You should know about the following important information if you’re engaged in a child custody action in Kansas.
- What are the Types of Child Custody in Kansas?
- Determining Child Custody in Kansas
- What to Know About Parenting Plans
- How Do I Modify a Kansas Custody or Visitation Order?
- Kansas Child Custody FAQs
What are the Types of Child Custody in Kansas?
Kansas Family Law Codes § 23-3201 through § 23-3222 established the state’s legal rules governing child custody matters. These statutes outline the types of custody that a court can award in the state, including legal and physical custody.
With a joint legal custody order in place, both parties should consult each other about major decisions for the children, such as where the children go to school; where they go to church; who their doctors are; consent to marriage; medical treatment, and other similar important life events.
In some cases, the court will award sole legal custody, which means the residential parent does not have to consult with the other parent about major decisions for the children. However, both parents have equal access to medical and school records. The judge must make the finding that there are facts to support the awarding of sole legal custody.
These orders do not prevent or limit the other party’s parenting time with the children.
Physical custody determines where the child will live. The residential parent will be the primary place where the child lives, and the nonresidential parent will have visitation privileges that are spelled out in a parenting plan that is either created by the parents or decided on by the court.
Divided custody is less common and means one child lives with one parent and another child with the other. Each party has visitation with the child in the custody of the other. It is rarely used because courts prefer that children remain together unless there are extenuating circumstances.
Non-parental custody may also be an option and can be granted in the short term if the court believes the parents are unfit or the child requires care. Grandparents or other relatives can take custody in this situation.
What is visitation?
Visitation is the right of the non-residential parent to spend time and have access to their child.
The court may order ‘reasonable’ visitation, which allows a parent to see the child at sensible times under reasonable conditions after ample notice with details worked out between the parents.
When there are disagreements between the parents, a judge may order specific visitation with specific times or places for access to the child. The court can also order the parties into mediation or alternative dispute resolution methods. Under mediation, the parties sit down with a neutral third party who tries to help them reach an agreement. It is non-binding, and anything that occurs or is said in mediation is confidential.
If a case working out visitation rights is still pending, you will need to ask for a temporary order for visitation. Suppose there is a final order on file outlining visitation. In that case, it is a matter of either filing a motion for specific visitation or filing an action to enforce the currently ordered visitation.
A judge can restrict or prohibit access if there is evidence that visitation would harm the child. That may be the case if the parent has a history of drug use, domestic violence or child abuse. A judge can order that visitation is supervised by a third party, such as a social worker, relative, or court officer.
How can I get temporary custody?
A parent could file for temporary custody as part of a custody proceeding as long as the parent files a proposed temporary parenting plan simultaneously. The judge can approve a temporary parenting plan that includes detailed legal and residential custody information and a schedule for the child’s time with each parent when appropriate.
You can also ask for temporary custody, residency, or parenting time as part of an emergency or temporary protection from abuse order.
Determining Child Custody in Kansas
Parents usually file for custody in the “home state” of the child. Kansas qualifies as a child’s “home state” if the child has lived in Kansas with a parent or a person acting as a parent for at least the past six months. If a child is less than six months old, then the child’s home state is the state where they have lived since birth.
A person can also file for temporary emergency custody in a state other than the home state. This can occur if the child is present in the state and has been abandoned, or it is necessary in an emergency to protect the child because the child, a sibling, or a parent of the child is subjected to or threatened with mistreatment or abuse.
A judge may appoint a guardian ad litem or case manager to find out more about a child’s needs and evaluate the ability of both parents to meet those needs. That can include interviews with the parents, the child, and others and looking at evidence to determine fitness and what arrangement will be in the child’s best interests.
These recommendations will play an important role in influencing a judge’s decision, the judge still has full autonomy, and such investigations are not binding to the court.
The court has broad discretion to determine the best interests of the child and will consider all relevant factors, including:
- The child’s age, emotional and physical needs
- Each parent’s role and involvement with the child before and after their separation
- Each parent’s desire for custody or residency
- The child’s preference if they are of sufficient age and mature enough to express an opinion
- The child’s interaction and relationship with the parents, siblings, and other household family members
- The child’s adjustment to home, school, and community
- Both parents’ willingness and ability to respect and appreciate the bond between the child and the other parent and allow a continuing relationship between the child and the other parent
- Evidence of domestic abuse or substance abuse
- The parents desire to communicate and cooperate
- The child’s school location, schedule, and extracurricular activity schedule
- Each parent’s work schedule
- The location of each parent’s home and workplace
- Other relevant information
If one parent offers other relevant information, the judge will consider it in determining the best interests of the child.
