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Who can get residency of a child?
Usually, one or both of the parents will have residency of the child. However, if the judge decides that neither parent is fit to have residency, the judge can order that temporary residency be given to a grandparent, aunt, uncle, adult sibling, or another person or agency if:
- any of the following are true:
- the child is likely to be harmed if not immediately removed from the home;
- allowing the child to remain in the home is contrary to the welfare of the child; or
- immediate placement of the child is in the best interest of the child; and
- either:
- reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home; or
- an emergency exists which threatens the safety of the child.2
In making a residency order to a non-parent, the judge should give preference first to a relative of the child by blood, marriage or adoption; second preference is to another person who the child has close emotional ties with. This type of temporary residency does not terminate (end) your parental rights.1
1 Kan. Stat. § 23-3207(c)
Can a parent who committed abuse get custody, residency, or parenting time?
If the other parent committed abuse, it doesn’t necessarily mean that the parent will not get any rights of legal custody, residency, and parenting time. A judge will consider many factors to decide what is in the child’s best interest, including these factors that relate to abuse:
- Did the parent committed “domestic abuse,” which the law defines as:
- a pattern or history of physically or emotionally abusive behavior, or the threat of either, that the abuser uses to gain or keep control over you;
- an act of domestic violence, stalking or sexual assault?
- Was the parent criminally convicted of child abuse or is s/he a registered sex offender?
- Was someone the parent lives with criminally convicted of child abuse or is s/he a registered sex offender?1
Note: To help the judge decide legal custody, residency and parenting time, the judge can order a parent to undergo a domestic violence offender assessment and to follow all recommendations made by the program doing the assessment.2
1 Kan. Stat. § 23-3203(a)(9), (a)(15)-(a)(18)
2 Kan. Stat. § 23-3203(b)
Can a grandparent, step-parent, or sibling, or other non-parent get visitation?
If you are the child’s grandparent, sibling, step-parent, or other non-parent, you may be able to ask the judge to give you visitation with the child.1 Visitation means the right to spend time with the child who is living with another person, and it may include overnight stays.2 To read about how a judge will decide whether to give you visitation, go to What do I have to prove to get non-parent visitation?
Note: A non-parent cannot bring a case for visitation solely based on being the child’s foster parent.3
1 Kan. Stat. § 23-3306(g)
2 Kan. Stat. § 23-3306(o)
3 Kan. Stat. § 23-3307(c)
What do I have to prove to get non-parent visitation?
If you are the child’s grandparent, sibling, step-parent, or other non-parent, the judge may give you visitation if you can prove all of the following:
- denying you visitation would harm the child;
- you have been a “consistent caretaker” of the child within the past year, or you have a “substantial relationship” with the child; and
- visitation is in the child’s best interest.1
A consistent caretaker is a non-parent who, without expecting to be paid for it:
- lived with the child for at least 12 months, unless the judge believes there is a good reason to accept a shorter period;
- regularly took care of the child;
- made day-to-day decisions for the child, either alone or in cooperation with someone else who has physical custody of the child; and
- established a close relationship with the child, either with the parent’s consent or without any parent being involved who could care for the child.2
A substantial relationship exists between the child and a non-parent if:
- the non-parent is related to the child by blood or law, or formed a relationship with the child without expecting to be paid;
- the child believes there is a significant emotional bond between him/her and the non-parent; and
- the non-parent regularly took care of the child and established a close relationship with the child. If there was a parent actively involved in caring for the child, s/he must have approved of, or agreed to, this relationship.3
1 Kan. Stat. § 23-3308(a)
2 Kan. Stat. § 23-3308(b)
3 Kan. Stat. § 23-3308(c)
What information will I need to include in a petition for non-parent visitation?
You must include all of the following information in your petition for non-parent visitation:
- the visitation you are asking for, known as the “relief” in the petition;
- the length and nature of your relationship with the child, including any periods you lived with the child and what care you provided;
- any agreement you had with the child’s parent about custody, visitation, or any other contact with the child, including a copy of the agreement if it was written down;
- any previous times you tried to get visitation or other contact with the child;
- whether the parent is willing to allow you to have visitation or other contact with the child;
- whether you were paid or expected to be paid for taking care of the child;
- information required to establish the power (jurisdiction) of the court under the Uniform Child Custody Jurisdiction and Enforcement Act;
- the reasons that your visitation would be in the best interests of the child; and
- why denial of your visitation would harm the child, if you are claiming to have a substantial relationship with him/her.1
Note: There is a “rebuttable presumption” that the parent or person acting as a parent will make a decision that is in the best interest of the child if a non-parent asks for visitation. So, the judge will assume that parent have the right to deny non-parent visitation, and the non-parent has the burden of proving why it would be in the best interest of the child for the non-parent to have visitation anyway.5
1 Kan. Stat. § 23-3311(b)
How will a judge make a decision about non-parent visitation?
The judge will consider the following factors when deciding if visitation is in the best interest of the child:
- the relationship between the child and the parent or person acting as a parent;
- the relationship between the child and the non-parent who is asking for visitation;
- past or present behavior by any party in the case or someone the party lives with who could pose a risk to the child;
- the likely effect that non-parent visitation would have on the relationship between the child and the parent or person acting as a parent;
- the factors listed in How will a judge make a decision about legal custody, residency, and parenting time?; and
- anything else that would affect the child’s best interest.1
The judge may also consider the child’s opinion about the non-parental visitation after taking into account the age and maturity of the child.2
However, if the non-parent or anyone living with the non-parent has committed any of the following crimes, the judge will assume visitation is not in the best interest of the child:
- abuse of a child;
- abandonment or aggravated abandonment of a child;
- domestic violence;
- a sex offense; or
- stalking.3
This also applies if the non-parent or anyone living with the non-parent has been required to register as a sex offender, either in Kansas or another state.3
The non-parent could still try to prove that, despite committing a crime or being a registered sex offender, visitation would not endanger the health, safety, or welfare of the child and that it would be in the child’s best interest. However, it might be hard to convince the judge of this.4
Note: There is a “rebuttable presumption” that the parent or person acting as a parent will make a decision that is in the best interest of the child if a non-parent asks for visitation. So, the judge will assume that parent have the right to deny non-parent visitation, and the non-parent has the burden of proving why it would be in the best interest of the child for the non-parent to have visitation anyway.5
1 Kan. Stat. § 23-3315(a)
2 Kan. Stat. § 23-3315(b)
3 Kan. Stat. § 23-3316(a)
4 Kan. Stat. § 23-3316(c)
5 Kan. Stat. § 23-3309
If I move out of the marital home but leave my children behind, how could this affect my chances of gaining custody?
If after you leave the marital home, the other parent files a petition for divorce, the judge can issue a temporary ex parte order regarding the legal custody, residency, and parenting time that will be in effect during the court proceeding.1 It is important to note that the judge is not supposed to issue an ex parte order that changes the residency of the child from the parent who has had, in effect, sole residency of the child unless there are “extraordinary circumstances.”2 So, in order to get a temporary ex parte order for custody, you may want to get help from a lawyer to be able to convince the judge that there are extraordinary circumstances or that leaving the children for a short time is not the same as the other parent having sole residency.
1 Kan. Stat. § 23-2707(a)(3)
2 Kan. Stat. § 23-2707(b)
