The term custody encompasses two types of custody – legal custody and physical custody.
Legal custody refers to the right to be informed and make decisions regarding the key issues involving the health and well-being of you children. For instance, such matters include the education, medical and dental care and treatment, extra-curricular activities, and religious up-bring. The court will usually order joint legal custody except in rare cases involving a genuine concern involving children’s safety or well-being. Very serious concerns regarding child physical or sexual abuse or neglect and drug and alcohol abuse are examples of some issues that if proven to exist may result in the court ordering sole legal custody to one parent.
The second type of custody is physical custody, also referred to as residency. Physical custody refers to the parenting plan and where your children will physically reside. While in the past, Kansas law required one parent to be designated as the residential parent and the other parent to be granted visitation this is no longer the case. In the year 2000, the Kansas legislature modified the custody statute to require only that final orders pertaining to children contain a designation of the legal custodial relationship of the child and a schedule for the child’s time with each parent. Since what is required by statute now is only a designation of a schedule of time that the child spends with each parent, there is no need to designate either parent as the residential parent. Therefore, both parents can be said to have parenting time as opposed to one parent having residential custody and the other parent having visitation.
While Kansas courts have a strong preference for children to spend substantial time with both parents, not all parents are willing to agree to share parenting time. Sometimes the lack of willingness to share parenting time with the other parent is based upon facts and circumstances that would make sharing parenting time difficult or not feasible such as in the following examples:
- The work schedule or work related travel required by one of the parent’s jobs does not permit availability for a more equal time share arrangement.
- There are serious issues of neglect or abuse by one of the parents.
- One parent has disabilities that make it difficult or impossible for that parent to provide adequate care.
- One parent has drug abuse or alcohol dependency issues.
- One parent has left the family home and for a substantial period of time the child has resided primarily with the parent who remained in the home.
- One parent has engaged in proven attempts to alienate the child from the other parent.
- One parent has a record of dangerous felony convictions.
When the types of facts listed above are present in a Kansas child custody dispute, a court may be more inclined to impose a more traditional parenting time arrangement where the child resides primarily with one parent. Where there are serious issues that raise genuine concerns about the fitness of a parent to provide a safe and stable environment for the child during that parent’s time with the child, the court may even require the that parent’s parenting time be supervised (commonly referred to as supervised visitation.) If your child custody case involves complex issues like these, it is important to work with an experienced Kansas child custody attorney who can help you obtain appropriate parenting plan arrangements in the context of these more contentious and critical issues.
Kansas Custody Determinations and the Best Interest of the Child standard
If parents are unable to agree on a parenting plan, the court will develop a parenting plan and designate parenting time based on the “best interest of the child”; and in so doing the court shall consider all relevant factors, including but not limited to those set forth in K.S.A § 60-1610 (a)(3)(b) as follows:
(i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
(ii) the desires of the child’s parents as to custody or residency;
(iii) the desires of the child as to the child’s custody or residency;
(iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
(v) the child’s adjustment to the child’s home, school and community;
(vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent;
(vii) evidence of spousal abuse;
(viii) whether a parent is subject to the registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law;
(ix) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto;
(x) whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; and
(xi) whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto.