Kansas Child Custody Agreement

Introduction

Key Things to Know

1. 1

   Agreeing raises a presumption in the parents' favor in Kansas. K.S.A. 23-3202 provides that if the parties have entered into a parenting plan it shall be presumed that the agreement is in the best interests of the child. The presumption may be overcome and the court may make a different order, but only if the court makes specific findings of fact stating why the agreed parenting plan is not in the best interests of the child. That is a findings requirement rather than an evidentiary standard, so no burden of proof is set for it.

2. 2

   The presumption does not make the document self-executing. K.S.A. 23-2712(a) allows a separation agreement to include provisions relating to a parenting plan and requires an agreement the court finds valid, just and equitable to be incorporated in the decree, but any provisions relating to the legal custody, residency, visitation parenting time, support or education of the minor children shall be subject to the control of the court. K.S.A. 23-3211(b) builds the same point into the definition, describing a permanent parenting plan as an agreement between parents which is incorporated into an order at a final hearing. The custody terms bind once the court enters them, and remain modifiable afterward under K.S.A. 23-3218 through 23-3221.

3. 3

   Kansas does not use the phrase physical custody anywhere in its custody article. The article is titled legal custody, residency and parenting plans. K.S.A. 23-3206 covers joint and sole legal custody, K.S.A. 23-3207 covers residency, which is where the child lives, and time with each parent is parenting time rather than visitation. A residential arrangement that splits siblings between the parents is divided residency under K.S.A. 23-3207(b) and is authorized only in an exceptional case.

4. 4

   A parenting plan is required whether or not you agree. K.S.A. 23-3207 provides that the parties shall submit to the court either an agreed parenting plan or, in the case of dispute, proposed parenting plans for the court's consideration, and K.S.A. 23-3212(c) requires a parent asking for temporary orders on custody, residency or parenting time to file a proposed temporary parenting plan at the same time as the request. If the parents cannot produce a plan, or if either parent requests it, K.S.A. 23-3213(d) directs the court to develop one. What agreement changes is whether the court receives one joint plan or two competing ones.

5. 5

   A Kansas permanent parenting plan has a four item statutory floor. K.S.A. 23-3213(b) says the plan must set forth a designation of the legal custodial relationship of the child, a schedule for the child's time with each parent when appropriate, a procedure by which disputes between the parents may be resolved without need for court intervention, and, where either parent is a service member as defined in K.S.A. 23-3217, provisions for custody and parenting time on military deployment, mobilization, temporary duty or unaccompanied tour. The dispute resolution requirement is easy to miss and a plan that omits it is short of the statutory minimum. The same subsection allows the plan to be a general outline of how parental responsibilities and parenting time will be shared, so the minimums do not force a long document.

6. 6

   Kansas requires written notice before a move, and there is no mileage trigger at all. Under K.S.A. 23-3222(a) a parent shall give written notice to the other parent not less than 30 days prior to changing the residence of the child, or removing the child from this state for a period of time exceeding 90 days, and the notice must be sent by restricted mail, return receipt requested, to the other parent's last known address. That duty is triggered by any change of the child's residence, however short the move. Failure to give notice may be punished as indirect civil contempt under 23-3222(b), with attorney fees and expenses available against the parent who did not give it.

7. 7

   Domestic abuse is a required consideration in Kansas, not a presumption. K.S.A. 23-3203(a)(9) makes evidence of domestic abuse one of the factors the court shall consider, and defines it to cover both a pattern or history of physically or emotionally abusive behavior used to gain or maintain domination and control over an intimate partner or household member and a discrete act of domestic violence, stalking or sexual assault. K.S.A. 23-3203(b) lets the court order a parent to undergo a domestic violence offender assessment by a certified batterer intervention program and to follow its recommendations. A separate rebuttable presumption in K.S.A. 23-3205 covers a parent residing with a person on an offender registry or convicted of child abuse, which is a different rule from the domestic abuse factor, and if abuse is part of your situation this is a matter for a lawyer rather than a form.

Kansas Requirements for Child Custody Agreement

• Agreed Parenting Plan Presumption Under K.S.A. 23-3202

  If the parties have entered into a parenting plan it is presumed to be in the best interests of the child, and the court may make a different order only on specific findings of fact stating why the agreed plan is not. The document should be drafted and submitted as the parties' agreed parenting plan so the presumption attaches.

• Parenting Plan Submission Required Under K.S.A. 23-3207

  The parties shall submit either an agreed parenting plan or, in the case of dispute, proposed parenting plans for the court's consideration, and residency is determined after legal custody. Divided residency separating siblings is authorized only in an exceptional case.

• Minimum Provisions of a Permanent Parenting Plan Under K.S.A. 23-3213(b)

  The plan must set forth a designation of the legal custodial relationship, a schedule for the child's time with each parent when appropriate, a procedure for resolving disputes without court intervention, and, where a parent is a service member as defined in K.S.A. 23-3217, provisions for deployment. A plan may be a general outline so long as those items are present.

• Optional Detailed Provisions Under K.S.A. 23-3213(c)

  A plan may also address the residential schedule, holiday, birthday and vacation planning, weekends including holidays and school inservice days, allocation of parental rights on health, education and welfare, sharing of and access to information, relocation of parents, telephone access, transportation, and methods for resolving disputes. These are permitted rather than required.

• Temporary Parenting Plan Filing Under K.S.A. 23-3212(c) and (d)

  A parent requesting temporary orders on custody, residency or parenting time must file a proposed temporary parenting plan contemporaneously with the request, and a parent who disputes it must file a responsive proposed plan. Temporary and permanent plans are separate filings.

• Legal Custody, Residency and Parenting Time Terminology Under K.S.A. 23-3206, 23-3207 and 23-3211

  Kansas keeps legal custody, which is the allocation of parenting responsibilities including decision making on child health, education and welfare, but calls where the child lives residency and calls time with each parent parenting time. The document should avoid the phrase physical custody, which the statute does not use.

• Order of Preference for Joint Legal Custody Under K.S.A. 23-3206

  Joint legal custody is listed first in the statutory order of preference, and a court ordering sole legal custody instead must make specific findings on the record. The plan should state which arrangement is being requested.

• Children's Terms Remain Subject to the Court Under K.S.A. 23-2712(a) and (b)

  A separation agreement may include parenting plan provisions and, if valid, just and equitable, is incorporated in the decree, but provisions on legal custody, residency, parenting time, support or education of the minor children remain subject to the control of the court and stay modifiable while other settled matters do not.

• Thirty Day Notice Before Changing the Child's Residence Under K.S.A. 23-3222

  A parent must give written notice not less than 30 days before changing the child's residence or removing the child from Kansas for more than 90 days, by restricted mail with return receipt requested to the last known address. There is no distance threshold, and failure to give notice may be punished as indirect civil contempt with attorney fees.

• Domestic Abuse as a Required Factor Under K.S.A. 23-3203(a)(9) and (b)

  Evidence of domestic abuse is a factor the court shall consider, defined to cover both a pattern of coercive controlling behavior toward an intimate partner or household member and a discrete act of domestic violence, stalking or sexual assault. The court may order a domestic violence offender assessment by a certified batterer intervention program and require compliance with its recommendations.