February 10, 2020 by Robert Franklin, JD, Member, National Board of Directors
NPO’s shared parenting bill has passed the state Senate by a whopping 39 – 1 margin. Here’s SB 157 in its amended form.
The key language of course is,
(2) In making an order for a temporary parenting plan, there shall be a presumption that it is in the best interests of the child for fit, willing and able parents to have temporary joint legal custody and share equally in parenting time.
The bill only applies to temporary orders, but that’s a good thing for two reasons. First, the custody arrangement during the pendency of the divorce case can easily become the arrangement afterward. Temporary orders have a way of becoming permanent.
Second, as we saw in Kentucky three years ago, once the legislature passes a shared parenting bill that applies to temporary orders, it becomes easier the following session to pass one for permanent orders. Temporary orders get the camel’s nose under the tent and, once in, it’s only a matter of time before the beast is all the way inside.
Now of course the bill goes to the House.
It’s not a perfect bill, but few are. The main danger to shared parenting comes here:
(1) If there is presentation of documentation or other information by a parent that would support a finding of good cause that domestic abuse has occurred or is occurring, there shall be a presumption that it is not in the best interests of the child for the parents to have temporary joint legal custody and share equally in parenting time.
That’s scandalously (unconstitutionally?) vague language that can mean practically anything. Notice for example that the section says nothing about evidence, so apparently, none of the “documentation” or “information” need be admissible in a court of law. That opens the door to, well, anything anyone wants to toss up on the judge’s desk. Likewise, the words “would support a finding” are subject to a wide array of interpretations. What, for example, is the quantum of evidence required before such a finding can be made? The section is silent. Again, the bill offers no guidance to judges about what they can or can’t do when an allegation of DV is made.
And then there’s “has occurred.” What if Dad pushed Mom 25 years before the filing of the divorce petition. Is the presumption of equal parenting reversed? It seems that it would be, because, after all, domestic abuse “has occurred.”
Needless to say, Section 1 wasn’t drafted by NPO’s people in Kansas. The House should draft its own version of the Senate bill and drastically alter Section (c)(1). As that section stands, it’s an open invitation to abuse by anti-shared parenting judges and litigants.
The better news is that, in very few cases is there a claim of domestic violence. That was the finding in Nebraska by Saini, et al who, at the request of the legislature there, reviewed about 400 child custody cases over several years. Only about 5% of cases even alleged DV and I suspect much the same holds true in Kansas.
Of course, if the bill is enacted into law with Section (c)(1) intact, the incidence of DV allegations may rise. Any lawyer reading those words would instantly realize that they give a parent an almost automatic “out” from the shared parenting presumption.
Still, the low level of DV allegations, plus the presumption of equal parenting time hold out real hope for dramatic change in how custody decisions are made in Kansas. Needless to say, NPO will be vigorously lobbying the House for passage of a bill that presumes equal parenting time and includes a sensible section on domestic violence.