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)