Kansas Legislator K a n s a s Briefing Book L e g i s l a t i v e R e s e a r c h 2015 D e p a r t m e n t D-1 Children and Youth Juvenile Services D-2 Child Custody and Visitation Procedures D-2 Child Custody In Kansas, “legal custody” is defined as “the allocation of parenting and Visitation responsibilities between parents, or any person acting as a parent, Procedures including decision making rights and responsibilities pertaining to matters of child health, education and welfare.” KSA 23-3211. Within that context, Kansas law distinguishes between “residency” and D-3 “parenting time.” Residency refers to the parent with whom the child Child in Need of lives, compared to parenting time, which consists of any time a parent Care Proceedings spends with a child. The term “visitation” is reserved for time nonparents are allowed to spend with a child. D-4 Adoption Initial Determination The standard for awarding custody, residency, parenting time, and visitation is what arrangement is in the “best interests” of the child. A trial judge can determine these issues when a petition is filed for: ● Divorce, annulment, or separate maintenance. KSA 23-2707 (temporary order); KSA 23-3206, KSA 23-3207, and KSA 23- 3208; ● Paternity. KSA 23-2215; ● Protection, pursuant to the Kansas Protection from Abuse Act (KPAA). KSA 60-3107(a)(4) (temporary order); ● Protection, in conjunction with a Child in Need of Care (CINC) proceeding. KSA 38-2243(a) (temporary order); KSA 38- 2253(a)(2)—for more information on CINC proceedings, see D-4; ● Guardianship of a minor. KSA 59-3075; or ● Adoption. KSA 59-2131 (temporary order) and KSA 59-2134. Further, for a court to make a custody determination, it must have authority under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), KSA 23-37,101 to KSA 23-37,405. The first time the question of custody is considered, only a court in the child’s “home state” may make a custody determination. The “home state” is the state where the child lived with a parent, or a person acting as a parent, for at least Lauren Douglass six consecutive months immediately before the beginning of a custody proceeding. For a child younger than six months, it is the state in which Principal Research the child has lived since birth. Temporary absences are included in the Analyst six-month period, and the child does not have to be present in the state 785-296-3181 when the proceeding begins. Exceptions apply when there is no home [email protected] state, there is a “significant connection” to another state, or there is an Kansas Legislative Research Department 2015 Briefing Book emergency, e.g. the child has been abandoned or and to allow for a continuing relationship is in danger of actual or threatened mistreatment between the child and the other parent; or abuse. After a court assumes home state ● Evidence of spousal abuse, either jurisdiction, other states must recognize any emotional or physical; orders it issues. ● The ability of the parties to communicate, cooperate, and manage parental duties; Legal custody can be either joint, meaning the ● The school activity schedule of the child; parties have equal rights, or sole, when the court ● The work schedule of the parties; finds specific reasons why joint legal custody is not ● The location of the parties’ residences in the best interests of the child. KSA 23-3206. After and places of employment; making that determination the court will determine ● The location of the child’s school; residency, parenting time, and visitation. ● Whether a parent or person residing with a parent is subject to the registration Residency may be awarded to one or both requirements of the Kansas Offender parents, or, if the child is a child in need of care Registration Act, or any similar act; or and a court has determined neither parent is fit, ● Whether a parent or person residing with to a third party (third parties are addressed in a a parent has been convicted of child later section). In determining residency, KSA 23- abuse. 3207 requires parents to prepare either an agreed parenting plan or, if there is a dispute, proposed Though not required, a court may appoint or parenting plans for the court to consider. For more authorize a lawyer or guardian ad litem, especially information on parenting plans, see KSA 23-3211 in contested cases, to ensure a child’s interests to KSA 23-3214. are being represented. Guardians ad litem are regulated by Kansas Supreme Court Rules. They Based on the principle that fit parents act in the serve as an advocate for the best interests of the best interests of their children, an agreed parenting child and present cases in the same manner as plan is presumed to be in a child’s best interests. any other attorney representing a client. Absent an agreement, however, or if the court finds specific reasons why the parenting plan is Modification not in the best interests of the child, it will consider all relevant factors, including those outlined in KSA KSA 23-3218 provides that subject to the 23-3203, to make a determination: provisions of the UCCJEA, courts can modify custody, residency, visitation, and parenting time ● Each parent’s role and involvement orders when a material change of circumstances with the minor child before and after is shown. Pursuant to KSA 23-37,202, a state separation; that previously exercised jurisdiction will have ● The desires of a child of sufficient age continuing authority over subsequent motions until and maturity and the child’s parents as to a court of that state determines that the child, the custody or residency; child’s parents, and any person acting as a parent ● The age and emotional and physical either: needs of the child; ● The interaction and interrelationship of ● No longer have a significant connection the child with parents, siblings and any with that state and substantial evidence other person who may significantly affect is no longer available in that state the child’s best interests; concerning the child’s care, protection, ● The child’s adjustment to the child’s training, and personal relationships; or home, school, and community; ● A court of that state or a court of another ● The willingness and ability of each parent state determines that the child, the child’s to respect and appreciate the bond parents, and any person acting as a parent between the child and the other parent do not presently reside in that state. 2 D-2 Child Custody and Visitation Procedures 2015 Briefing Book Kansas Legislative Research Department While a state exercises continuing jurisdiction, is a severity level 10, person felony. Subsection no other state may modify the order. If the state (b) lists certain circumstances in which the crime that made the original determination loses this of interference with parental custody will be continuing jurisdiction, another state can modify considered “aggravated,” including hiring someone an order only if it satisfies the “home state” to commit the crime of interference with parental requirements outlined above. custody; or the commission of interference with parental custody, by a person who: KSA 23-3219(a) provides that to modify a final child custody order, the party filing the motion must list, ● Has previously been convicted of the either in the motion or in an accompanying affidavit, crime; all known factual allegations that constitute the ● Commits the crime for hire; basis for the change of custody. If the court finds ● Takes the child outside the state without that the motion establishes a prima facie case, the consent of either the person having the facts of the situation will be considered to custody or the court; determine whether the order should be modified. ● After lawfully taking the child outside the Otherwise, the court must deny the motion. state while exercising visitation rights or parenting time, refuses to return the child KSA 23-3219(b) speaks to the requirements at the expiration of that time; for modification of custody orders in alleged ● At the expiration of the exercise of any emergency situations. First, if the nonmoving party visitation rights or parenting time outside has an attorney, the court must attempt to have the the state, refuses to return or impedes the attorney present before taking up the matter. Next, return of the child; or the court is required to set the matter for review ● Detains or conceals the child in an hearing as soon as possible after issuance of the unknown place, whether inside or outside ex parte order, but within 15 days after issuance. the state. Third, the court must obtain personal service on the nonmoving party of the order and the review This crime is a severity level 7, person felony. hearing. Finally, it provides that the court cannot modify the order without sworn testimony to support These statutes highlight the fact that if a a showing of the alleged emergency. Similarly, noncustodial parent believes his or her child KSA 23-3218 states that no ex parte order can needs protection from the custodial parent, he or change residency from a parent exercising sole de she must take action under the Kansas Protection facto residency of a child to the other parent unless from Abuse Act (KPAA), KSA 60-3101 to KSA 60- there is sworn testimony to support a showing of 3111. The KPAA allows a parent of a minor child extraordinary circumstances. to seek relief under the Act on behalf of the minor child by “filing a verified petition with any district Custodial Interference and the Kansas judge or with the clerk of the court alleging abuse Protection from Abuse Act by another intimate partner or household member.” The court must hold a hearing within 21 days of KSA 21-5409 outlines the crimes of “interference the petition’s filing.