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.