“When my parents got divorced, there was a custody fight over me. ...and no one showed up.” -- Rodney Dangerfield
Kansas recognizes two different kinds of custody for minor children: Legal custody and residential custody. In every case involving child custody, the Court will make rulings pertaining to both varieties of custody. They represent two sides of the same child custody coin, and it is not possible to get a ruling on one without the other. All child custody decisions will be made in accordance with the best interests of the minor child(ren).
Legal custody pertains a parent's right to be involved in the parenting process and parental decision-making. There are two types of legal custody: Joint legal custody and sole legal custody.
Joint legal custody gives each parent the right to be involved in the parenting process, determine the minor child(ren)’s best interests, and make parental decisions based upon the same. This does not, however, extend to all parental decisions. Those decisions affecting the day-to-day raising of the minor child(ren) remain the domain of the residential custodian. Kansas law preferences joint legal custody and the overwhelming majority of child custody cases order joint legal custody.
Sole legal custody vests all parental decision-making authority in one parent, the primary residential custodian. This is an extreme remedy disfavored by Kansan courts, and must be substantiated by extensive factual findings as to why sole legal custody is justified when it is ordered. Notwithstanding such, sole legal custody does not limit a non-custodial parent’s right to obtain information about the minor child(ren) or exercise parenting time. The facts giving rise to sole legal custody, however, might render it in the minor child(ren)’s best interests to limit the non-custodial parent’s access to information or parenting time, which a court has the power to order.
If legal custody addresses the abstract world of parental responsibility, residential custody is distinctly more practical in its focus. It is exactly what it says on the tin: Residential custody addresses where the minor child(ren) primarily reside. There are three kinds of residential custody: Primary residential custody, shared residential custody, and divided residential custody.
Primary residential custody is the most common. In a primary residential custodial arrangement, one parent is designated the primary residential custodian of the minor child(ren). The primary residential custodian has physical custody of the minor child(ren) for the majority of the calendar year subject, to the non-custodial parent's reasonable and liberal parenting time. While “reasonable and liberal parenting time” can vary, it usually includes alternating weekends, alternating major and/or minor holidays, and a substantial block of time during the minor children’s summer vacation.
Shared residential custody is the most confusingly named form of residential custody. It is what the popular imagination considers “joint custody”. Under a shared residential custody arrangement, the minor child(ren) spend their time more or less equally with both parents. The physical custody of the minor child(ren) is then alternated at a fixed interval. Typically, that is weekly or every other week, but it is not unheard of to see swaps more often (e.g. every day or every other day) or less often (e.g. once a month, once every three months, or once a year.)
Divided custody is the rarest of the three kinds of residential custody and is highly disfavored by the courts. Only available when there are multiple minor children, divided custody makes each parent the primary residential custodian of one or more of the children, with the other parent having court-order parenting time. Because divided custody permanently splits up a family, courts are required to make extensive factual findings to justify why such is in the best interests of the minor children.