How Does a Judge Determine Child Custody in Kansas?

From our in-depth experience in family law issues at the Salina, Kansas, law firm of Hampton & Royce, L.C., we know that addressing all the legal and practical issues relating to child custody can be challenging. Sometimes, parents simply cannot agree on custody terms. If that happens, the custody matter ends up in court, and a judge determines custody based on specific factors.

Child Custody Law in Kansas

Specific laws in the Kansas Family Law Code, contained at KS Stat § 23-3201 through § 23-3222, establish the legal rules governing child custody matters in the state. When a custody case goes to court, the judge applies those rules, interpreting them as necessary.

Best Interests of the Child Govern Custody Decisions By a Court

The most important rule appears in § 23-3201. It states quite simply:

The court shall determine custody or residency of a child in accordance with the best interests of the child.

The sections of the statute that follow explain a number of rules and factors used to determine what is in the best interests of the child in a specific case.

Of critical importance, the court cannot consider either parent to have a vested interest in the custody of a child over the other parent, regardless of the age of the child. The law specifically provides that no presumption exists that it is in the best interests of any infant or young child to award custody to the mother.

In other words, when parents ask a Kansas court to determine custody of a child, the mother and father are on equal footing. However, the law does create rebuttable presumptions about what is in the child’s best interests in limited circumstances, including situations involving registered sex offenders and individuals convicted of child abuse.

Types of Child Custody in Kansas

Kansas law provides for two different types of child custody decisions by a court: legal custody and residential arrangements. The court makes a separate determination for each issue.

Legal custody refers to the authority to make decisions that relate to the child. In deciding legal custody, the court may order joint legal custody, which gives the parents equal rights to make decisions relating to the child. Alternatively, the judge may award sole legal custody to one parent.

The preferred type of legal custody is joint legal custody. To award sole legal custody to a parent, the judge must find that it is not in the child’s best interests for both parents to have equal rights in making decisions about the child. The court record must include specific findings of fact supporting the decision to award sole legal custody.

After the court determines legal custody, the judge decides residential arrangements, also sometimes referred to informally as physical custody. Based on factors set out in the statute, the court has several options for residential arrangement orders:

• Residency: The child resides with one or both parents based on what is in the child’s best interests.
• Divided residency: One or more children reside with each parent and have parenting time with the other parent. The law specifically says that this type of residential arrangement is appropriate only in exceptional cases.
• Nonparental custody: If the court makes certain factual findings, the judge may award temporary physical custody to a person other than one of the parents.

Factors in Determining Custody and Residential Arrangements

A section of the statute, KS Stat § 23-3203, lists specific considerations for the court to evaluate in making decisions relating to child custody, residential arrangements, and parenting time. Importantly, the law states that “the court shall consider all relevant factors, including, but not limited to” the enumerated factors, which include:

• The child’s age and physical and emotional needs
• The desires of the child about custody and residency, if the child is of “sufficient age and maturity”
• Each parent’s involvement and role with a minor child both before and after separation
• The child’s interaction and relationship with the parents, siblings, and other individuals who may significantly affect the best interests of the child
• The child’s adjustment to his or her home, community, and school
• Location of the child’s school and the parents’ residences and work places, as well as the parents’ work schedules
• Ability and willingness of each parent to respect the child’s relationship with the other parent and permit an ongoing relationship between the child and other parent
• Ability of the parents to communicate and work together in managing parental responsibilities
• Evidence of physical or emotional spousal abuse
• Whether either parent is a registered sex offender in any state or under federal or military law or has a conviction for child abuse in Kansas
• Whether either parent lives with a person who is a registered sex offender or has a conviction for child abuse in Kansas

Based on these statutory provisions, Kansas courts have broad discretion in making determinations relating to custody of a child following separation or divorce. In each case, the judge bases the decision on the evidence provided by the parties during the case.

However, the most important factor that the Court relies on is the “ability and willingness of each parent to respect the child’s relationship with the other parent and permit an ongoing relationship between the child and other parent.” Courts are not impressed by a parent who attempts to keep a child away from the other parent or who speaks in negative terms to a child about the other parent or the other side of the family. Attempting to negatively influence a child against the other parent can have severe consequences, including a loss of parenting time to a loss of residency.

Talk With Our Experienced Salina, Kansas Family Law Attorneys

If you face any issue involving child custody — or if you need assistance with any type of domestic or family law issue — our trusted Salina, Kansas domestic and family law attorneys at Hampton & Royce, L.C. are here to help. For parents or other attorneys interested in mediation services for family law issues, we also have the experience and expertise to facilitate resolution of domestic matters privately.

We serve clients throughout the State of Kansas. Contact us to schedule a consultation.