Can Children Express Preference in Kansas Custody Proceedings?

Learn more about when courts will consider a child's custodial preference.

By , Attorney · Cooley Law School
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In the United States, 35% of parents with minor children are no longer a couple. Because of this, more and more parents have to face the question of determining child custody.

Deciding custody involves more than just one parent's desire versus the other parent's—courts in most states must consider the child's opinion on custody as well.

This article will explain how a child's preference affects custody in Kansas. If you have additional questions about the effect of a child's custodial preference in Kansas after reading this article, you should consult a local family law attorney.

Understanding Custody

The goal of every custody case in Kansas is for the judge to allocate parenting rights and responsibilities. (Kan. Stat. Ann. § 23-3213.) The court will evaluate each case and determine which parent should be responsible for making decisions for the child (legal custody), as well as where the child will reside throughout the year (residency). (Kan. Stat. Ann. § 23-3207.) Parents can share (joint) either type of custody, or the responsibility can remain with a single parent (sole). (Kan. Stat. Ann. § 23-3206.)

Parents should work together to create a parenting plan that protects the child. A parenting plan should indicate how the parents plan to allocate legal custody, residency, and parenting time. (Kan. Stat. Ann. § 23-3211 (b).) If they do, the court will generally approve it, but it must protect the child's well-being. (Kan. Stat. Ann. § 23-3202.)

Overview of Custody Decisions in Kansas

If parents can't agree (or if the agreed-upon arrangement doesn't benefit the child), the court will step in and determine custody. In every case, the judge begins the evaluation that both parents stand on equal ground when it comes to caring for the children. In other words, the court doesn't presume that one parent is better for the child because of a parent or child's gender or age. (Kan. Stat. Ann. § 23-3204.)

Perhaps the most important aspect in every custody evaluation is whether the arrangement meets the child's best interests. In order to ascertain what's best, the judge must consider several factors, including each of the following:

  • the length of time any person other than the parent has had custody
  • the parent's desires for custody or residency
  • the child's age
  • the child's preference, if the child is old enough and mature enough to express an opinion
  • the child's emotional and physical needs
  • the child's relationship with parents, siblings, and any other person in the household
  • the child's home, school, and community record
  • the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent
  • each parent's desire to allow a continuing relationship between the child and the other parent
  • whether there is evidence of domestic abuse in the family
  • the ability of the parents to communicate, cooperate, and manage parental duties
  • the child's school activity schedule
  • each parent's work schedule
  • the location of each parent's home and place of employment
  • the location of the child's school, and
  • whether either parent is a convicted child abuser, sex offender, or residing with a convicted sex offender or child abuser. (Kan. Stat. Ann. § 23-3203.)

If a parent is a registered sex offender, the court creates a rebuttable presumption that it's not in the child's best interest for that parent to have custody or residency of the child. (Kan. Stat. Ann. § 23-3205.)

To read more information about custody decisions in Kansas, see Kansas Child Custody Laws.

Visitation for Non-Custodial Parents

If the court awards sole residency to one parent, the court will create a reasonable parenting time schedule for the child and the other parent. The child needs to enjoy time with both parents, and a typical schedule may include the child spending alternating weekends and holidays with the other parent, as well as extended visitation on school breaks and summer vacations.

However, under Kansas law, parents have a right to parenting time (visitation) with children unless the court finds that spending time with the parent will endanger the child's physical, mental, moral, or emotional health. (Kan. Stat. Ann. § 23-3208.) As an alternative to denying a parent visitation, the court may permit visitation, but with limitations. For example, if a parent has a history of drug or alcohol dependency, the court may require the parent to attend rehabilitation before allowing the child to spend time with the parent.

It's a common misconception that older children can refuse visitation with a non-custodial parent. On the contrary, until the child turns 18, the custodial parent must follow the visitation order and send the child for visitation. The only exception is if the parent believes the child is in immediate danger.

When Will the Court Consider a Child's Preference?

The judge will consider a child's preference whenever the child is of sufficient age, maturity, and understanding. However, there's no specific age when a child can choose to live with one parent over the other. Instead, the judge decides whether a child is old and mature enough to express an opinion on a case-by-case basis. For younger children, courts may speak with children to determine their maturity before factoring the child's preference into the custody decision.

Judges try to determine the reasons behind a child's preference before deciding how much weight to give it in the custody decision. For example, parents may easily sway a child by giving gifts, lots of attention, guilt, or other emotions. Besides age and maturity, judges will look to factors like the child's relationship with each parent, the strength of the preference, and hostility towards one parent or the other.

Courts will give a child's preference greater weight when the child bases it on factors that coincide with the child's best interest. Judges will disregard the child's preference when the child is making it on a whim, temporary anger with one parent, or superficial reasons like gifts or lax discipline.

Judges also try to ensure that the child's preference isn't the result of a parent's coaching or brainwashing. If the court discovers that someone pressured a child to select one parent, it can work against that parent in the judge's custody decision.

The child's preference is rarely the determining factor in a custody case. The law requires courts to consider the child's preference along with all the other custodial factors. If the child's opinion doesn't protect the child's best interest, the judge won't hesitate to grant custody to the other parent.

Do Children Have to Testify About Their Custodial Preferences in Court?

Kansas courts prefer not to have minor children testify in court about their custodial preferences. Many children already feel responsible for their parent's divide, and asking them to choose between their parents publicly exacerbates the problem.

To minimize the impact on the child, judges interview minor children in court chambers. The court will question the child about views on custody, residency, visitation, and parenting time. The judge sometimes allows the parents' attorneys to be present for the interview, but it always takes place outside of the parents' presence. If either parent requests, the court reporter will make a record of the interview. (Kan. Stat. Ann. § 23-3209.)

In some cases, the judge appoints an investigator to prepare a report about an appropriate custody arrangement. The investigator meets with both parents, the child, and any other person who may have information about the child and potential custodial arrangements. The investigator will talk with the child about custodial preferences and includes the child's opinion in the custody report. Attorneys can cross-examine the investigator about the child's preference in court as well. (Kan. Stat. Ann. § 23-3210.)

When Can I Modify Custody or Parenting Time?

Over time, it's normal for circumstances to cause the current custody orders to become ineffective or inappropriate. However, the law favors stability for children, so changing custodial parents or other aspects of custody is not an easy task. But it's not impossible.

If a parent believes that a custody order is no longer appropriate, that parent can submit a formal request (motion) asking the court to review it. If you're asking the court to modify custody (legal or residency), you'll need to demonstrate that, since the last order, there has been a material change of circumstances. (Kan. Stat. Ann. § 23-3218.)

It's not enough to say that circumstances have changed. Instead, the requesting parent must present facts to prove to the court that a modification is in the child's best interest. If the court agrees, the judge will create a new custody order using the factors discussed above. (Kan. Stat. Ann. § 23-3219.) If one parent repeatedly denies or interferes with the other's visitation, the court may consider it enough of a reason to modify custody or parenting time. (Kan. Stat. Ann. § 23-3221.)

If you'd like the court to modify your visitation (parenting time) order, you will only need to show the court that a modification will serve your child's best interest.

If you have additional questions about the effect of children's custodial preferences, contact a Kansas family law attorney for help.

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