unique approaches to parenting time based on the children’s educational schedule and extracurricular activities
- Establishing concrete rules about maintaining mutual respect between parents that is disseminated to the children
- Having greater flexibility than what is seen in most visitation schedules in different jurisdictions
- Maintaining consistency in routine and expectations in multiple households
While family law disputes can be highly contentious, mediators can help parents achieve cooperative interaction that focuses on the best interests of the child.
Kansas and Missouri both have a formula for child support determination. It is based on the general idea that children are entitled to the same lifestyle they would have had in a two parent household. That means that the court looks at the income of the parties (yes, bonuses and commissions will be included if traditionally received), child support cost and health insurance cost for the child(ren). Any exceptional medical expenses or extracurricular expenses may also be considered by the court. As a general rule, sports and band and similar activities are considered to already be covered by child support. If a child is in competitive sports which are exceptionally expensive, the court will usually add that into the child support calculation. Child support ends in Kansas when a child turns 18 or graduations high school (whichever is later). In Missouri child support can continue until 21 if the child goes straight to college from high school and continuously provides documentation and grade cards to the supporting parent.
Children make mistakes. Certain counties will charge kids with crimes that others would overlook or let schools handle. While television may tell us otherwise, police can legally interrogate children over the age of 14 in Kansas. They are entitled to the same Miranda warnings as adults, but that often does not have the same impact as it would on an adult. Although the children often do not understand the consequences of their discussions, minors frequently admit to offenses they did not know were crimes.
The idea behind the juvenile justice system is to rehabilitate the children and assure they become productive adults. Incarceration is usually the last resort.
It is important that juveniles have good representation because their offenses may follow them the rest of their lives. For example, a minor with a conviction for marijuana possession may not be eligible for federal grants for college. In addition, juvenile offenses may be used to increase the sentence on adult convictions.
How do Miranda rights affect juveniles? After Miranda rights, how do juveniles get interrogated? According to the Kansas Legislature, children 14 and under cannot be charged with content shared during their interrogation. Make sure to get all the facts if your child likes to live on the edge.
Child in Need of Care
According to the Johnson County, Kansas website, below are frequent concerns raised about child(ren) in need of care.
What is a Child In Need of Care Or CINC?
A Child in Need of Care, otherwise known as a CINC, is defined as a person under 18 years of age who:
(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 other custodian;
(2) is without the care or control necessary for the child’s physical, mental or emotional health;
(3) has been physically, mentally or emotionally abused or neglected or sexually abused;
(4) has been placed for care or adoption in violation of law;
(5) has been abandoned or does not have a known living parent;
(6) is not attending school as required by K.S.A. 72-977 or 72-1111 and amendments thereto;
(7) except in the case of a violation of K.S.A. 21-4204a, 41-727, subsection (j) of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amendments thereto, or, except as provided in paragraph (12), does an act which, when committed by a person under 18 years of age, is prohibited by state law, city ordinance or county resolution but which is not prohibited when done by an adult;
(8) While less than 10 years of age, commits any act which if done by an adult would constitute the commission of a felony or misdemeanor as defined by K.S.A. 21-3105, and amendments thereto;
(9) is willfully and voluntarily absent from the child’s home without the consent of the child’s parent or other custodian;
(10) is willfully and voluntarily absent at least a second time from a court ordered or designated placement, or a placement pursuant to court order, if the absence is without the consent of the person with whom the child is placed or, if the child is placed in a facility, without the consent of the person in charge of such facility or such person’s designee;
(11) has been residing in the same residence with a sibling or another person under 18 years of age, who has been physically, mentally or emotionally abused or neglected, or sexually abused;
(12) while less than 10 years of age commits the offense defined in K.S.A. 21-4204a, and amendments thereto; or
(13) has had a permanent custodian appointed and the permanent custodian is no longer able or willing to serve.
How is Juvenile Intake and Assessment accessed?
Police Drop Off: Juvenile Intake and Assessment Services are primarily accessed through law enforcement agencies transporting a Child in Need of Care directly to designated JIAC’s across the State. There are 32 Juvenile Intake Assessment Centers across the State of Kansas. Johnson County Department of Corrections provides Juvenile Intake services for any Child in Need of Care taken into custody by law enforcement agencies in Johnson County, KS.
Notice and Agreement to Appear: In some cases, law enforcement officers have the discretion to either transport directly to JIAC or release to parents with a Notice and Agreement to Appear, otherwise known as NTA. Unlike the alleged Juvenile Offender NTA (see NTA process under Court Services tab), Child in Need of Care NTA’s are voluntary. In these cases, law enforcement believes that the issue at hand does not rise to the direct transport of the youth to JIAC, instead, parent(s) or guardian(s), can call and set up an assessment around their own schedule.
