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Kansas and Missouri Child Custody - Parenting Time

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Child Custody & Parenting Time Overview

In Kansas and Missouri, the courts will determine legal custody (i.e. joint or sole), residency (i.e. a child’s primary residence), and parenting time (referred to physical custody in Missouri) for a child in accordance with the best interest of the child. The best interest of the child standard provides a court with wide discretion to evaluate the specific facts of each case and consider many factors to make the determination. Although an agreement between the parents regarding the custody, residency, and parenting time of a child is presumed to be in the child’s best interest and is usually adopted by the court, a court may make orders to the contrary if the court makes specific findings that the parents’ agreement is not in the child’s best interest. The public policy of Kansas and Missouri generally provides that it is in a child’s best interest to have frequent, continuing, and meaningful contact with both parents and for both parents to participate in decisions affecting the child’s health, education, and welfare. Further, in Kansas and Missouri, no preference is given to either parent in the awarding of custody or parenting time simply because of that parent’s age, sex, or financial status, or because of the age or sex of the child.

Factors considered to determine legal custody, residency, and parenting time of a child

In Kansas, the courts will consider the following non-exclusive list of factors to determine the issue of legal custody, residency, and parenting time of a child: (K.S.A. § 23-3203)
  1. Each parent’s role and involvement with the minor child before and after separation;
  2. the desires of the child’s parents as to custody or residency;
  3. the desires of a child of sufficient age and maturity as to the child’s custody or residency;
  4. the age of the child;
  5. the emotional and physical needs of the child;
  6. the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
  7. the child’s adjustment to the child’s home, school and community;
  8. 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;
  9. evidence of domestic abuse, including, but not limited to: (A) A pattern or history of physically or emotionally abusive behavior or threat thereof used by one person to gain or maintain domination and control over an intimate partner or household member; or (B) an act of domestic violence, stalking or sexual assault;
  10. the ability of the parties to communicate, cooperate and manage parental duties;
  11. the school activity schedule of the child;
  12. the work schedule of the parties;
  13. the location of the parties’ residences and places of employment;
  14. the location of the child’s school;
  15. 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;
  16. whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 21-5602, and amendments thereto;
  17. 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
  18. whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 21-5602, and amendments thereto.
In Missouri, the courts will consider the following non-exclusive list of factors to determine the issue of legal custody, residency, and parenting time of a child: (Mo. Ann. Stat. § 452.375)
  1. The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
  2. 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;
  3. The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
  4. parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
  5. The child’s adjustment to the child’s home, school, and community;
  6. 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 as defined in section 455.010 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;
  7. The intention of either parent to relocate the principal residence of the child; and
  8. The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.

Legal Custody — Joint vs. Sole

Legal custody refers to the allocation of parenting responsibilities, including decision making rights and responsibilities pertaining to matters of the child’s health, education, and welfare. When joint legal custody is awarded to the parents, it means that the parents share the decision-making rights, responsibilities, and authority relating to the child’s health, education, and welfare and that the parents must consult with each other regarding the same. When sole legal custody is awarded to one parent, it means that the parent with sole legal custody has the primary right to decide matters of the child’s health, education, and welfare. However, the parent with sole legal custody may not deprive the other of access to information regarding the child unless the court orders otherwise. In Kansas and Missouri, the award of joint legal custody is preferred.

