Know the Laws: Kansas
UPDATED December 2, 2012
This section provides information about custody, residency, and parenting time in Kansas.
In Kansas, legal custody deals with dividing up parenting responsibilities between parents, including decision-making rights and responsibilities on matters of health, education and welfare.* Custody should not be confused with residency, which involves the physical placement of the child (the actual address of the child). Custody and residency are two separate things.
In Kansas, there are two types of custody:
If you are granted joint legal custody of your child, both parents have the right to make the following types of decisions:
Joint legal custody is preferred in Kansas. If a judge decides to grant sole legal custody, it must specifically say in the court record why this decision was made and why it is in the best interests of the child.**
If you are granted sole legal custody, you alone can make these decisions but the other parent can still access information regarding the child unless a judge orders otherwise.***
After legal custody is decided, the court will decide the residency of the child. See What is residency and who can get it? for more information.
A judge may also give you parenting time. Parenting time is when you have the legal right to visit your child. Go to What is parenting time? for more information.
* K.S.A. § 23-2311(c)
** K.S.A. § 23-3206
*** K.S.A. § 23-3206(b)
Residency is a legal order establishing who your child will live with. A judge may order that your child live with you full-time or part-time. In an exceptional case, the court may order "divided residency," which is when one or more children reside with each parent and have parenting time with the other.* Kansas does not have a preference about whether a child will live with one or both parents. A judge will make this decision based on the best interests of the child and on whether the parents can agree on a parenting plan. During the time that your child lives with you, you are responsible for his/her physical care and supervision.
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:
A parenting plan is a written agreement between you and the child’s other parent. 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. Even if you cannot agree on a parenting plan with the other parent, you will still be asked to suggest your own parenting plan.
There are two types of parenting plans: temporary and permanent.
A temporary parenting plan will be created (by you or the judge) for the period of time between when you file for custody and get your final custody order. After you write up a temporary parenting plan, you must file it with the court and give a copy to the other parent or the other parent’s attorney. A temporary parenting plan must address:
Parenting time is the right to visit your child. Even if you are not granted legal custody or residency, you may still get parenting time. This means that you would still be able to visit your child even if your child does not live with you or you are not granted the right to make decisions affecting your child’s life. 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.*
*K.S.A. § 23-3208(a)
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:
Perhaps. In making a decision about whether or not to grant custody, residency, and parenting time, a judge will look at many factors to decide what is in the child's best interest. Some of the many things that a judge must consider are:
If the parent is (or has been) violent or abusive towards your child (even if he has not been convicted of child abuse), this is also something a judge could consider when deciding what is in the child's best interest.
* K.S.A. § 23-3203(g)-(k)
If you are the child’s grandparent or step-parent, you may be given visitation rights.*
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.** Furthermore, if one of the child's parents die, his/her parents (the child's grandparents) can get visitation even if the surviving parent remarries and his/her new spouse subsequently adopts the child.***
If you are a step-parent seeking visitation, you may want to ask an attorney for advice as to what factors a judge may consider. For legal referrals, go to our KS Finding a Lawyer page.
* K.S.A. § 23-3301(a)
** K.S.A. § 23-3301(b)
*** K.S.A. § 23-3301(c)
Generally, you can file for custody in the "home state" of the child. (There are exceptions to the "home state" rule, which are explained in the next section). 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.*
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state you just left (where your child most recently lived for at least six months).* However, there are exceptions, which are explained in the next section.
Here are some examples:
* K.S.A. § 38-1348(a)(1)
Yes. There are exceptions to the "home state" rule.
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.* 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 Kansas Where to Find Help page.
You can also file for temporary emergency custody in a state other than the home state if:
Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. Once you and your child have been living in a new state for 6 consecutive months, then the new state may be able to hear your case. If you have been in the new state for less than 6 months, then you will probably have to ask the judge that is hearing the case to change the jurisdiction of your case. This if often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.
To find legal resources in Kansas, please visit our Kansas Finding a Lawyer page. To find legal resources in a state other Kansas, go to the Where to Find Help tab on the top of this page and choose a new state from the drop down menu on the left side of the page.
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.
In Kansas, you will generally file for custody as part of either:
Maybe. In Kansas, you can ask for temporary custody, residency, and/or parenting time as part of an emergency or temporary “protection from abuse” order.* 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.**
If you get temporary custody as part of a “protection from abuse” order, it is possible that the judge may grant parenting time to the other parent. This means that your child’s other parent may be able to continue visiting your child while you have a “protection from abuse” order against him.
For more information on how to ask for temporary custody as part of your “protection from abuse” order, we recommend that you talk to a lawyer. Please visit our Finding a Lawyer page for legal help in Kansas. If you want to learn more about how to get a “protection from abuse” order, you can also visit our Kansas Protection from Abuse Order page.
* K.S.A. § 60-3106(b), §60-3107(a)(4), §60-3105
** K.S.A. § 60-3106(b)
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. This is a list of some factors that a judge must consider when making a decision - however, these are not the only things the judge will consider. Anything else that is "relevant" should be considered as well:
Maybe. A judge may consider which parent has been taking care of the children since you moved out as an important factor when making a custody decision. Furthermore, after a parent files a petition for divorce, annulment or separate maintenance, the judge can make an ex parte order regarding the legal custody, residency, and parenting time with the minor children that lasts during the court proceeding.* 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 is sworn testimony to support a showing of extraordinary circumstances.** The judge may or may not agree that the domestic violence you experienced is an extraordinary circumstance.
