Kansas Custody

Custody

Basic information and definitions

What is custody? What types of custody are there?

In Kansas, legal custody deals with dividing up parenting responsibilities, including decision-making rights and responsibilities on matters of health, education and welfare.¹ Custody should not be confused with residency, which involves the physical placement of the child. In Kansas, there are two types of legal custody, joint and sole.

With joint legal custody, both parents have the right to make the decisions relating to the child’s health, education, and religious training. With sole legal custody, only one parent has the right to make those decisions but the other parent can still access information regarding the child unless a judge orders otherwise.

Joint legal custody is preferred in Kansas. If a judge decides to grant sole legal custody, s/he must specifically say in the court record why this decision was made and why it is in the best interests of the child.²

¹ Kan. Stat. § 23-3211(c)
² Kan. Stat. § 23-3206

What is residency?

Residency is a legal order establishing who your child will live with, similar to what some states refer to as “physical custody.” A judge will make this decision based on the best interests of the child, considering whether the parents can agree on a parenting plan or not. During the time that your child lives with you, you are responsible for his/her physical care and supervision. In an exceptional case, the court may order “divided residency,” which is when one child lives with one parent and one child lives with the other parent but this is not commonly done.¹

¹ Kan. Stat. § 23-3207(a), (b)

What is parenting time?

Parenting time is the right to have visitation with your child. Even if you are not granted legal custody or residency, you may still get parenting time. The times, dates, and conditions of your parenting time will be included in your parenting plan. A parent is entitled to reasonable parenting time unless the judge finds, after a hearing, that parenting time would seriously endanger the child’s physical, mental, moral or emotional health.¹

¹Kan. Stat. § 23-3208(a)

What is a parenting plan?

A parenting plan is a written agreement between you and the child’s other parent. Both parents will each be asked to suggest their own parenting plan. A parenting plan is always required in Kansas as part of a custody order, so if you and the other parent cannot agree on one, a judge will make one for you.

There are two types of parenting plans: temporary and permanent. Either parent has the right to propose a temporary parenting plan. It will be up to the judge whether to create a temporary parenting plan while the court case is taking place. A temporary parenting plan could address one or more of the following:

temporary legal custody of the child;
temporary residence for the child;
allocation of parental rights and responsibilities regarding the child’s health, education and welfare; and
a schedule for the child’s time with each parent.¹

If your child’s other parent files a temporary parenting plan with the court and you do not agree with it, you can file a response. In your response, you will write up your own temporary parenting plan and have a copy delivered to the other parent or his/her attorney. Courts are required by law to give parents information about how to prepare a parenting plan.²

For more information on how to file a temporary parenting plan, or respond to a plan that the other parent filed, we recommend contacting a lawyer for advice. See our KS Finding a Lawyer page for legal help in your area.

A permanent parenting plan is similar to a temporary parenting plan in many ways. If you and the other parent agree, you can file the permanent parenting plan together and a judge will assume that it is in the best interest of your child. However, the judge can reject an agreed-upon parenting plan if the judge states why the agreed-upon parenting plan is not in the best interests of the child.³ A permanent parenting plan must address:

who has legal custody;
a schedule for the child’s time with each parent;
the procedure by which disputes between the parents should be resolved without need for court intervention; and
if either parent is in the military, it must address the custody and parenting time arrangement if the parent is deployed.⁴

If both parents disagree on a plan or if due to domestic violence, you are unable to make decisions together, you can file two separate plans with the court. When you file two separate plans, you will need to have a copy of your plan delivered to the other’s parent or to his/her attorney. A judge will take these two plans into account when deciding on a final parenting plan.

¹ Kan. Stat. § 23-3212(a), (b), (e)
² Kan. Stat. § 23-3212(c), (d)
³ Kan. Stat. § 23-3202
⁴ Kan. Stat. § 23-3213(b)

What is mediation?

Mediation is a when both parties meet with a neutral third party (mediator) who tries to help the parents come to an agreement. The terms of the agreement would be made by the parties, not by the mediator.¹ For cases involving child custody, residency, and parenting time, you can either ask for mediation or the judge may order it if both parents are unable to agree.

A judge may decide not to send you to mediation if there has been a history of child abuse or domestic violence, but it is still possible.

If a judge orders mediation for your child custody case, it will take place before your custody hearing in court. During the mediation, the mediator might decide to meet with your child. If the mediation is successful and you reach an agreement with the other party, the mediator will put the agreement in writing and give it to the judge for approval. If the judge approves the written agreement, s/he will include it in your final custody order.²

¹ Kan. Stat. § 23-3501
² See Kan. Stat. § 23-3503

Who pays for mediation?

Generally, the parents are expected to pay for mediation. A judge will order how much each parent needs to pay for the mediation or both parents can possibly make an agreement on how to split the costs.¹

¹ Kan. Stat. § 23-3506

What are some pros and cons of getting a custody order?

