Custody Questions


What types of custody orders can a judge make?
Joint custody is preferred and implies that both parents will share in making major decisions concerning the child's upbringing. The usual arrangement is for the child to reside primarily with one parent (residential custody) and to spend time with the other parent on some weekends and overnights, extended summer visits and holidays. Joint custody does not pertain to the physical residence of the children. Shared legal custody occurs when the child lives with both parents in equally or nearly equal blocks of time. Because shared legal custody requires parents to be extremely cooperative and is easiest when the parents live in close proximity to each other, many judges are reluctant to order it, but will frequently approve agreed shared physical custody.

Sole custody means that one parent makes all the major decisions regarding the child's upbringing and the child lives with that parent. The other parent may have specified visitation rights. Sole custody occurs when one parent is not involved, i.e., prison, or suffers from mental incapacity.

Divided custody means that one child lives with one parent and another child with the other. Each party has visitation with the child in the custody of the other. It is used in exceptional cases.

Non-parental custody can be granted temporarily if the court believes the parents are unfit or that the child is in need of care and an action will be filed pursuant to the Kansas Code for the Care of Children. Grandparent placement is non-parental custody.

What factors does a judge look at in awarding a parent residential custody of a child? 
The trial judge has broad discretion to award custody according to the child's best interests. The Kansas statute lists the following factors, among others: the child's adjustment to home, school and community; the wishes of the parents and the child; which parent will most cooperate in helping the child maintain a relationship with the other parent; and evidence of spousal abuse. Neither the mother nor the father is preferred because of gender. Each case is reviewed on its own facts according to child's best interests. If the child is a teenager, the judge may be willing to consider the child's wishes as to residence and the child's reasons. There is no specific age when a child gets to decide where they live, but generally, the older the child, the more weight that child's desires are given by the court.

Can the parties agree as to the custody arrangement for their child?
Yes, the parties may agree on the type of custody that fits their circumstances and present their agreement to the judge for approval. Kansas law provides a presumption that a written agreement between the parties concerning custody or residency of their minor child is in the child's best interest. In many counties, mediation, a process later discussed herein, is utilized by the court to facilitate custody agreements.

After a Court determines which parent should have the primary residence of a child, can the
court ever change that?

Yes. The Court retains jurisdiction (keeps the power) to change the primary residence of a child until the child attains the age of majority (18) or graduates from high school, whichever occurs first. In some instances, the court's authority is extended to the child's 19th birthday, or high school graduation. Generally, if the parties remain in the same state, a motion to change primary custody must be filed in the same court where the divorce or paternity was determined.

What reasons would a court need to change the child's primary residence?
The law usually requires a material change of circumstances' before a judge will modify a custody order. Usually the change of circumstances will be something in the residential parent's home that has an adverse impact on the child, such as physical abuse, use of illegal drugs, alcohol abuse or neglect. Seldom will the mere improvement of conditions of the nonresidential parent be sufficient, absent other facts, for a Court to remove a child from a stable situation. Occasionally, the desires of a teenage child can serve as a change of circumstances.


If I do not have primary residential custody, what access will I have with my child?
Visitation, often called "access" is the right of the parent who does not have residential custody to spend time with the child. The Court may order "reasonable" visitation, leaving it to the parties to work out the details, or the judge may order specific times for access to the child. "Reasonable" visitation entitles a parent to see the child at reasonable times under reasonable conditions, after adequate notice.

What happens if the parties cannot work out an agreeable schedule or do not follow a schedule ordered by the Court?
If a divorce or paternity case is still pending, then the parent can ask for a temporary order or for modification of an existing temporary order. If the order is "final", the party must file a motion for specific visitation or to enforce existing rights. The Court may find a party in contempt of court for refusing to comply or can modify the existing order.

In situations where visitation is an issue, the court can order the parties into mediation which is a process by which a neutral person tries to help the parties reach an agreement outside the court. The mediator is a communication facilitator, and has no authority to enter orders or provide recommendations to the court. Mediation is a confidential process in that statements made in mediation may not be used in court. Such confidentiality is designed to promote open communication between the parents to assist in reaching parental agreements.

Can a judge ever prohibit access by a parent?
A judge may restrict, or even prohibit, access if there is evidence that visitation would be extremely harmful to the child, as in instances of child abuse. Sometimes a Court will order that any visitation be supervised by a third party, such as a social worker, relative or court officer. A parent who is prohibited from seeing a child may, at a later time, petition the Court for visitation if conditions improve. A Court may, in extremely rare situations, condition visitation on payment of child support.

Are there any guidelines for visitation?
Parental responsibilities continue to exist whether the parents live together or not. For children to grow up emotionally healthy requires love, understanding and sound guidance from both parents. Children need the opportunity to love and respect both parents.

Courts often give parents the following guidelines:
The residential parent should have the child ready at the mutually agreed time.
The residential parent should encourage and make the child feel good about going to visit the other parent.
The nonresidential parent should pick up and return the child on time unless there is an emergency or the parent has called ahead.
The nonresidential parent should notify the other parent as soon as possible if unable to keep visitation.
The nonresidential parent should make the time spent with the child as pleasant as possible by not questioning the child regarding the former spouse's activities, or making promises that cannot be kept, not discussing the faults of the other parent, or by making extravagant gifts.
Parents should not argue with each other in front of the child.
The nonresidential parent should not visit the child after drinking or taking illegal drugs.
The parent should not visit the child at unreasonable hours or take them to unsafe places.

Can a judge order visitation rights for anyone other than a parent?
Kansas statutes provide that following a divorce, grandparents and step-parents may be granted visitation rights if it is in the best interest of the child. In addition, Kansas law allows grandparents to petition for visitation if they have established a substantial relationship with the child or if their child has died and their grandchild has been adopted by a step-parent. The judge has the discretion to make a visitation order. However, natural grandparents do not have a right to visitation when their grandchildren are adopted by third parties, or when the grandparents' child has had his or her parental rights severed.

If I am denied my visitation rights, can I refuse to pay my child support?
No. Child support and visitation are considered by statute in Kansas to be two entirely separate matters. A parent cannot withhold child support to enforce visitation rights nor can a parent deny visitation to enforce child support. If a parent is being denied visitation, the parent can file a motion with the court, even without a lawyer, to enforce visitation. If visitation is being wrongfully denied, the judge can correct the situation.

Vega Law Offices, LLC   •   Gardner, Kansas Family Law Attorney

510 West Main St. • Ste A • Gardner, KS 66030
Phone: 913-856-7596  •  Fax: 913-440-4676  •

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