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State of Kansas.
Problems This process is irrevocably broke and being controlled by the Kansas Supreme Court. Multiple issues must be addressed in this process to make it lawful and clear to the Judicial Branch that a Court's interest in administrative efficiency may not be given precedence over a party's right to due process, which includes the right to cross-examine, or to meet opposing evidence, and to oppose with evidence. In Matter of the Marriage of Glenn, 18 Kan. App.2d 603, 856 P.2d 1348 (rev. denied) (1993). The trial court seems to have quaint notions about due process and that it may occur "outside the courtroom" which simply flies in the face of the Anderson and Glenn cases, supra. There is no doubt that having due process hearings in a case would take up a great deal of the Court's time, but there is no excuse for putting blind faith in recommendations, when there are allegations the Case Manager is biased, has misstated evidence or falsified facts without evidence. No doubt it is convenient for a Judge to rely on a Case Manager's recommendations, but when there are allegations of bias, misstating and restating or distorting facts, it is unacceptable to have the Court approve, without a hearing, the actions of a Case Manager who has created conflict between themselves and the parties in those cases. Simply put, statements of a Case Manager are not admissible evidence because they are hearsay The provisions of K.S.A. 23-3507 clearly do not call for an evidentiary hearing on the issue of the removal of a case manager and whether a case manager's recommendations should be adopted with objections standing. This is unacceptable while we are talking about a parent and
their child or children, it is simply unlawful to make changes in parenting time without an evidentiary hearing. These are not criminals going into the process! If the statutory scheme regarding how a Court must proceed when considering whether to approve a Case Manager's Recommendations, and K.S.A. 23-3507, et. seq. does not provide due process, the statutory scheme must give way to the constitutional rights of the Appellant. The Kansas Legislature, nor the Judiciary Branch simply has the jurisdiction or the power to override an individual's rights to due process when a liberty interest is modified or taken by the operation of the State. Under the Supremacy Clause of the United States Constitution (Article 6), Kansas must recognize as binding an amendment to the United States Constitution from the time of its adoption and must enforce its provisions within the territorial limits of Kansas not withstanding any inconsistent provisions in the Kansas Constitution or statutory enactments.
Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, Certiorari denied 86 S.Ct. 185, 382 U.S. 894, 15 L.Ed. 2d 150 (1965).
There is no question that the District Court’s of Kansas, is a branch of the Kansas State Government and is acting in that capacity in these cases. Likewise, there can be little doubt that the Case Manager is acting as an agent of the Courts when appointed under K.S.A. 23-3507. This is based upon the definition of "agency" under PIK-Civil 4th, §107.01, which provides: "An agent is a person who, by agreement with another called the principal, performs or is to perform services for the principal, with or without compensation. The agreement may be written, oral or implied by the behavior of the parties."
Based upon the Court's continued blind faith in the Case Manager’s, the Case Manager’s have had full empowerment to make unilateral changes against the parents in this setting. The Court has a duty under Kansas Supreme Court Rule No. 165 to state the controlling facts and legal principles for their decisions and must be executed to save the integrity of the system.
De novo review, rather than an abuse of discretion standard, should apply to a Case Manager's recommendation to change custody or residency of a child because District judges must review all relevant factors in determining a child's best interests. The trial courts are not serving as an appellate function.
Judge’s are engaging in ex parte communications with persons who could be witnesses in these matters. All of these Judicial Canons are applicable:
RULE 2.9 Ex Parte Communications (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows: (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. RULE 2.4 External Influences on Judicial Conduct (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. RULE 2.6 Ensuring the Right to Be Heard (A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. RULE 2.11 Disqualification (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
RULE 2.13 Administrative Appointments (A) In making administrative appointments, a judge: (1) shall exercise the power of appointment impartially and on the basis of merit; and (2) shall avoid nepotism, favoritism, and unnecessary appointments.
Case Managers are not talking to the children or not getting their input after the age of 10. Additional problems - Case Managers lose their neutrality, make themselves the focus of these cases, and then have an intense need for authority or power over the parties. The statute does not adequately protect families as they try to resolve their conflicts. By authorizing courts to require families to use Case Managers, the statute allows the judicial branch to order Case Management without the consent of all parties involved. The citizens of Kansas did not approve legislation that delegates judicial authority to a Case Manager which allows them to serve in the dual role of judge and jury of parents’ or children’s rights. The concerns expressed by domestic violence advocates that this statute fails to provide adequate safeguards for victims of domestic violence. Case Managers should be able to serve as volunteers and not be limited to an exclusive class of licensed professionals.
