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DIVORCE
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Child Custody

Legal custody and Residential Custody mean different things. These areas are frequently the most difficult to resolve during divorce. This is especially true if one parent wants sole legal custody and residential custody. Couples frequently come to an agreement pertaining to these issues but sometimes the court is forced to decide for them.

The term Legal Custody refers to the right(s) of the parent/parents to determine all major issues regarding the child's life, e.g., health, education, medical care and religion. There are different types of custody.

Sole Legal Custody Sole legal custody means that one parent has been selected by the Court to determine all major issues regarding the child.

This includes decisions regarding the health, education, medical care and religion of the child. Because this type of custody deprives the other parent of significant parental rights, the Court must make specific findings of fact on the record for its decision ordering sole legal. Sole legal custody is usually reserved for family situations where one parent has consistently shown an inability to properly care for and parent the child.

Joint Legal Custody. Joint legal custody is the preferred arrangement and is used in most cases. It permits both parents to have equal rights and responsibilities concerning their minor children. This requires that the parents consult with one another regularly on parenting issues like day care, discipline, education, religious training, summer camps, illnesses and operations (except emergencies), medical needs, and other important matters.

Residential Custody. Refers to where the child lives on a day to day basis. Residential custody only defines the residence of the child, not the decision making process of his/her parents. In order for a court to grant residential placement, the court must find that the custodian is a fit and proper person and that placement with that person is in the best interest of the child(ren).

Split custody. This pertains to a custody arrangement with multiple children involved. One parent will be awarded residential custody of one child while the other parent is awarded residential custody of another child. The courts do not favor this resolution as they are usually reluctant to split up the children.

Joint custody. This refers to an arrangement where parents share in the decision making and upbringing of the children, but where the child/children reside primarily with one parent and the other has reasonable and liberal parenting time.

Shared Custody. This refers to those situations where the parents can truly work together to share residential custody with the children have equal or near equal time with each parent. This is a rare because while many parent feel they are capable of working together, in reality, it is an unusual event.

If custody is contested, courts make a decision on a custody arrangement by the determining what arrangement will be in "the best interest of the children". The court will look at about the facts about the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children's age, what the children's wishes may be and the purpose for their wish.

This is an area where a family case can become very expensive because frequently it will be necessary for the parties and their attorneys to have "expert" consultants involved in accessing the living arrangements and family dynamics for the purpose of providing testimony to the court about their findings and recommendations to the Court to assist the Court make its decision.

Parenting Time

Parenting time refers to the right to see a child on a regular basis, generally given to the parent who does not have residential custody or placement of the child. Parenting time plans should be specific so as to avoid any possible conflicts and avoid confusion.

Supervised parenting time is an alternative used when a child's safety and well-being require visits with the other parent be supervised by you, another adult or a professional agency.

No parenting time is an option used in an extreme situation is which contact with the other parent would be detrimental to the child.

Custody and parenting time schedules are always subject to change when circumstances affecting the child's best interests change significantly. Once the conflict of custody and parenting time is settled, there are certain policies that must be followed in order to modify the arrangement. If custody and parenting time were determined through a court, then the parties will have to return to court in order to modify said arrangement. If the agreement was reached through mediation, the couple may have to return to mediation to modify said arrangement.

A parenting time schedule depends on the child's age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child's age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit.

In some instances, a third party seeks visitation with a child, being a step-parent or a grandparent. Laws vary from state to state regarding this issue. Although a grandparent may be a biological grandparent, the court does not always grant visitation. Several factors play a role in the decision making of the court such as:

The grandparent was abusive to their own child;

Interference with ordinary parental decision making; or

Bad-mouthing one or both parents to the child, creating unnecessary conflict.

Seek advice from one of our experienced family law attorneys to assist you with the best interests of both you and your children.

On behalf of McCULLOUGH, WAREHEIM & LaBUNKER, P.A. we hope this material will be of benefit to you in answering your questions relative to family law. Contact a divorce & child support lawyer representing clients in Olathe, Kansas (and throughout the State of Kansas) today to schedule your initial consultation.
785-233-2362

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