Custody Agreements and Parenting Plan

Most contested custody and parenting time cases typically end with an agreed resolution reached outside of the courtroom. A Parenting Plan – which sets forth the determinations of legal custody, residency, parenting time, and parenting rules – may be agreed upon by the parents and proposed to the court for approval or, if the parents cannot reach an agreement, may be ordered by the court in accordance with what the court finds to be in the child’s best interest. Spouses who can agree to a Parenting Plan for their minor child are presumed to have made their agreements with the best interests of their minor child in mind. This is the standard in Kansas and Missouri. Whether the parties submit an agreed Parenting Plan to the Court for approval, or the Court must make a determination of its own after a trial on the matter, the resulting Parenting Plan must serve the best interests of the minor child. A skilled divorce attorney who practices in your jurisdiction will use his or her knowledge of the local rules and the tendencies of the bench to help you navigate the pitfalls associated with resolving difficult issues such as proper residential or physical custody designations, the choice of address for education and mailing purposes, allocation of regular and holiday parenting time to fit your schedule, calculation of parenting time and correlating child support-related adjustments, sharing of minor child tax credits, sharing of out-of-pocket medical and dental expenses not covered by insurance, or whether a right of first refusal will work as a benefit or a hindrance in your specific situation.

Custody Litigation

Unfortunately, not all parents agree on custody of their children or how much parenting time each parent should have with their children. If custody is a contested issue, both parties must first attend mediation and attempt to amicably resolve their differences before bringing the dispute in front of the court for determination. In many cases there are larger concerns than disagreement, such as safety concerns with a parent or a family member. A situation such as this could require third party involvement prior to trial. Many times, the court needs additional information to make a determination. In most cases involving minor children, the court will need to enter orders to govern temporary parenting time or support during the pendency of the action and until the case is resolved.

Mediation

Mediation is required in all divorce cases where custody or parenting time is disputed. The parents are required to first mediate before bringing their cause of action before the Court. In Kansas, parties can mediate through Court services or by using a mediator who has been preapproved by the Court to mediate custody issues. In Johnson County, mediation with Court services costs $150 ($75 per parent). In Missouri, mediation is typically handled by another private practice attorney who the parties retain by agreement for an hourly fee which is shared equally by the parties.

Guardian Ad Litem

A Guardian Ad Litem (“GAL”) is a private practice attorney who is appointed to represent the minor child. The role of the GAL is to make an investigation into the best interests of the child and make recommendations to the court regarding the same. A GAL assists the court in its determination of the child’s best interests and acts as the court’s “boots on the ground” appendage collecting evidence and information and packaging the same into a final recommendation regarding custody and parenting time. A GAL may be necessary in your case, but it’s important for every family law client to carefully weigh his or her options. For example, the appointment of a GAL could be cost prohibitive considering the additional retainer and hourly billing required for the GAL’s involvement. In many cases, the party who requests the GAL initially pays the retainer fee to have the GAL appointed. For cases with relatively simple or straight forward custody issues, the appointment of a GAL is likely unnecessary if you have the right divorce attorney representing you.

Custody Evaluation

The Court can also order a custody evaluation to be performed by an independent agency or by social work professionals employed by the court services division in your county. This is typically a somewhat less expensive option as opposed to a GAL, but the evaluation could take 8-12 weeks to complete and the evaluation may not include the level of detail or hands on approach needed to provide the court with a clear and accurate picture of the child’s best interests. Each case is different, so it is important to have an experienced divorce attorney help you make the best decision for your family.

Co-Parent Counseling and Therapy

Temporary orders for co-parent counseling or family therapy are common when interfamily relationships are the focus, often in combination with a GAL or custody evaluation. The dedicated and knowledgeable attorneys at Fairbanks DeMarco can help you find the right tool for your case.

Supervised Parenting Time/Exchanges

If safety is a concern, the court has the power to restrict a parents’ access to a child with orders for supervised parenting time or supervised exchanges. There are a number of providers who offer a range of supervision services from supervision of child exchanges in high conflict divorce cases to supervised parenting time at a court approved facility under the watchful eye of a licensed social worker. There are even a few providers who offer supervised parenting time on location or at public places such as parks, malls or restaurants.

Modification

Final orders for child custody, residency, and parenting time may be modified by the court if there has been a material change of circumstances that requires modification of the existing orders to serve the best interests of the child. The party seeking the modification bears the burden of proof. Further, many courts, such as the Johnson County District Court, requires parties to attend mediation before the court will hear a motion to modify child custody, residency, or parenting time.

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