Who can get residency of a child?
Usually, one or both of the parents will have residency of the child. However, 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:
- any of the following are true:
- the child is likely to be harmed if not immediately removed from the home;
- 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; and
- 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.1
1 Kan. Stat. § 23-3207(c)
Can a parent who committed abuse get custody, residency, or parenting time?
If the other parent committed abuse, it doesn’t necessarily mean that the parent will not get any rights of legal custody, residency, and parenting time. A judge will consider many factors to decide what is in the child’s best interest, including these factors that relate to abuse:
- Did the parent committed “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?
- Was the parent criminally convicted of child abuse or is s/he a registered sex offender?
- Was someone the parent lives with criminally convicted of child abuse or is s/he a registered sex offender?1
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 Kan. Stat. § 23-3203(a)(9), (a)(15)-(a)(18)
2 Kan. Stat. § 23-3203(b)
I am the child's grandparent or step-parent. Can I get visitation?
If you are the child’s grandparent or step-parent, you may be given visitation rights.1 The law does not elaborate on what factors will be considered when deciding whether to grant a step-parent visitation. The law does explain, however, that 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 If the grandparent’s child dies, that doesn’t affect the grandparent’s right to seek visitation. The grandparent can get visitation even if the surviving parent remarries and his/her new spouse adopts the child.3
1 Kan. Stat. § 23-3301(a)
2 Kan. Stat. § 23-3301(b)
3 Kan. Stat. § 23-3301(c)
If I move out of the marital home but leave my children behind, how could this affect my chances of gaining custody?
If after you leave the marital home, the other parent files a petition for divorce, the judge can issue a temporary ex parte order regarding the legal custody, residency, and parenting time that will be in effect 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 are “extraordinary circumstances.”2 So, in order to get a temporary ex parte order for custody, you may want to get help from a lawyer to be able to convince the judge that there are extraordinary circumstances or that leaving the children for a short time is not the same as the other parent having sole residency.
1 Kan. Stat. § 23-2707(a)(3)
2 Kan. Stat. § 23-2707(b)