WHAT HAPPENS IF KIDS ARE INVOLVED?
FILING ON BEHALF OF A CHILD
In Kansas, a person can seek a protective order on behalf of a child. This means the order can be exclusively for the child or it can include the child as well as others. The following people are the only people who can file a PFA or PFS on behalf of a minor child:
The child’s parent;
An adult residing with the child; or
The child’s court-appointed legal custodian or guardian
In order to file on behalf of a child, the person you want restrained must be an intimate partner or a household member, and one of the following has occurred:
The defendant physically hurt you or the minor child on purpose;
The defendant tried to physically hurt you or the minor child;
The defendant recently threatened to physically hurt you or the minor child;
The defendant engaged in any sexual contact or attempted sexual contact with you or the minor child when such person was incapable of giving consent; or
The defendant engaged in sexual conduct with the minor child (only for those under 16 years old).
Any time children are involved, the filing party must also complete a UCCJEA affidavit and file it with the court. If there are already legal proceedings pending involving your child or children, that may have an effect on the court that will hear your PFA or PFS case.
DISCIPLINE/CORPORAL PUNISHMENT: WHEN IS IT APPROPRIATE TO FILE A PFA FOR YOUR CHILD?
This is a common question that comes up in family law matters when two parents disagree on methods and forms of punishment. Sometimes one parent feels another parent has gone too far and is concerned for the child. That parent might consider getting a PFA against the other parent, protecting their child. The short answer to whether this is possible is also the answer to most legal questions: it depends.
In 1996, the Kansas Court of Appeals considered the issue of whether corporal punishment (physical discipline) by a parent against a child constitutes “abuse” and is grounds for a PFA against the parent imposing that discipline. In considering the purpose of the Protection from Abuse Act, the Court decided that not all instances of discipline that causes bodily harm qualifies. They ruled that there “undoubtedly are instances when discipline of children escalates into domestic violence which would warrant relief under the Act…” However, they determined this was not the purpose of the act and thus not all instances of physical discipline automatically qualify. “The State’s intrusion should be limited to injunctive relief where parental conduct causes more than minor or inconsequential injury to the child…bodily injury under the Act requires a finding of substantial physical pain or an impairment of ap physical condition.” Paida v. Leach, 260 Kan. 292, 300-1 (Kan. 1996).
In short, a line must be crossed in order for the discipline to become abuse and thus qualify for a PFA. That determination needs to be made on a case-by-case basis. The circumstances taken into consideration on each case, aside from the level of injury or pain inflicted, includes the age of the alleged victim and his or her relationship to the alleged abuser.
If you ever see behavior or actions towards your child that concern you, but you don’t know if you need to involve law enforcement or the courts, you can always call our office. We can listen to what is going on and talk through your options with you.
SEEING YOUR CHILDREN DURING AND AFTER YOUR PFA/PFS CASE
Any time children are involved in a PFA or PFS case, it is best to have an attorney involved. Parties often think that informal arrangements can be set up or family members or friends can be used as intermediaries for exchanges. Such arrangements or agreements can quickly become fraught with issues and could lead to potential violations of court orders. The best thing to do if children are involved is get an attorney, establish clear and concise rules and procedures for parenting time and custody arrangements, and get those rules adopted by the court so that they become enforceable orders.
Once a final order has been issued, this is even more important. Violation of the final PFA or PFS order, even if by accident, could lead to criminal prosecution. Having these arrangements codified in the final court orders eliminates that risk and can help put all parties’ minds at ease knowing there is a set plan that needs to be followed. But this can only be done if everything has been thought out, agreed to, and specifically drafted prior to your final hearing.
Finally, there are other ways to finalize a PFA or PFS case that can allow for two parties to have an order limiting their contact around each other, with an exception of communications or contact for the mutual children. In order to learn more about this option or discuss which option may be best for your case, contact our office and speak with one of our attorneys.