Solution Case Management shall be terminated in its current existence. Both Limited Case Management and Mediation can still be utilized by the parties and the courts. These processes set limitations and the authority is carefully spelled out for all parties. We will support a revised bill during the 2013 legislative session that makes the appointment and selection of a Case Manager subject to the consent of both parents. Also, we believe that we must limit the risk of “professionalization” of the Case Managers role by limiting it to volunteers. While I respect the Legislature’s policy choice to allow only licensed professionals, clergy or attorneys to qualify as Case Managers, we believe that any volunteer, especially any faith-based volunteer, who meets certain minimum criteria should be allowed to serve as a Case Manager as well. Basic training and standards are important. We support language, some contained in the current bill and statutes, regarding domestic violence training, family-court procedures, and mediation. We are committed to working with the sponsors of this legislation to create a program that can assist parents, preserve their rights, protect the best interests of the children involved, and address the concerns noted above. We respectfully request revising these programs to ensure that parents’ paramount rights are not compromised, regardless of the well-intentioned motives of the program or process.
Domestic Case Management New Statutes
Kansas Statutes Chapter 23—Domestic Relations Article 35—Alternative Dispute Resolution . K.S.A. 23-3507 Case Management; process: Case management under this act is the process by which a neutral case manager appointed by the court, or by a hearing officer in a proceeding pursuant to K.S.A. 2011 Supp. 23-3401, and amendments thereto, or through agreement by the parties, assists the parties by providing a procedure, other than mediation, which facilitates negotiation of a plan for child custody, residency or visitation, or parenting time. In the event that the parties are unable to reach an agreement, the case manager shall make recommendations to the court. process will terminate. A Case Manager will: (1) Communicate with all parties, counsel, and children in a manner, which preserves the integrity of the case management process and considers the safety, Due Process and Civil Rights of the parents and children. (2) Be a non-adversarial process designed to reduce acrimony and settle disputes efficiently. Judges are not a party nor will they interfere in the process or influence the process. This is a “neutral” process and will be kept as such. All communication and agreements will be produced to all parties and counsel at the same time. (3) Facilitate agreements between the parties in a timely manner on all disputes regarding their children as they arise. (4) Serve as a coordination function by working with the with the family (5) Facilitate resolution of issues by agreement of the parties by acting in a formal mediation role. An effort towards resolving an issue (which may include mediation, educational, and negotiation skills) (6)Gather written or verbal statements of the dispute from EACH party, as well as other relevant sources of information. The process used by the CM shall be fair to both parties, and be transparent to the parties. Each party shall be given an opportunity to be heard in the process. If one party refuses to cooperate after notice, then the CM may not continue. (7) Be subject to process, or to be called on to testify. (8) Complete the survey sheet in their packet, and grade the Case Manager on their abilities or skills in their respective case. This document will be sent to the Dispute Resolution Director in Topeka, where a grading scale and experience database will be kept to compile a complete history on the experience and satisfaction of the parties. This process will allow for skill references and qualifications of the case managers currently and in the future. 6
K.S.A. 23-3508. Same; When ordered; Appointment of Case Manager; qualifications: (a) The court may order case management, when appropriate, of any contested issue of child custody or parenting time at any time, upon the motion of a party or on the court’s own motion. A hearing officer in a proceeding pursuant to K.S.A. 2011 Supp. 23-3401, and amendments thereto, may order case management, if appropriate, of a contested issue of child visitation or parenting time in such a proceeding. (b) Cases in which case management is appropriate shall include one or more of the following circumstances: (1) Private or public neutral dispute resolution services have been tried and failed to resolve the disputes; (2) other neutral services have been determined to be inappropriate for the family; (3) repetitive conflict occurs within the family, as evidenced by the filing of at least two motions in a six-month period for enforcement, modification, or change of residency, visitation, parenting time or custody which are denied by the court; or (4) a parent exhibits diminished capacity to parent. ( c) If the court or hearing officer orders case management under section (a), the court or hearing officer shall appoint a case manager send the case to the Dispute Resolution Coordinator to select an appropriate Manager based on experience, skills, and training, and in their rotation, taking into consideration the following: (1) An agreement by the parties to have a specific case manager appointed by the court or hearing officer; (2) The financial circumstances of the parties and the cost assessed by the case manager; (3) The case manager’s knowledge of (A) the Kansas judicial system and the procedure used in domestic relations cases. (B) other resources in the community to which parties can be refereed for assistance. (C) child development, (D) clinical issues relating to children. (E) the effects of divorce on children and (F) the psychology of families; and (4) The case manager’s training and experience in the process and techniques of alternative dispute resolution and case management. (5) A CM shall serve by parent stipulation, which shall clearly and specifically define the CM’s scope of negociations a. A court order is necessary to provide the CM scope to work with the parents outside of the courtroom process, to obtain information, and to help the parties make recommendations and decisions as specified in the order b. In addition to the court order for the CM, a written agreement between the parties and the CM may be used to detail specific issues not contained in the court order. c. The court order or consent order should specify a term of service for the CM, including starting and ending dates; a six-month appointment is the longest length of time they may serve. Both parents will have to 7
