In Kansas, there are two types of custody: legal custody and physical custody.

Legal Custody:  According to the Johnson County Family Law Guidelines, “Legal Custody” is the right of a person acting as a parent, to make decisions about matters of health, education, and welfare for a child. There is a presumption made by the courts in Kansas that joint legal custody is in the best interests of a minor child. That means both parents have the same amount of rights and responsibilities when it comes to making decisions that affect the child. When the court grants joint legal custody, it presumes that the parties will consult with one another before either makes any major decisions that affect the child. The Guidelines lay out several major issues for parental decision-making as follows: issues concerning the child’s education, health and medical issues (except when an emergency prevents immediate consultation, in which case the other parent is to be notified as soon as reasonably possible), transportation between the parent’s homes, religious training, and any other important matters affecting the child.

It is rare that a court will award sole legal custody to one parent. As there is a presumption that joint legal custody is in the best interests of a child, the party asking for sole legal custody must make an argument and convince the court that he or she having sole legal custody would be in the best interests of the child. Some reasons may be that one parent is incarcerated, a heavy drug user, physically abusive, has put the child in serious harm’s way in the past, etc. There is no set rule used to determine if what one parent has done is enough to take away his or her right to make decisions affecting their child. It is left to the court’s discretion using the “best interests of the child,” test.

Physical Custody/Parenting Time:  Physical custody refers to the amount of time the minor children will spend with each parent. Physical custody of minor children is one of the biggest points of contention lawyers fight over when parties are going through a divorce. Splitting up time with a child that you are used to sharing is always difficult and can lead to roadblocks in the divorce process. In Johnson County, there are guidelines in place that help move the process of deciding physical custody along. There is no right or wrong way to divide physical custody among parents, and again, the court will use the “best interests of the child,” test when determining if a custody schedule is appropriate in each individual case. Some examples of physical custody schedules based on the age of the child include:

  • Infants (Birth to 12 months) – the courts want to see consistent frequent contact through the entire week for shorter periods of time for infants. The Johnson County Guidelines suggest the minimum for one parent’s parenting time with an infant: two blocks of no less than three-hours every week and no less than one block of eight-hours every weekend.

  • Toddlers (12 months to 36 months) – the courts want to see routine contact with both parents and ideally, neither parent should go for more than three days without seeing the child. The Guidelines suggest the minimum for one parent’s parenting time with a toddler: two blocks of no less than three-hours every week and no less than one block of eight-hours every weekend with overnight visits when appropriate.

  • Older Children (37 months and up) – The Guidelines suggest the minimum for one parent’s parenting time with older children: Alternating weekends beginning after school/daycare or at 5:00 p.m. on Friday and continuing until 8:00 p.m. on Sunday or until school/daycare or 8:00 a.m. on Monday and at least one evening each week from after school/daycare or 5:00 p.m. until either 8:00 p.m. that day, or 8:00 a.m. the following morning.

The parties will also have to make decisions regarding a holiday schedule. The Guidelines suggest a standard schedule, which can be modified by the parties to fit their family. Summer schedules will also need to be made which will lay out how the summer holiday of older children will be split up. Usually, parties will opt for longer uninterrupted parenting time with the non-custodial parent during the summer months.

Whichever parent is designated as the “custodial” parent will have the minor child at all other times not specifically set out to the other parent. The custodial parent’s address will also typically be used for mailing and educational purposes for the child; this can be very important and it can determine where the minor child will attend school.

Determining child custody is a very serious and time consuming matter. Every situation will be different and there is no one-size-fits-all answer to how legal and physical custody will work out in each case. Custody determinations, while always centering around what is in the best interest of the child, have a lot of moving parts and can take time to fully hash out. Sometimes officers of the court, referred to as Guardians Ad Litem can be appointed by the court to help the court determine what is in the best interests of the child. Sometimes custody evaluations or home studies are performed by the courts to help make custody determinations. If you have questions about legal custody, physical custody, or parenting plans, please give our office a call and we can talk about your specific situation.