Child custody issues are probably the most emotionally draining litigation within the family Court. However, it is extremely common to see such actions brought to Court because of the intense ramifications of parenting a child separately. When a Court is asked to resolve a custody dispute, it will normally choose a parent to give the primary residency of the children to and order the non-primary residential parent to pay an order of support each month. When a Court is forced to make the decision, someone will go away extremely upset.
Types of Custody (Legal and Residential)
In a child custody dispute, the Judge will have to make determinations of both legal and residential custody. In terms of legal custody, there are two choices: joint and sole. Joint legal custody means that both parents are fit and proper to be awarded decision making power regarding the children's welfare. If joint legal custody is awarded (as is normally the case), both parents will be ordered to consult with each other when making major decisions involving their children. They will also both have access to their children's vital information (schools, medical, etc.). If sole legal custody is awarded to one parent, that parent is vested by the Court to make decisions regarding health, education, and welfare of the children. This type of custody does not preclude the other parent for being involved with these decision, but the primary responsibility rests with the parent have sole legal custody. Access to their children's vital information is not automatically barred if the other parent has sole legal custody.
In terms of residential custody, there are 4 general forms: sole residential, primary residential, shared residential, and divided/split residential custody. The most common form is primary residential custody.
1) Sole Residential Custody - this is a rare situation utilized often when one parent has virtually abandoned the child. In this situation, one parent will receive all primary powers of decision making and residential placement.
2) Primary Residential Custody - this is the most common form of custody seen when people parent their children separately. This arrangement designates one parent to be the primary custodial parent and the other is awarded specific parenting time. Examples of parenting time can be seen at the Family Law Guidelines links listed at the bottom of this page. Most jurisdictions have not published their guidelines, however you will normally see Courts order parenting time schedules that very closely resemble the published guidelines from Johnson and Shawnee counties. The Non-Primary Residential Parent will be ordered to pay child support to the other parent every month. A child support calculator has been provided at the bottom of this page to help you determine about how much this order will be.
3) Shared Residential Custody - This is a situation that is commonly used, but will never be Court-ordered if the parents do not get along. A shared residential situation involves neither parent being designated the primary custodian, and the parents may be very liberal with exercising parenting time. Usually parents in this arrangement can work well together dividing parenting time and child-related expenses. Expenses are equally divided between the parents. An order of support will issue, however it will be for much lower than with other custodial arrangements. It is used to put the parties on equal financial ground when it comes to caring for their children, since sometimes one parent may have many more resources available to parent than the other.
4) Divided Residential Custody - This is when there are two or more children, and the parties break up the family and have primary residential custody of different children. Courts do not look favorably upon this arrangement, and it is rarely used. It is frequently determined by the Court to not be in the best interest of the children to break sibling bonds by placing them in different households.
There are suggested factors within the statute the Court may consider when making an order of child custody, however this is a non-exclusive list. A Court is required by law to enter an order of custody that is in the best interest of the child (K.S.A. 60-1610(a)(3)). The suggested factors include:
(1) 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;
(2) The desires of the child's parents as to custody or residency;
(3) The desires of the child as to the child's custody or residency;
(4) The interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests;
(5) The child's adjustment to the child's home, school and community;
(6) 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;
(7) Evidence of spousal abuse;
(8) 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;
(9) Whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto;
(10) 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
(11) 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.
If there is an agreement between the parties which includes the appropriate components, a presumption arises that this agreement is in the best interests of the child and it will normally be adopted by the Court. This is why Courts encourage mediation of child custody issues.
A Kansas Court will need to make certain findings before it can assume jurisdiction over a child custody matter. In order for a Court to be sure that a parent is not judge-shopping, a person seeking a Court for custody orders must allege that there is no other Court asserting authority over this child. For example, if your divorce was in Leavenworth County and custody orders arose from that action, you cannot run to Wyandotte County for a modification unless Leavenworth relents its jurisdiction. If your child has not lived within Kansas for at least six months, Kansas may not be the child's home state and a Kansas Court may not wish to assert jurisdiction over the matter.
Emergency orders modifying a final order of custody may be obtained under special circumstances. These are typically sought when a party believes that the child in facing an immediate threat to their welfare, or if there is a reasonable belief that the child might be moved from the state without Court approval. Emergency orders without the opposing party present are difficult to obtain, and the Judge will require sworn testimony establishing a prima facie case that an emergency exists before the ex parte modified order is given (K.S.A. 60-1628).
Change of Custody Orders
When asking the Court to modify a final order of custody, the movant must file a verified motion alleging facts warranting the change. If the Court finds that the allegations set forth in the motion or the accompanying affidavit fail to establish a prima facie case, the Court will deny the motion. If the court finds that the motion establishes a prima facie case, the matter may be tried on factual issues (K.S.A. 60-1628).
The Kansas Legislature has directed the Supreme Court to adopt statewide child support guidelines for the calculation of child support. If you are not the primary custodian of a minor child, the Court is directed to issue an order of support against you. This often includes when children are taken into the custody of the state. The calculation of child support involves an exhaustive list of factors that you can read from the guidelines, but a baseline amount can be derived from the child support calculator found at the bottom of this page. This calculator will only give you a baseline, and you should probably consult an attorney if you want a truly accurate estimate of what should be ordered as support.
Unless there is a special agreement, Child Support will normally end when the child reaches the age of majority. If you're looking for some help from the other parent with sending your child to college, you'd better have a specific agreement drawn up to cover this expense. The Kansas Child Support Guidelines do not provide for it automatically.
Courts will normally order that all payments of support go through the Kansas Payment Center. This is done so there is an accurate record of when payments are made, and for how much. If a parent falls behind in payments the Court may choose to hold that party in contempt of Court, sometimes punishable by serving time in jail. You can track payment information at the Kansas Payment Center website.
Kansas Payment Center
Kansas Child Support Calculator
Kansas Child Support Guidelines
Johnson County Family Law Guidelines
Shawnee County Family Law Guidelines