## Facts

- The parents divorced in 1996 and initially agreed to share custody of their three children.
- Disputes developed over the father’s relationship with the children, prompting involvement of a case manager and a psychologist.
- The professionals attributed the estrangement largely to the father’s psychological issues rather than to intentional alienation by the mother.
- By 2004, only one child, Evan (age 16), remained a minor.
- The district court ordered that father-child contact would occur only “if and when” Evan wanted it, which resulted in no contact.
- The father appealed the parenting-time provisions, arguing the order improperly delegated visitation control to a minor and effectively denied parenting time without required statutory findings.

## Issues

1. Whether a trial court may condition a noncustodial parent’s parenting time entirely on a minor child’s wishes under K.S.A. 2004 Supp. 60-1616(a) without finding that parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
2. Whether a child’s expressed desires may be treated as the exclusive determinant of parenting time rather than one factor among others under Kansas custody and parenting-time statutes.

## Decision

- The appellate court affirmed in part, reversed in part, and remanded with directions.
- The court held a trial court may not condition a noncustodial parent’s right to parenting time solely on the desires of the minor child.
- The court held a child’s wishes must be considered but cannot be the exclusive factor used to determine parenting time.
- The court concluded the district court’s order functionally denied parenting time without the statutory “serious endangerment” finding required to rebut the presumption of reasonable parenting time.
- The case was remanded for entry of parenting-time orders consistent with the statutory presumption and the requirement that the child’s wishes be weighed as one factor.

## Legal Principles

- K.S.A. 2004 Supp. 60-1616(a) creates a rebuttable presumption that each parent is entitled to reasonable parenting time; restriction or denial requires a hearing and a finding that parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
- A court may consider a minor child’s desires regarding custody or residency as a statutory factor, but the child’s wishes cannot control the parenting-time decision.
- Orders that make parenting time contingent upon a minor child’s desire to visit improperly vest decision-making authority in the child and can amount to an unlawful denial of parenting time.
- When statutory language is plain, courts must apply it as written, including the legislature’s conditions for limiting parenting time.

## Conclusion

The court ruled that a parenting-time order cannot make visitation dependent solely on a minor child’s wishes because it effectively delegates judicial authority to the child and can deny parenting time without the statutory finding of serious endangerment required to overcome Kansas’ presumption of reasonable parenting time.


In re Marriage of Kimbrell, 34 Kan. App. 2d 413, 119 P.3d 684 (Kan. Ct. App. 2005)