Walk-Ins: Parent(s) or guardian(s) have the same option to receive JIAC services by walking in to Juvenile Intake and Assessment and asking for an Intake Specialist to help them. However, there may be other police drop off or NTA cases that Intake Specialists are already assessing. This should not deter you from coming in and getting help, but a phone call ahead of time may prevent you from being turned away and asked to come back.
Who does Juvenile Intake and Assessment serve?
We serve any youth ages 0 to 17 who are classified as Children in Need of Care (see CINC definition) or who are at risk for becoming Children in Need of Care. Common at-risk behaviors we see through Juvenile Intake and Assessment are:
- Running Away
- Ungovernable behavior – defiance, not following basic house rules such as curfew
- Truancy and other school behavior issues
- Substance Abuse issues
- Mental Health issues, including cutting and suicidal ideations
- Anger and hostile behaviors
- Sexually Acting Out
- Abuse – Intake Specialists are mandated reporters
- Neglect – Intake Specialists are mandated reporters
What is mandatory reporting?
Intake Specialists are individuals who hold a professional position (such as social worker, physician, teacher, or counselor) that requires him or her to report to the appropriate state agency cases of child abuse that he or she has reasonable cause to suspect.
Will JIAC notify my child’s school about his arrest?
No. JIAC staff do not contact school personnel. Nonetheless, your child’s arrest is a matter of public record and may be known to the School Resource Officer (SRO).
How do I obtain the police report that was written about my child?
JIAC does not disseminate police reports. Please contact the arresting agency to inquire as to their procedure.
What happens when my child is at Juvenile Intake and Assessment?
A Juvenile Intake Specialist will notify the parent or guardian. The Intake Specialist will interview you and your child and collect the following information:
- Family History
- Criminal History, including indications of gang involvement
- Educational History
- Medical History
- Abuse History
- Prior Community Services used or treatments provided
- Standardized risk assessment tool for youth 12 and older
- Interests, Activities, Hobbies
- Strengths and Needs of youth and family
The youth can refuse to take the assessment at any time. The information from the assessment is deemed confidential until a Judge or Intake and Assessment Director releases information to selected parties identified by K.S.A. 38-2310. Some examples are the District Attorney’s Office, SRS, and probation officers.
Once the information is gathered, the Intake Specialist may:
- Release the youth to: the custody of a parent, other legal guardian or an appropriate adult if the Intake Specialist believes that it would be in the best interest of the youth and not harmful to the youth to do so.
- Conditionally release the youth to a parent, other legal guardian or an appropriate adult if the Intake Specialist believes that if the conditions are met it would be in the youth’s best interest, and it might be harmful to release the youth without imposing conditions.
- Deliver the child to a shelter facility or licensed attendant care center.
- Refer the child to the county or district attorney for appropriate proceedings to be filed or refer the youth and family to Social and Rehabilitation Services (SRS) for investigation in regard to the allegations.
- Make recommendations to the county or district attorney concerning immediate intervention programs.
What does it mean when my child is placed in PPC?
PPC stands for Police Protective Custody. This is a 72-hour time period, excluding weekends and holidays, where law enforcement has determined that a child is in imminent danger or a perpetrator has access to the child or the non-involved parent is unable to protect the child from harm. When a child is placed in Police Protective Custody, law enforcement directly transports the child to Juvenile Intake and Assessment. Once the intake process is completed, a placement decision is made and the child will be transported to a safe and appropriate destination. The 72-hour time period is set for Department of Children and Families (DCF) and law enforcement to investigate the allegations.
Who do I contact the day after my child is placed in PPC?
A parent can call Juvenile Intake and speak to an Intake Specialist from 8am-10pm, Monday through Friday, and from 10am-10pm on Saturday and Sunday. However, once a child is placed in Police Protective Custody a temporary custody hearing is set by the Court. Temporary custody hearings are held on Tuesdays and Thursdays. The Court will notify all parties involved regarding the upcoming court date, time and location. The Court will then make the decision to release from Police Protective Custody or not. A DCFsocial worker will also make contact with the family during the 72-hour time period as part of their investigation.
The intake process is not for criminal investigation or for investigations into abuse and neglect allegations as those are completed by law enforcement or DCF. The intake information can only be used to help the Court with a decision regarding the disposition of the youth and cannot be entered into evidence or used in an adjudication hearing as identified in K.S.A. 75-7023.
Is there a fee for this service?
No. Juvenile Intake and Assessment is a free and voluntary service.
What are Juvenile Intake and Assessment Center hours of operation?
Juvenile Intake and Assessment is available to law enforcement 24-hours a day, seven days a week. An Intake Specialist is on-site from 8am to 10pm, Monday through Friday, and then also Saturday and Sunday from 10am to 10pm.
Where is Child in Need of Care Juvenile Intake and Assessment located?
The Child in Need of Care section of Juvenile Intake is located within the Johnson County Youth and Family Services Center, 920 W. Spruce, Olathe, KS and can be reached at 913-715-7320.