How Does A Court Determine Whom Gets The Children And Who Pays Child Support After A Divorce?

When a couple seeking to end their marriage has children under 18, or children still in high school, specific planning is required to ensure the children are cared for following the divorce.

This is typically accomplished through what court’s formally call Parenting Plans and Child Support orders. The purpose of a Parenting Plan is to outline matters relating to custody, parenting time (e.g., a parents time with their child), and each parents general responsibilities for their children. In Kansas, any divorce proceeding that involves minor children must utilize some form of a formal Parenting Plan, ultimately approved by the court. Whereas a Parenting Plan addresses matters related to the actual day-to-day physical caring for a child, Child support, in contrast, ensures the child has sufficient financial support to be appropriately cared for. This is typically accomplished by the Court requiring one spouse to make payments to the other for childcare related expenses.

Who Determines The Parenting Plan? 
Every parenting plan must be approved by the court to ensure it is in the best interest of the children. When a couple with children determines a divorce proceeding is imminent, the need for a parenting plan immediately arises. In some cases, the parents can agree upon a “temporary” parenting plan to be utilized while the divorce is proceeding. In other cases, one party may have to petition the court to enter such a temporary plan. In either situation, the temporary plan must outline the legal custody, residency, and timing requirements to be spent with each parent. Generally speaking, this initial “temporary” parenting plan will remain in place until the divorce is finalized—which will also include a full or permanent parenting plan being entered. However, in other cases, there may be a need for a court or the parties to revisit a temporary plan during the pendency of the case. If the couple cannot agree to a temporary plan, each will typically be allowed to submit his or her own temporary plan to the court. The court will then set a temporary parenting plan based upon these two proposed schedules, based on which schedule the Court believes will better suit the children’s best interest.

In all divorce or child custody proceedings, the court and practitioners alike encourage parents to work together in forming both temporary and more permanent parenting plans. The objectives of a parenting plan should focused on the parties’ children: e.g., ensuring a couple can work together in dividing the responsibilities of raising their children and providing for the well-being of their children, including their physical, emotional, and mental wellbeing. Courts in Kansas generally seek to ensure a parenting plan can adapt as a child ages, and that the parties’ children are protected from harmful conflicts between their divorcing or separating parents. From time to time, parties can and do fully agree to the terms of their parenting plan. Even in these instances, however, the court must still approve the agreement as being in the best interest of the children. Thus, even in situations where parents fully agree on matters relating to custody and scheduling, a court of appropriate jurisdiction will still have to approve the agreement before it is formal and legally binding. The good news is, in Kansas, courts will presume an agreed upon parenting plan serves the best interest of the children subject to the plan, as Kansas law presumes parents, unlike judges sitting on a bench, are in the best position to make decisions for their own minor children. Courts do however reserve jurisdiction to override an agreed plan if it finds the plan is not likely going to serve a child’s best interest.

What Is Included In A Parenting Plan? 
A parenting plan can easily become very detailed and complicated document, as it can potentially include provision dealing with virtually anything related to custody or caring for a minor child. Meaning it can include everything from whom the child will be with on a given week night, to how many times a week a parent is able to call their child when they are with the other parent.

That said, there are certain basic requirements a parenting plan must meet to be approved by a Kansas court. These include an outline of the custody agreement, including a designation of whether the parents will exercise joint or sole custody over their children, and a method of resolving disputes arising from the parenting plan outside of court. The outlined custody agreement should also include a schedule for each parent’s time with the children; this is even so in situations where one parent may exclusive, full custody over a child. Such a “bare-bones” parenting plan is rare, however. As most parenting plans will also touch on at least some of the following issues, if not all: residency of the children, special occasion scheduling (holidays, birthdays, weekends, etc.), health insurance obligations, education obligations, requirements for sharing medical and other information regarding the children between the ex-spouses, transportation obligations, relocation procedures or limitations, and even access to a cellphone. Again though, this is a non-exclusive list of the things that may be addressed in a Parenting Plan.

How Is Child Support Determined? 
Kansas has used mandatory guidelines for determining the amount of child support since 1987. The guidelines are updated fairly routinely, with the last changes occurring recently in 2016. Generally speaking, the guidelines set forth the minimum amounts to be paid by a parent in a custody proceeding in Kansas. While courts in Kansas have some authority to deviate from the guidelines in certain instances, such as when parents want to agree to a different financial arrangement, they are nevertheless required to abide by the guidelines when doing so, and are further required to make specific findings that any deviation serves the best interest of the children. Such findings are very rare, however, which is why the guidelines can generally be relied upon as the minimum amount of support for any given case.

Generally, the guidelines used in Kansas look to three factors in determining the minimum amount of support a child should receive. These include: (i) the parents’ respective gross incomes, (iii) support obligations owed or received by either parent in other judicial proceedings; and (iii) the age of the children. Gross income does not relate directly to taxable income. Instead, it generally includes other forms of income, such as expense reimbursement or company allowances, while also excluding certain non-mandatory deductions. Once determined, the gross incomes of each parent are added, and the portion of the income each spouse provides is used in arriving at a figure. Support obligations are next considered. These include spousal maintenance and child support obligations from other marriages. The guidelines look to both support paid and support received for this factor. The final variable is the number of children and their ages. Children’s ages are considered in three ranges: 0-5, 6-11, and 12-18. These age ranges each carry a different support amount, and that amount changes based on the number of children in each range. The younger the child, the less the amount owed will be.

Can The Amount Of Child Support Change Over Time? 
Yes. Child support amounts frequently change throughout a child’s life, as children, pursuant to Kansas guidelines, become more costly as they age. Furthermore, the amount of support is typically reviewed periodically every three years pursuant to statute. Even between these periods, however, a “material change in circumstances” will result in an alteration of the amount. Such changes include a multitude of occurrences, such as a change in salary or income by either party, loss of employment, or a change in childcare or insurance cost. Again however, this is a non-exhaustive list. It is also important to note that Kansas imposes an obligation on parties to inform the other parent of any such change. Failure to do so can result in possible sanctions—e.g., a monetary fine—from the court. Once such a change of circumstances has occurred, either party may motion the court to reconsider and recalculate the amount of support. These modifications can be in the form of an increase or a decrease in amount.

Parenting plans and child support are only part of the requirements for obtaining a divorce. These considerations require the parents to work together, despite the contentious proceedings that may be simultaneously occurring in court. It is important to have trusted legal counsel to advise a parent on what is and is not permissible in a parenting plan, as well as what the obligations they are likely to incur are.

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