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
1 Kan. 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.