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."
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.
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.