When parents get divorced (or unmarried parents break-up), they must try to work out a custody arrangement and parenting schedule. If they're not able to agree, a judge must make decisions about child custody and visitation.
This article will provide a basic overview of custody and parenting time in Kansas. If you have additional questions or need more information on how to proceed with your case, speak with an experienced family law attorney near you.
Kansas law provides that, if parents can't agree on a parenting plan after a divorce, the court can evaluate the case and create a custody plan for them. (Kan. Stat. Ann. § 23-3201.) In cases where the parents do agree on custody, they can present the court with a written "permanent parenting plan." (Kan. Stat. Ann. § 23-3202.) The parenting plan 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 upon the evidence presented. In most cases, the court will approve the parenting plan.
Judges split custody into two categories: legal custody and residency. Legal custody refers to the allocation of each parent's rights and responsibilities to make educational, religious, moral, and legal decisions about the child. Residency is sometimes used interchangeably with physical custody, which refers to which parent the child will reside with throughout the year.
Judges can award either type of custody to one parent, both parents, or a combination.
Joint legal custody means that both parents have an equal right to make decisions regarding the child's wellbeing. If parents can't agree on a particular issue, the court will decide for them. If the court grants sole legal custody to one parent, that parent doesn't need to seek permission on any decision regarding the child. It's rare for judges to award sole legal custody and will only do so if the court believes it's not in the child's best interest for both parents to have equal decision-making responsibility for the child. Judges who award sole legal custody to one parent must explain, on the record, the reasons for the decision. (Kan. Stat. Ann. § 23-3206.)
Because the law favors stability for children, it's more common for judges to award primary custody or residency to one parent and parenting time (visitation) to the other. (Kan. Stat. Ann. § 23-3207 (a).) However, the judge will evaluate each case on an individual basis before deciding on sole or joint residency of a child.
Rarely, in cases with multiple children, the court may award "divided" residency, which is where the court may order a residential arrangement where each child resides with a different parent and has parenting time with the other. (Kan. Stat. Ann. §23-3207 (b).)
In Kansas, a judge, not a jury, decides how to divide legal custody and residency of the child based on what is in the best interests of the child. The best interest standard also guides the judge's decisions about visitation. The court has broad discretion to determine the best interests of the child and will consider all relevant factors, including:
These factors are not exhaustive or exclusive. 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. Instead, the law explicitly states that judges must consider all relevant evidence and all the best interest factors when determining which parent should have custody. (Kan. Stat. Ann. § 23-3204.)
If one of the parents is living with a registered sex offender or someone convicted of child abuse, there is a rebuttable presumption that it is not in the child's best interests for that parent to have custody. A rebuttable presumption means the court starts with that presumption, but a parent can overcome if that parent presents enough evidence to the court. (Kan. Stat. Ann. § 23-3205.)
To assist the court in determining the best interests of the child, the judge may appoint an investigator to evaluate the child's needs and each parent's ability to meet those needs. The court may also order that either parent undergo physical or mental examinations. The investigator's recommendations based on these investigations and examinations are not binding on the court, but the court will give them significant weight. (Kan. Stat. Ann. § 23-3210.)
The court may also choose to interview the minor children in chambers when deciding custody. The interview may be off the record (private), or the court may approve an attorney to be present with the child. (Kan. Stat. Ann. § 23-3209.)
When the court awards one parent sole residency, the judge will typically create a reasonable parenting time schedule for the non-custodial parent and the child. A typical schedule usually includes the child spending every other weekend, alternating holidays, and half of summer and other school vacations with the non-custodial parent. Parents need to understand that when the court creates a visitation schedule, it's a minimum, not a maximum amount of parenting time for the non-custodial parent. In other words, if the parents agree, there's no limit to the amount of time a non-custodial parent can spend with the child.
In rare cases, the court may limit or place restrictions on parenting time between a parent and child, if the judge believes that parenting time will endanger the child's physical, mental, moral, or emotional health. In those cases, the court may deny parenting time, require supervised visits (no overnights), or order that parenting time occurs at a court-approved visitation center. If the parents have a history of abuse, the court can also require parents to exchange the children for parenting time in the court-approved center. (Kan. Stat. Ann. §23-3208.)
It's not uncommon for custody or parenting time orders to lose effectiveness over time. As your child grows up and your schedules change, the current order may no longer suit your or the child's need. In cases where a modification is necessary, the requesting parent can file a formal motion with the court for a review.
Asking the court to change your custody order isn't as simple as filing a motion. Instead, you must also convince the court that, since the last order, there has been a material change of circumstances that make the current order inappropriate. If the court agrees that the current order no longer serves your child's best interest, the judge will evaluate your case using the best interest factors listed above. (Kan. Stat. Ann. § 23-3218.)
If one parent has repeatedly and unreasonably denied the other parent parenting time, the court may consider those actions as a "material change in circumstances" to justify a modification of legal custody, residency, or parenting time. (Kan. Stat. Ann. § 23-3221.)
The Kansas Bar Association has an excellent website containing frequently asked questions and resources available to the public.
You can also find electronic forms and information on child custody on the Kansas Legal Services website.