request that a CM continue for additional terms of service following the expiration term or the parents can decline to renew the CM’s services. Similarly the CM can give notice prior to the end of the term of service that the CM will not continue to serve as CM. d. A CM should not initiate providing services until the CM has received the fully executed and filed court order appointing the CM, or that the parents, their counsel (if any), and the CM have signed a consent agreement, if any (d).To qualify as an appointed case manager, an individual shall (1) (A) Be currently licensed in Kansas as a licensed psychologist, licensed masters level psychologist, licensed clinical psychotherapist, licensed professional counselor, licensed clinical professional counselor, licensed marriage and family therapist, licensed clinical marriage and family therapist, licensed master social worker or licensed specialist social worker; (B) be currently licensed to practice law in Kansas and have at least five years of experience in the field of domestic relations law or family law; or (C) be a court services officer and have training in domestic relations cases as prescribed by the district court in which the case is filed; (2) be qualified to conduct mediation; (3) have experience as a mediator; (4) attend a workshop one or more workshops, approved and as ordered by the district court in which the case is filed, on case management; and (5) participate in continuing education complete a minimum number of continuing education hours regarding case management issues or abuse and control dynamics issues as established and approved by the Supreme Court. (e) On and after September 1, 2012, any case manager appointed by the court prior to, on or after July 1, 2012, shall meet the requirements of subsection (d).
23-3509. Case manager; duties; withdrawal; reassignment; termination; recommendations: (a) A case manager appointed under K.S.A. 2011 Supp. 23-3508, and amendments thereto, shall: (1) Meet with the parties, and other individuals deemed appropriate; (2) gather information necessary to assist the parties in reaching an agreement or making recommendations, including medical, psychological, education and court records, including child custody investigations and child custody psychological evaluations, of the parties and children; (3) report to the court as directed by court order. (4) keep a record by date and topic of all contacts with the parties in the case, keep notes and recordings regarding all communications with the parties, the children, and other persons with whom the CM speaks to about the case. . When requested, this record shall be made available to the court parties in total or summary form without the express consent of the parties and shall not be considered a medical or psychological record for purposes of confidentiality; 8
(5) notify the court when a party fails to meet the financial obligations of the case management process; (6) file for collections of cost as necessary. The court shall assist in such filing or collection efforts, or both. If this circumstance should occur the case management assignment will automatically terminate along with the process being terminated. (7) Be authorized by the court to report threats, imminent danger, suspected child abuse, fear of abduction and suspected or actual harm to any party or child involved in case management either directly to the court and to the authorities under K.S.A. 38-223 (D), or both. Such actions shall be followed by a written summary within five business days of the initial filing of such report which shall be sent to the judge or the judge’s designee and included in the court file, and the Dispute Resolution Coordinator and the parties and placed in the file (8) Directly contact the court with any other information the case manager determines that the court should know (9) Explain in writing to the parties and counsel the basis of fees and costs and the method of payment and any fees associated with postponement, cancellation, and/or nonappearance, as well as any other items along with the parties’ pro rata share of the fees and costs. In cases of domestic violence involving power, control, and coercion, the CM shall hold individual sessions with the parties to convey this information. (10) Inform the parties of the limitations on confidentiality in the case management process. Information shall not be shared outside of the case management process. A CM shall maintain confidentiality regarding the sharing of information outside of the scope of the case management process, which is obtained during the case management process, except as provided by court order or by written agreement of the parties. (11) Not directly contact the court or the Judge’s due to the Judicial Canon’s, influence or the ability to have a “neutral process”. (12) Not offer legal advice. (13) Not have the authority to recommend termination of visitation (14) Not have the power to overturn or change previous agreements, contracts, or decrees already in place that the parties agreed to unless the parties agree (15) Not give nor accept a gift, favor, loan, or other item of value from any party having an interest in the case management process. During the case management process, a CM shall not solicit or otherwise attempt to procure future professional services or positions from which the CM may profit (16) Not coerce or improperly influence any party to make a decision (17) Not intentionally or knowingly misrepresent or omit any material fact, law, or circumstance in the case management process (18) Maintain the records necessary to support charges for services and expenses and should make a detailed accounting of those charges to the parties, or their counsel on a regular basis, if requested to do so (19) Not serve in dual sequential roles a. A child’s attorney or child advocate shall not become a CM in the same case b. A mediator or custody evaluator shall be cautious about becoming a CM in the same case, even with the consent of the parties, because of the 9
differences in the role and potential impact of the role change c. A CM shall not become a custody evaluator either during or after the term of a CM’s involvement with the family d. A CM shall not be appointed after serving as a therapist, consultant, coach, or any other mental health role to any family member e. A CM shall not become a therapist, consultant, or coach, or any other mental health role to any family member, either during or after the term of the CM’s involvement f. A CM shall not become one client’s lawyer, either during or after the term of the CM’s involvement, nor shall one client’s lawyer become the CM in that client’s case Not serve in a matter that presents a clear conflict of interest a. A conflict of interest arises when any relationship between the CM and the participants or the subject matter of the dispute compromises or appears to compromise a CM’s impartiality. b. A CM shall disclose potential conflicts of interest as soon as practical after a CM becomes aware of the interest or relationship giving rise to the potential conflict. c. After appropriate disclosure, the CM may serve with the written agreement of all parties. However, if a conflict of interest clearly impairs a CM’s impartiality, the CM will withdraw regardless of the express agreement of the parties. d. During the case management process, a CM shall not create a conflict of interest by providing any services to interested parties that are not directly related to the case management process e. A CM may make referrals to other professionals to work with the family, but shall avoid actual or apparent conflicts of interest by referrals. No commissions, rebates, or similar remuneration shall be given or received by a CM for case management or other professional referrals.
