When one parent wants to relocate after a divorce, custody arrangements may become complicated. Generally speaking, if both parents don't agree to the move, they'll have to go through court proceedings to make sure the move doesn't hurt the children or infringe on either parent's rights.
Under Kansas law, when a parent has legal custody (meaning, the right to make important decisions about a child's life) or physical custody (the child lives with that parent some or all of the time), or when a parent has a right to parenting time (visitation), that parent can't just move away with the kids without the other parent's permission or court approval.
If a parent wants to move and change the child's official residence, or even just take a child away for more than 90 days, that parent has to notify the other parent at least 30 days beforehand. The notice has to be in writing and has to be sent by registered mail, return receipt requested, to the other parent's last known address. Written notice is a vital legal requirement, and if a parent fails to provide it and just takes the kids away, that parent can be held in contempt of court and forced to pay the other parent's attorney fees and other legal expenses. The only time that notice isn't required is if the other parent has been convicted of committing crimes against the child.
The first (initial) custody order in any family law case will say where the child will live (residency) and sometimes says that the child has to stay in a certain place, like a city or a county. Kansas family courts are free to impose geographic limits in their first custody orders. However, even if an initial order says that a child has to live in a certain location, the court has the power to change that later. If there has been a material change of circumstances, which means that there's been a life-changing event of some kind, then a family court can modify residency.
If there have been a lot of disagreements between the parents and they've gone to court to argue about custody, there may also be additional residency orders.
In order to modify the most current custody order and gain official permission to move, the parent who wants to move will have to argue the following issues in family court:
If a parent gives notice of a proposed move to the other parent, and the other parent objects, then the matter shifts to the courts. A judge will listen to witnesses and consider evidence about the case. Most importantly, the court will evaluate what is in the child's best interests, and specifically, determine which parent will do a better job of raising the child and providing a better home environment. The parent who wants to move doesn't have to go so far as to show that the other parent is unfit, but rather just that the move is better for the kids.
The court will look at the availability and willingness of each parent to take care of the children. The judge also has to take into account each parent's rights and the added expenses associated with a proposed move, but the court's most important consideration must always be whether the move is in the children's best interests. A child's best interests include, but aren't limited to:
The burden of proof is on the parent who wants to move to show the court that a move is in the children's best interests. After hearing all the witnesses and considering all the evidence, the judge will issue findings of fact and a legal decision about whether a parent can move away with the children. The bottom line is that the parent who wants to move has to show that the new arrangement is best for the kids.
In one important decision from the Kansas Supreme Court, a divorced mother received custody of the parents' two very young children in the initial order. After that, she made business arrangements that took her out of Kansas for substantial periods of time as she was working to improve her post-divorce financial situation. She asked the children's father to care for the children while she was gone. Eventually, she moved permanently out of state and took the kids with her. She hired live-in help to care for the children while she worked, and started a romantic relationship with a new partner.
Due to her work load and her new relationship, the mother had much less time to spend with the kids. She also allowed her new partner to physically discipline the children and to act as a de facto father, and her live-in help didn't properly care for the kids. By contrast, the children's father had a more stable, permanent relationship with a new wife who was ready and able to act as a stepmother.
The Kansas Supreme Court found that the father had proved that the mother's new business and personal arrangements had taken priority over her relationship with the children. The court noted that the choice was between "placing the children in the custody of a series of housekeepers or in the custody of the children's stepmother." Accordingly, the court ordered that the children be returned to Kansas and placed in their father's custody.
In a more recent decision from the Kansas Court of Appeals, a mother received custody of her child after a divorce and the father received visitation. In the years following the divorce, the parents continued to live in the same area in Kansas, but later the mother remarried and wanted to follow her new husband to Arizona, where he'd been offered new employment. She took the kids to Arizona, and only after that had been done did she make a written notice of her intent to move away with the children. She didn't give the full 30 days' notice required by Kansas law. The father then filed a motion that would have changed the existing custodial arrangement by requiring the children to remain in Kansas with him.
The Court of Appeals focused part of its decision on the mother's failure to provide the proper notice. It ruled that the purpose of the notice requirement is to allow each parent to make arguments about the potential impact on the children of a move away from Kansas, and that for a parent to move first and provide notice later frustrates the law's purpose. The appellate court held that lower courts can and should consider whether proper notice is given when evaluating the testimony of a parent who wants to move away with the children.
If you have custody or visitation rights and you want to move out of Kansas with your children, or if your ex wants to take your children away against your wishes, you should contact an experienced Kansas family law attorney to assess your situation and advise you about your rights and obligations.