A judge may also consider how long you have been out of the home and that fact that you left your children with someone who is abusive. If you are thinking about leaving your children with an abuser.
* K.S.A. § 60-1607(a)(3)
** K.S.A. § 60-1607(b)
In Kansas, you can file for child custody either as part of a divorce, protection order, or as part of a “parentage” action. A parentage action would be filed when the child was born out of wedlock and the judge would legally establish that your child’s biological father is the child's "legal father."
If you are filing for custody as part of a divorce or a “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 (sworn statement) in court.*
* K.S.A. § 60-2001(b)
It is highly recommended that you get a lawyer if you can, especially if the other parent has one. If you cannot afford a lawyer, you may want to contact Kansas Legal Services at 1-800-723-6953. They may be able to offer you legal advice and /or representation by an attorney at little or no cost. To get an attorney through Kansas Legal Services, you generally must show that you income is below a certain level. Another place to find free or low-cost legal help is on our Kansas Finding a Lawyer page.
Courts generally are unable to help with the process of filing for custody. A lawyer will most likely need to help you through the process. Even if you plan on representing yourself, you should consider having a lawyer review your papers before you file them.
Mediation is a when both parties meet with a neutral third party (called a mediator) for the purposes of reaching an agreement based on decision made by the parties, not by the mediator.* For cases involving child custody, residency (which parent the child will live with), and parenting time (visitation), you can either ask for mediation or the judge may order it if both parents are unable to agree on how you will share child custody, residency, and parenting time and have not yet agreed on a parenting plan (see What is a parenting plan? for more information)
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 the children. If the mediation is successful and you reach an agreement with the other party on child custody, residency and/or a parenting time schedule, your 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.**
* K.S.A. § 23-601
** See K.S.A. § 23-603
Generally, the parents are expected to pay for mediation. A judge will order how much each parent needs to pay for the mediation if both parents have not yet agreed on how to split the costs.*
* K.S.A. § 23-607
If you have a child custody order, and your child’s other parent refuses to follow it, you can file a “petition for the enforcement of a child-custody determination” with the court. You will file this type of petition (or paperwork), for example, when the other parent refuses to allow you the parenting time that a court has already given you.
In addition to filing this petition, you must also have a copy served on your child’s other parent. For more information on serving the petition, we recommend contacting a lawyer. Please see our Finding a Lawyer page for legal help in Kansas.
Once the petition is filed, a judge will order that the other parent show up at a hearing. This hearing will normally take place on the next business day after the other parent is served but if you ask for a later hearing date, the judge may give you one.*
At the hearing, if the judge finds the other parent has violated the custody order by not returning the child to you, s/he can punish the other parent for the violation. It is possible that the judge could order that the child be placed in your immediate custody or, if the other parent says that you abused your child and that is the reason for not returning the child, the judge might order the child into protective custody if s/he believes the allegations of abuse.* K.S.A. 38-1365(c)
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.* 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 is to ask that court to change the order by making the exchange of the children at a child exchange and visitation center.** This may be something to consider if domestic violence has occurred during the pick-ups or drop-offs of the children.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 (legal papers), 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.
* K.S.A. § 23-3218(a)
** K.S.A. § 23-3221
Maybe. If you want to change the child's residence (move in-state) 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. This means that you must ask the post office for a “return receipt” so that you can be sure that it arrived.* If you do not give notice to your child’s other parent, you may possibly be breaking the law and can be punished. You may also have to pay the other parent for his/her attorney's fees.** 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:
If you believe that the other parent was convicted of one of these crimes listed above, we suggest confirming with an attorney that you are not required to give notice. 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:
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.* K.S.A. § 23-3222(a)
Maybe. It is important to know that the court makes separate decisions when awarding support for you and your children, so it is possible that you may only be able to get support for your children, and not for yourself. It is also possible that you can get both.
Support for your child:
As long as paternity is established and your child lives with you, you are entitled to receive support for your child until the child turns 18. Establishing paternity means that your child’s biological father is recognized by the court as the "legal father." If you were not married to the child's father, you can establish paternity by filing “parentage” action in court. When an order is issued, you might be able to get additional support dating back to the birth of the child.* If you were married when the child was born or conceived, paternity is assumed.*1 You can file for child support if you no longer live with your husband or you may also get child support as part of your divorce.
Child support may continue beyond age 18 if:
For more information on how to establish paternity, we recommend contacting a lawyer. Please see our KS Finding a Lawyer page for legal help in your area.
In deciding how much child support to give, some things a judge will look at are:
If you know that you are going to court to either get an order for child support, or enforce one that is already in place, you may be able to get an attorney to represent you for free or at low cost through the Kansas Department of Social and Rehabilitation Services (SRS). To get more information, you can visit their website at www.srskansas.org. On the website, you will be able to find the contact information of an SRS office near you.
To get an attorney through SRS, you will need to fill out an application. If you receive TANF (public assistance), your attorney will be free. If you are not on public assistance, the attorney will charge you a small percentage of the amount that you collect in child support.
Support for yourself
If you are in the process of getting a divorce, a judge may order your former spouse to provide you with continuing financial support, also known as “maintenance.” A judge will decide how much maintenance to give you based on what s/he thinks is fair under the circumstances but the payments will not last longer than 121 months (approximately 10 years).*4
* K.S.A. § 38-1121(f)
*1 K.S.A. § 38-1114(a)(1)
*2 K.S.A. § 38-1121(c)
*3 K.S.A. § 38-1121(g)
*4 K.S.A. § 23-2904