There are many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.

However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:

the right to make decisions about your child; and
the right to residency have your child live with you.

Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. We recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the Finding a Lawyer page.

Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support.

Should I start a court case to ask for supervised visits?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to KS Finding a Lawyer to seek out legal advice.

Who can get custody or visitation

Who can get residency of a child?

Usually, one or both of the parents will have residency of the child. However, if the judge decides that neither parent is fit to have residency, the judge can order that temporary residency be given to a grandparent, aunt, uncle, adult sibling, or another person or agency if:

any of the following are true:
- the child is likely to be harmed if not immediately removed from the home;
- allowing the child to remain in the home is contrary to the welfare of the child; or
- immediate placement of the child is in the best interest of the child; and
either:
1. reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home; or
2. an emergency exists which threatens the safety of the child.²

In making a residency order to a non-parent, the judge should give preference first to a relative of the child by blood, marriage or adoption; second preference is to another person who the child has close emotional ties with. This type of temporary residency does not terminate (end) your parental rights.¹

¹ Kan. Stat. § 23-3207(c)

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 to decide what is in the child’s best interest, including these factors that relate to abuse:

Did the parent committed “domestic abuse,” which the law defines as:
- 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;
- an act of domestic violence, stalking or sexual assault?
Was the parent criminally convicted of child abuse or is s/he a registered sex offender?
Was someone the parent lives with criminally convicted of child abuse or is s/he a registered sex offender?¹

Note: To help the judge decide legal custody, residency and parenting time, the judge can order a parent to undergo a domestic violence offender assessment and to follow all recommendations made by the program doing the assessment.²

¹ Kan. Stat. § 23-3203(a)(9), (a)(15)-(a)(18)
² Kan. Stat. § 23-3203(b)

I am the child's grandparent or step-parent. Can I get visitation?

If you are the child’s grandparent or step-parent, you may be given visitation rights.¹ The law does not elaborate on what factors will be considered when deciding whether to grant a step-parent visitation. The law does explain, however, that grandparents may get reasonable visitation if the judge believes that a substantial relationship between the child and the grandparent has been established and the visitation rights would be in the child’s best interests.² If the grandparent’s child dies, that doesn’t affect the grandparent’s right to seek visitation. The grandparent can get visitation even if the surviving parent remarries and his/her new spouse adopts the child.³

¹ Kan. Stat. § 23-3301(a)
² Kan. Stat. § 23-3301(b)
³ Kan. Stat. § 23-3301(c)

If I move out of the marital home but leave my children behind, how could this affect my chances of gaining custody?

If after you leave the marital home, the other parent files a petition for divorce, 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.¹ It is important to note that the judge is not supposed to issue an ex parte order that changes the residency of the child from the parent who has had, in effect, sole residency of the child unless there are “extraordinary circumstances.”² So, in order to get a temporary ex parte order for custody, you may want to get help from a lawyer to be able 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.

¹ Kan. Stat. § 23-2707(a)(3)
² Kan. Stat. § 23-2707(b)

The custody process

Can I file for custody in Kansas?

You would usually file for custody in the “home state” of the child. Generally, Kansas would qualify as your 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 your child is less than six months old, then your child’s home state is the state where s/he has lived since birth. Leaving the state for a short period of time does not change your child’s home state.

You may also start a custody case in a Kansas court if Kansas was your child’s “home state” in the six months before going to court and at least one parent or a “person acting as a parent” still lives in Kansas even if your child does not.¹

There are exceptions to the “home state” rule though. In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.” Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state hear the case.² This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see our KS Places that Help page.

You can also file for temporary emergency custody in a state other than the home state if:

the child is present in the state; and
the child 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.³

¹ Kan. Stat. § 23-37,201(a)(1)
² See Kan. Stat. § 23-37,201
³ Kan. Stat. § 23-37,204(a)

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 at the same time. The judge can approve a temporary parenting plan that includes one or more of the following:

who gets temporary legal custody of the child;
who gets temporary residence for the child;
allocation of parental rights and responsibilities regarding matters pertaining to the child’s health, education and welfare; and
a schedule for the child’s time with each parent, when appropriate.¹

You can also ask for temporary custody, residency, and/or parenting time as part of an emergency or temporary protection from abuse order.² However, the judge will not change an existing order of legal custody, residency, visitation or parenting time unless there is sworn testimony at a hearing that convinces a judge that there is a good cause or reason to do so.³

¹Kan. Stat. § 23-3212(b), (c)
² Kan. Stat. §§ 60-3106(b); 60-3107(a)(4); 60-3105
³ Kan. Stat. § 60-3106(b)

How will a judge make a decision about legal custody, residency, and parenting time?

