How will the Judge decide who gets custody?
The Judge’s decision will be based on the “best interests of the child.”
This means that the Judge can look at essentially anything that affects the mental, physical, and emotional well-being of the child to come to their decision. They are trying to decide what they think will be best for the child. The Judge can look at the residence of each party, their willingness to cooperate with the other party, their relationship with the child, criminal history, evidence of criminal activities, domestic abuse, etc.
Best interests of the Child in Kansas can include, but are not limited to:
- The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
- The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
- Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
- The child's adjustment to the child's home, school, and community;
- The mental and physical health of all individuals involved, including any history of abuse of any individuals involved.
If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law.
- Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
- The intention of either parent to relocate the principal residence of the child; and
- The wishes of a child as to the child's custodian.
What types of custody orders are there?
Either joint or Sole Legal Custody and Residential Custody.
- Legal custody refers to a parent’s access to school records, medical records, ability to make decisions regarding the raising of the minor child, etc.
- Joint Custody means that both parties are equally involved in the decision making.
- Sole Custody means that one party is solely responsible for those decisions.
- Residential Custody refers to where the child lives.
Typically, one party is the primary residential parent and the other party has parenting time or “visitation” as agreed to by the parties. Parents can have shared residential custody where each parent has roughly equal parenting time with the child. This is not as common and only occurs when the situation allows and is in the child’s best interest.
What is Legal Custody?
This term refers to decision-making power for the child. This has nothing to do with parenting time or visitation schedules, only decisions for the child’s general well-being.
Legal custody can be “Sole” or “Joint”. I will describe the differences below.
1. Sole Custody is exactly what it sounds like…ONE parent can be designated to make all routine and major decisions on behalf of the child.
So then it only follows that “Joint” Legal Custody translates to both parents making these types of decisions together, and no one parent has more say so than the other. Absent evidence of abuse or neglect, Courts favors the parents working together to have Joint Legal Custody.
2. “Joint” Legal Custody translates to both parents making these types of decisions together, and no one parent has more say so than the other. Absent evidence of abuse or neglect, Courts favors the parents working together to have Joint Legal Custody.
Major Decisions include but are not limited to:
- What religion will my child practice?
- What pediatrician will my child see?
- What extra-curricular activities will my child participate in?
- How will my child be disciplined?
- What school will my child attend?
- What child-care provider will I use?
Minor/Routine Decisions include but are not limited to:
- What will my child eat for dinner?
- What type of clothing will my child wear?
- What time will my child go to bed?
- What types of chores will my child be responsible for?
It’s important to understand the subtle and not so subtle differences in Sole vs. Joint Legal Custody so you know what to ask for in your initial pleadings and how to respond when answering pleadings you have been served with.
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.