Kansas does not automatically presume that it is in the best interests of an infant or young child to be with the mother. Kansas divorce laws explicitly state that judges must consider all relevant evidence and all the best interest factors when determining which parent should have custody.
What to Know About Parenting Plans
Parenting plans are detailed instructions about the physical and legal custody for each child when parents divorce or are legally separated.
Kansas law provides that if parents can’t agree on a parenting plan, the court can evaluate the case and create a custody plan for them. When the parents agree on custody, they can present the court with a written “permanent parenting plan.” but it is not binding on the court. A judge can still find that the parenting plan is not in the best interests of the child and order alternative arrangements based evidence to the contrary.
The more detailed the plan, the less chance for disagreements and confusion later. Because this is an important legal document, it’s often a good idea to retain an experienced attorney familiar with Kansas child custody laws to help draft a plan.
At a minimum, parenting plans should contain the following:
- Physical custody, including the number of overnight visits for each parent.
- Legal custody and the rights and responsibilities of each parent
- Access to records and information
- Adjustments when the children reach certain ages
- Exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Holiday schedules and school break schedules
- Vacation and travel approval and advance notifications
- A child’s ability to communicate with both parents
- Communication between parents, such as having a preferred method (calls, emails, texts)
- Contact with other family members and friends and restrictions based on the child’s best interests
- How expenses are handled related to medical costs, school activities, tuition, hobbies, and recreational activities
- Children’s use of technology and online activities
- Handling special needs for the children as they arise
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
- Child support payment amounts and recourse if a parent falls behind.
How Do I Modify a Kansas Custody or Visitation Order?
Custody and visitation orders can become outdated as a child grows up. Needs and schedules change, and the current order may no longer suit your or the child’s need. This may necessitate a modification in the original order.
Either parent can petition the court for a modification by filing a motion with the Kansas courts. This will result in a review that could lead to a modification, but the court has the power to decide if a modification is appropriate using the same best interests standard as the original order.
The instructions below help people who want to do it themselves when establishing, enforcing or modifying parenting time.
- Instructions for Pro Se Motion to Establish Parenting Time
- Instructions for Pro Se Motion to Enforce Parenting Time
- Instructions for Pro Se Motion to Modify Parenting Time
Kansas Child Custody FAQs
Do parents with joint custody need to pay child support?
Support and custody are two separate issues. Support is based primarily on financial issues regardless of the custodial arrangement.
Can I be denied visitation if I don’t pay child support?
No. A parent still has visitation rights regardless of their payment of child support. The only instance in which visitation will be denied is if a judge determines that exposure to a parent might result in physical, psychological, or emotional harm to the child.
What if a parent tries to move with children out of state?
It depends on the custody arrangement. Usually, the parent with residential custody is required to give written notice at least 30 days before changing the child’s residence or taking the child out of state for longer than 90 days.
The failure to do so is an indirect civil contempt. It could lead to disciplinary court actions, including the award of attorney fees and expenses incurred because of the failure to give notice. If you want to prevent a move by the other parent and child, you must file a Motion to Modify in the 30-day notice period.
By state statute, if you have legal custody or residency of the child, you are not required to give this type of notice to the other parent if they have been convicted of:
- Certain violent crimes, sex offenses, or crimes against children
- Unlawful disclosure of tax information
- Unlawful interference with a firefighter or an emergency medical services attendant
- Permitting a dangerous animal to be at large
- Prostitution, promoting prostitution, or patronizing a prostitute
- Commercial sexual exploitation of a child
Do new partners or spouses have an impact on getting custody?
A parent living with a new boyfriend or girlfriend will not necessarily have a negative impact on their suitability for custody. This may be a factor if the child does not have a good relationship with such a partner. The only instance in which this plays a significant part in influencing a judge’s decision is if either partner is living with someone who has been convicted of child abuse or is registered as a sex offender.
If I move out of the marital home but leave my children behind, how could this affect my chances of gaining custody?
If the other parent files a petition for divorce after you leave, the judge can issue a temporary ex parte order regarding the legal custody, residency, and parenting time that will be in effect during the court proceeding. To get a temporary ex parte order for custody, you will have to convince the judge that there are extraordinary circumstances or that leaving the children for a short time is not the same as the other parent having sole residency.
Can a parent who committed abuse get custody, residency, or parenting time?
If the other parent committed abuse, it doesn’t necessarily mean that the parent will not get any rights of legal custody, residency, and parenting time. A judge will consider many factors, including if there has been a pattern or history of physically or emotionally abusive behavior, or the threat of either, that the abuser uses to gain or keep control over you, and was the parent criminally convicted of child abuse or are they a registered sex offender?