(b) A case manager appointed under K.S.A. 2011 Supp. 23-3508, and amendments thereto, may withdraw at any time following the initial order. Sufficient reasons for withdrawal may include, but not be limited to, the following: (1) Loss of neutrality, which prevents objectivity; or the ability to be impartial (2) nonpayment by a party; (3) lack of cooperation by a party; (4) threat to a party; (5) retirement or case load reduction by a case manager; or (6) any other reason which shall be stated to the Dispute Resolution Coordinator and the parties court in writing and considered adequate and sufficient reasons by the court (7) The inability for the Case Manager to facilitate agreements between the parties (8) By agreement of the parties (9) A CM shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the CM’s skill or expertise. 10
(c) A disputant party may request reassignment of a case manager by filing a motion with the court. The court shall consider such requests upon review,. Repeated requests may raise a presumption of lack of parental cooperation and the court may consider sanctions against the uncooperative parent or parents. The cost incurred, the ability to get the parties to make agreements and any showing of bias, need to be the primary concern and a showing of these request to substantiate the withdrawal. (d) (1) If parties have been ordered by the court to attempt to settle the party's disputes with the assistance of a case manager, and are unable to settle such disputes, the parties are to follow the recommendation or recommendations of the case manager the Case Managers term will automatically expire and the parties shall return to the courts for relief. as ordered by the court. (2) When a case manager is forced to make recommendations for the parties, such recommendations shall be noted in writing as soon as possible and may be accompanied by supporting information. Such recommendation shall be reported to the court with copies to the attorneys of record for each party within 10 working days. (3) Agreements of the parties and recommendations of the case manager which may concern temporary arrangements need not be entered into the court record by the attorneys of record. (4) Case managers shall be furnished a form for orders to recommend such agreements to the court for the court's final order. (5) Permanent issues such as designation of custody, primary residence or child support which are recommended by the case manager shall be entered into the court record within 10 working days of receipt of the recommendation. Should there be differing opinions as to the language of the journal entry, the case manager shall review the proposed journal entry and may recommend appropriate language to the court Dispute Resolution Coordinator. These Permanent recommendations will not go into effect if a disputant party objects to them. Only after an evidentiary hearing, or trial can these recommendations be implemented or ruled on by the courts. (6) If a disputant party disagrees with a recommendation such party may file a motion before the District Court for a review at which time an order shall be made by the court. The case manager shall explain to the court either by report or testimony the reasons for such recommendation or recommendations. (7) Costs of the procedure and professional time may be assessed to the party who objected to the recommendations in the journal entry or may be otherwise assessed by the court. (8)In a review of all recommendations objected to by the parties the courts will review all objections under a “De novo Standard”. Under no circumstances are the recommendations or the findings of the recommendations to be reviewed under an “abuse of discretion standard” as that is reserved for the Appellate Courts. (e) The end of the term or termination of process: (1) All records, recordings, and documents received in this process will be returned to the parties or the attorneys of the parties. (2) The case manager will produce a signed “Non Disclosure” release to the parties. 11
(3) If a case manager is found to have lied or misrepresented the truth or facts in a case, their mediation license will be suspended for a term not less than one year, and any reinstatement of that license will be subject to review for the Dispute Resolution Director in Topeka. A second finding of such actions will result in permanent removal of this process and all case management certifications and licenses will be revoked.
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