This section provides information about custody, residency, and parenting time in Kansas. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
Basic information and definitions
What is custody?
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.1 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:
- Joint legal custody and
- Sole legal custody.
If you are granted joint legal custody of your child, both parents have the right to make the following types of decisions:
- where your child goes to school
- whether your child gets a particular type of medical care
- what kind of religious training your child receives.
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.2
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.3
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.
1 K.S.A. § 23-2311(c)
2 K.S.A. § 23-3206
3 K.S.A. § 23-3206(b)
What is residency and who can get it?
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.1 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:
- the child is likely to be harmed if not immediately removed from the home; or
- 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;
- reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child's home or 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.2
1 K.S.A. § 23-3207(a),(b)
2 K.S.A. § 23-3207(c)
What is a parenting plan?
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:
- 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;
- 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 The judge will most likely decide on a temporary parenting plan based on what is in the best interests of your child.
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 arrangment 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.
We recommend contacting a lawyer about what information you should include in a permanent parenting plan. Please see KS Finding a Lawyer for legal help in your area.
1 K.S.A § 23-3212(b)
2 K.S.A § 23-3212(c),(d)
3 K.S.A. § 23-3202
4 K.S.A. § 23-3213(b)
What is parenting time?
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.1
1K.S.A. § 23-3208(a)
Who can get custody or visitation
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
- The right to residency (to 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. See Can I get financial support for my children and myself? for more information.
Can a parent who committed abuse get custody, residency, and/or parenting time?
Perhaps. In making a decision about whether or not to grant legal 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 things that a judge must consider are:
"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;
- a conviction for child abuse by the abuser or by someone with whom s/he lives; and
- whether the parent is a registered sex offender or is living with someone who is a registered sex offender.1
If the parent is (or has been) violent or abusive towards your child (even if s/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.
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 K.S.A. § 23-3203(a)(9),(15)-(18)
2 K.S.A. § 23-3203(b)
I am the child's family member. Can I get vistitation?
If you are the child’s grandparent or step-parent, you may be given visitation rights.1
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 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.3
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.
1 K.S.A. § 23-3301(a)
2 K.S.A. § 23-3301(b)
3 K.S.A. § 23-3301(c)
Can I file for custody in Kansas?
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.1
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
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).1 However, there are exceptions, which are explained in the next section.
Here are some examples:
- My children lived in Alabama their whole lives. We just moved to Kansas a few weeks ago. In my case, Alabama is my child’s “home state.” If I want to file for custody right now, I will probably need to file in Alabama.
- My children lived in Alabama until we moved to Kansas 6 months ago. Because the children have lived in Kansas for 6 months, Kansas is their “home state.” I will likely need to file for custody in Kansas.
- My children lived in Kansas until they left to live with their father in Alabama 2 months ago. Because they haven’t lived in Alabama for 6 months yet, their home state is still Kansas. If I want to file for custody, I can mostly likely file in Kansas.
1 K.S.A. § 38-1348(a)(1)
Are there exceptions to the "home state" rule?
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.1 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 either the child, a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse.2
1 See K.S.A § 38-1348
2 K.S.A. § 38-1351(a)
Can I change the state where my case is being heard?
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 KS Finding a Lawyer page. To find legal resources in a state other Kansas, go to the Places that 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.
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.
The custody process
What are the steps for filing for custody?
In Kansas, you will generally file for custody as part of either:
- A divorce, or
- A “parentage” action (where you are asking the court to recognize your child’s biological father as the legal father).
When filing for child custody, you must always give notice to the other parent. To give notice, you will need to have a copy of the custody papers that you have filed with the court delivered to the child’s other parent and/or possibly to his/her attorney if there is an on-going court case already.
Some general pieces of information that you will likely have to submit to a judge when you file for child custody are:
- Your child’s current address, the places where your child has lived during the last five years, and the names and present addresses of who the child lived with during the last five years;
- If you have participated in or filed a custody and/or visitation case for the child in the past, tell what court it was in, the case number, and the date of the judge's decision;
- If there are any other proceedings, such as a “protection from abuse” case, that could affect your child custody case, tell what court it was in, the case number, and the type of case it is;
- If you know of any person(s) (who is not a party to the case) who has physical custody of the child or claims rights of legal custody, physical custody or visitation, give those persons' names and addresses.1
Note: You have the right to ask that any identifying information that you have submitted (such as the child's address) be kept confidential if you are worried about the health or safety of yourself or your child. The information has to be sealed and can only be made public if, after holding a hearing, a judge decides that it is best to reveal it.1
1 K.S.A. § 38-1356
Can I get temporary custody if I have a protection from abuse order against the other parent?
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.1 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.2
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/her.
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 KS 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 Protection from Abuse Orders page.
1 K.S.A. §§ 60-3106(b); 60-3107(a)(4); 60-3105
2 K.S.A. § 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. 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:
- 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);
- 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 spousal 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; and
- If a parent has been convicted of child abuse or is living with someone who has been.1
1 K.S.A. § 23-3203(a)
If I have moved out of the home and left the children with the abuser, will this hurt my chances of gaining custody?
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.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 is sworn testimony to support a showing of extraordinary circumstances.2 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.
1 K.S.A. § 60-1607(a)(3)
2 K.S.A. § 60-1607(b)
How much does it cost to file for custody?
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.1
1 K.S.A. § 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. 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 KS 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.
What is mediation and how does it affect me?
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.1 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.2
1 K.S.A. § 23-601
2 See K.S.A. § 23-603
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 if both parents have not yet agreed on how to split the costs.1
1 K.S.A. § 23-607
After an order is in place
Once I have a custody order what can I do to enforce it?
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.1
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.
1 K.S.A. 38-1365(c)
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 is to ask that court to change the order by making the exchange of the children at a child exchange and visitation center.2 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.
1 K.S.A. § 23-3218(a)
2 K.S.A. § 23-3221
If there is a custody order in place, can I move or take my kids out of the state?
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.1 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.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 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:
- 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;
- 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 K.S.A. § 23-3222(a)
2 K.S.A. § 23-3222(b)
3 K.S.A. § 23-3222(d)
4 K.S.A. § 23-3222(c)
Can I get financial support for my children and myself?
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.1 If you were married when the child was born or conceived, paternity is assumed.2 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:
- the child is still in high school, the support would continue until the end of the school year when the child turns 18 or 19 or
- the parents agree in writing to support the child after s/he turns 18 and this agreement is approved by the court.3
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:
- The needs of your child including the educational need and ability
- The age of your child
- How much you and child’s other parent earn or are capable of earning and how much money each of you have
- The standards of living and circumstances of the parents
- Whether or not the parents also have to support other people
- Whether or not your child has money or could earn any money
- The value of services contributed by both parents.4
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).5
1 K.S.A. § 38-1121(f)
2 K.S.A. § 38-1114(a)(1)
3 K.S.A. § 38-1121(c)
4 K.S.A. § 38-1121(g)
5 K.S.A. § 23-2904