A judge will make a custody, residency, or parenting time order based on what s/he thinks is in the best interest of the child. The judge must consider the following factors:

each parent’s role and involvement with the minor child before and after separation of the parents;
what type of custody and residency the child wants, if the child is of sufficient age and maturity to offer an opinion;
what type of custody and residency the child’s parents want;
the age of the child;
the emotional and physical needs of the child;
the relationship that the child has with each parent, sibling, and any other person who may significantly affect the child’s best interests;
how the child has adjusted to his/her home, school and community;
whether each parent is willing and able to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between them;
evidence of domestic abuse, either emotional or physical;
the ability of the parties to communicate, cooperate, and manage parental duties;
the school activity schedule of the child;
the work schedule of the parties;
the location of the child’s school;
the location of the parties’ homes and places of employment;
if a parent is a registered sex offender or is living with someone who is;
if a parent has been convicted of child abuse or is living with someone who has been; and
any other relevant factor.¹

¹ Kan. Stat. § 23-3203(a)

Is there a fee to file for custody?

You can file for child custody as part of a divorce, protection order, or “parentage” action. A parentage action would be filed if your child was born out of wedlock and you or the other parent are seeking to legally establish who the child’s father is.

If you are filing for custody as part of a divorce or parentage action, there will be a fee. You will need to contact the clerk of court to find out what it costs to file. However, if you cannot afford to pay the fee, you might be able to qualify for a waiver of the fee by filling out a poverty affidavit in court.¹

¹ Kan. Stat. § 60-2001(b)

Do I need a lawyer?

It is highly recommended that you get a lawyer if you can, especially if the other parent has one. You can find free or low-cost legal help, as well as the Bar Association’s private attorney referral service, on our KS Finding a Lawyer page.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Can I change the state where my case is being heard?

For information on trying to transfer a custody case to another state/ changing a final custody order a different state, please see our Changing a final custody order page. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer or legal aid program in your area, please visit the KS Finding a Lawyer page.

After an order is in place

How can an order of custody, residency, or parenting time be changed?

A judge can change an order of custody, residency, or parenting time if you can show that the significant circumstances have changed from when the order was issued.¹ The judge may change the order if s/he believes it is in the best interest of the child. One example of a “change in circumstances” might be when the other parent violates your current custody order or tries to interfere with your rights to see your child.

One thing you can request as part of a modification petition, for example, could be to make the exchange of the children at a child exchange and visitation center if the other parent is being abusive during the exchange of the child.²

To get a custody or residency order changed, you may need to file a “motion to modify a final order pertaining to child custody or residential placement.” In this motion, the will be a place for you to explain how your circumstances have changed. If a judge finds that your request for a change in your custody order is reasonable, s/he should grant a hearing. At the end of this hearing, a judge may decide to either change your custody order or keep it the way that it was.

For more information on filing for change in custody, we recommend contacting a lawyer. Please see our KS Finding a Lawyer page for legal help in your area.

¹ Kan. Stat. § 23-3218(a)
² Kan. Stat. § 23-3221

If there is a custody order in place, can I move or take my kids out of the state?

If you want to change the child’s residence within Kansas or take your child out of Kansas for more than 90 days, you will need to inform your child’s other parent by mail at least 30 days before you plan on moving or leaving the state. The notice that you send to the other parent must be sent by restricted mail, “return receipt.”.¹ If you do not give notice to your child’s other parent, you may possibly be held in civil contempt. You may also have to pay the other parent for his/her attorney’s fees.²

However, if you have legal custody or residency of the child, you are not required to give this type of notice to the other parent when the other parent has been convicted of any of the following crimes in which the child is the victim of such crime:

violent crimes, listed here (chapter 21, article 54);
sex offenses, listed here (chapter 21, article 55);
crimes against children, listed here (chapter 21, article 56);
unlawful disclosure of tax information (21-6104);
unlawful interference with a firefighter (21-6325);
unlawful interference with an emergency medical services attendant (21-6326);
permitting a dangerous animal to be at large (21-6418);
prostitution (21-6419);
promoting prostitution (21-6420);
patronizing a prostitute (21-6421); or
commercial sexual exploitation of a child (21-6422).³

If you believe that the other parent was convicted of one of these crimes listed above, we suggest checking with an attorney to see if there are any other steps that you must take. You can find legal referrals on our KS Finding a Lawyer page.

Note: The other parent can ask the court to change the existing order of custody, residency, child support or parenting time based on your planned move. When deciding whether to change the order, the judge will consider:

how move affects the best interests of the child;
how the move affects the rights of the other parent or anyone else with rights to the child; and
how much more money the move would cost the other parent when seeing the child.⁴

We recommend getting an attorney to help you before you try to file anything. Please see KS Finding a Lawyer page for legal help in your area.

¹ Kan. Stat. § 23-3222(a)
²Kan. Stat. § 23-3222(b)
³ Kan. Stat. § 23-3222(d)
⁴ Kan. Stat. § 23-3222(c)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: Kansas