In re Marriage of Kimbrell, 34 Kan.App.2d 413; 119 P.3d 684 - 2005
Sep 16, 2005OUTCOME: Affirmed in part, reversed in part, and remanded with directions
1. Under K.S.A. 2004 Supp. 60-1616(a), a parent has a right to reasonable parenting time unless the trial court finds, after a hearing, that the exercise of parenting time would seriously endanger the ... child's physical, mental, moral, or emotional health. K.S.A. 2004 Supp. 60-1616(a) creates a rebuttable presumption that a parent is entitled to reasonable parenting time and visitation. This presumption may be rebutted if, after a hearing, the trial court finds that the exercise of parenting time would seriously endanger the child's physical, mental, moral, or emotional health. 2. The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. 3. Orders which condition parenting time and visitation upon a minor child's desires to see a parent give a minor child the authority to determine parenting time and can have the effect of denying parenting time altogether. 4. Among the factors that must be considered when determining the issue of child custody, residency, and parenting time under K.S.A. 2004 Supp. 60-1610(a)(3)(B) and K.S.A. 2004 Supp. 60-1616(a), the trial court must look at the desires of a minor child as to the child's custody or residency. The child's wishes as to custody, residency, and parenting time and visitation cannot be the exclusive factor relied upon by the trial court in determining parenting time.
