Like many states, Kansas has done away with the “tender years doctrine” that once assumed mothers should always have custody, especially of babies and younger children. The state’s legislative code now specifically states that courts will not consider a parent’s gender when determining custody in a divorce. Technically, both mothers and fathers enter into custody disputes on equal footing.
Kansas courts prefer to order joint legal custody whenever possible, so divorced parents usually have equal rights to make major decisions regarding their children. Both parents have equal access to school records and medical records. Both have an equal authoritarian role in their children’s lives. Even when a father’s children don’t live with him full-time, he usually maintains this right.
Physical custody refers to which parent the children live with most of the time. When children live with each parent on a roughly 50/50 basis, this is called "shared physical custody" in Kansas. The term "joint custody" pertains only to legal custody. When parents do not share physical custody, one is the residential parent, and the other is the non-residential parent. The non-residential parent has parenting time, an updated term for visitation. When a father is the non-custodial parent, Kansas law makes it clear that he has a protected right to time with his child. Section 60-1616(e) of the state’s legislative code states that if the custodial parent interferes with the non-custodial parent’s visitation time repeatedly and unreasonably, this constitutes a change of circumstance that allows a judge to change residential custody.
Sole custody is not a common arrangement in Kansas. This term translates to one parent having sole legal custody, which the state prefers not to award. Additionally, the children live full-time with the parent who has sole legal custody, so she has primary residential custody as well. Kansas courts usually award sole custody only when one parent is literally unable to contribute to decision-making, such as if he is mentally incompetent, or his judgment might be unsound or detrimental to his child, such as if he has been convicted of a serious crime and is incarcerated. Most fathers don’t fall into these categories.
Factors Determining Custody
Kansas courts base custody decisions on the best interests of the children. Judges choose the home where they believe the children are most likely to thrive, whether that's the father's home or the mother's. Several factors contribute to a child's best interests. Courts look to the parent who is most likely to foster continued and healthy contact between his child and his ex. If this is the father, and if the mother has a history of trying to alienate the couple’s children from him, this can work against her in a final custody decision. Kansas will also take a child’s wishes into consideration, but the law doesn’t force a youngster to take the stand in a divorce trial to make his feelings known. Generally, your child meets with the judge in his office. Because courts don’t like to force children to move out of their homes away from their friends and out of their school district, the parent who remains in the marital home often has an advantage when the court decides which parent gets residential custody.
- Jupiterimages/BananaStock/Getty Images