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Archive for Saturday, June 30, 2012

Appeals court ruling affects child custody decisions

June 30, 2012

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A Kansas Court of Appeals panel ruled Friday that district courts must conduct an evidentiary hearing when making child custody decisions if a parent disputes facts listed in a recommendation by a court-appointed case manager.

The decision stems from an appeal of a Douglas County decision in a post-divorce order that granted a change of custody of a child from the mother to the father.

“When the case manager’s recommendations materially affect a parent’s right to the care, custody and control of a child and the case manager’s report relies upon material facts that are either not supported by specific factual references or are specifically disputed by a parent, due process requires that the district court conduct an evidentiary hearing prior to ruling on the recommendations,” wrote Judge Karen Arnold-Burger in the 17-page ruling.

Arnold-Burger said that the decision may result in busier court dockets but that “information received at such a hearing will aid the courts in deciding whether the case manager’s recommendations are in the best interest of the child and ensure that due process, one of the most sacred and essential constitutional guarantees, is provided to the parties.”

The appeal of District Judge Sally Pokorny’s decision involved a child custody case between former spouses Jeffrey Hutchinson and Karen Wray. Wray had argued the district court’s actions deprived her of due process of law. The case manager was Cheryl Powers, according to the opinion.

The judge’s order was based on the case manager’s recommendation without granting a hearing to the mother, who strongly contested facts in the case manager’s report, according to a summary about the decision. Powers began working with the two parents in the Douglas County case for four years in 2007 after a mediation did not work.

Chief Judge Richard Greene and Judge Melissa Standridge participated in the decision. The decision orders the case returned to Douglas County District Court for a hearing on Wray’s objections to the case manager’s recommendations.

“It is clear that Powers’ report makes recommendations regarding residential custody which rely upon material facts that are either not supported by specific factual references or are specifically disputed by Wray,” the opinion states. “Due process requires that Wray be given an adequate opportunity to contest or rebut Powers’ claims and recommendations through cross-examination and the presentation of witnesses.”

Lawrence attorney James Rumsey represented Wray in the appeal.

Chief Douglas County District Judge Robert Fairchild said many times a case manager’s recommendations in a case do not involve custody or parenting time, but if they did, a judge had discretion over whether to grant a hearing if a party complained about any recommendations.

“This will undoubtedly mean more contested hearings and may result in fewer cases being referred to case management,” he said.

Comments

childrenfirst 2 years, 5 months ago

I can't think of anything better for the children of Kansas than the end of case management as we currently know it. Until children are treated as people with the right to speak in a court of law then the system is fatally flawed. No child should have his or her life uprooted without being given at least a few minutes to talk to the judge. His or her opinion should be noted in the file's permanent record. Finally, if the case manager's report contradicts what the child is saying, then that case manager should be removed or at the very least the child should be entitled to his or her own representation. In an effort to save the court time, case management deprives our most precious citizens of all rights to be heard and spend time with the people they hold most dear, their families.

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