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