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What “Full Custody” Really Means

I have been asked by several potential or current clients whether I think they can get “full custody” of their children in a contested custody proceeding.  I respond by asking the client what he or she means by “full custody,” and the answers are, as you may imagine, varied.  Some parents want the other parent to have nothing to do with the children or them, ever.  Some parents want to have the kids most of the time, and the other parent to only have every other weekend.  Some parents want to have the discretion as to when the other parent can see the kids.  Some parents don’t care when the other parent sees the kids, but do not want that parent to have any rights to decide on where the kids go to school, for instance.  Each of the many variations deserves discussion of the specific circumstances and legal advice based on those facts and the law.

In the State of Kansas, there is no such legal category of “full custody.”  There are two aspects to custody of minor children in family law cases: legal custody and residential custody.  The standard applied by the court for determinations in both categories is the “best interests of the child.”  Separating or separated parents should understand the differences between legal and residential custody, and should seek legal advice based on their specific circumstances regarding what may be considered in the child’s best interests.

Legal Custody

Legal custody refers to the parents’ decision-making rights regarding the health, welfare, and education of the child or children involved, not where the child lives or when the child is physically with each parent.

The most common, and preferred, legal custody arrangement is “joint legal custody.”  When so ordered, the parties have equal rights to make decisions in the best interests of the child.  See K.S.A. 23-3206.  Each party in a joint legal custodial arrangement should respect the equal rights of the other parent, and should make every effort (barring emergency) to discuss significant decisions regarding the child with the other parent in advance, and not in the presence of the child.  In Sedgwick County, for instance, parenting plan orders often specifically identify the following as categories of significance: “education, selection of schooling, religious training, health care, illness/operations (except in emergen­cies), non-routine dental or orthodontic care, welfare, selection of regular care takers, extracurricu­lar activities and teams, prolonged absences from the residence, first or non-routine haircuts/hair care, body piercings or tattoos and other impor­tant matters affecting the minor child(ren).”  Broadly speaking, decisions involving the health, welfare, and education of your child should be discussed with the other parent, and both parents should have equal access to school and health records, and any care providers.

It is often difficult for co-parents to set aside their personal animosities when their relationship with each other ends, but it is extremely important for co-parents to remember that the Court, when it is required to resolve custody disputes, seriously considers testimony and other evidence regarding each parent’s ability to respectfully and effectively co-parent.   Behavior that is seen as disrespectful of or which hinders the other parent’s rights, or involving the child in discussions about the other parent, could be used as evidence against you in court in contested custody and parenting time proceedings.  See K.S.A. 23-3203(a)(8) and (a)(10).

Less common is “sole legal custody.”  When the Court awards one parent sole legal custody, it is because the Court has determined that it is not in the child’s best interests for both parties to have equal decision-making rights.  The Court must make a record of specific findings of fact upon which a ruling for sole legal custody is based: perhaps one parent has moved out of state and has refused to meaningfully participate in child-rearing decisions; or, one parent is struggling with an addiction or other health issues that prevent him or her from effectively co-parenting or making good decisions at this time.  There are a number of circumstances that could possibly justify an award of sole legal custody, and the parent seeking sole legal custody must be prepared to present testimony or other evidence to allow the Court to make an informed and specific ruling.  There are certainly circumstances where “sole legal custody” is in the child’s best interests, but because joint legal custody is preferred, the law requires that there be specific findings of fact sufficient to support it.

 

Residential Custody

As noted above, joint legal custody is the default, if you will, legal custody arrangement, and opposed to sole legal custody.  The other custody category – residential custody – is where most disputes occur.   Broadly speaking, residential custody refers to where the child lives and when he or she is with each parent.  There are two main categories: primary residential custody or shared residential custody.

When one parent has primary residential custody, it means the child or children live with him or her more than half the time.  Typical plans allow for the other parent to have the children every other weekend and maybe one night during each week.  This type of plan may be in the child’s best interests, for instance, when the parent having primary residential custody has a regular daytime work schedule and can be home with the child in the evenings after school, and the other parent has a more demanding or varied work schedule.  Or maybe one parent lives significantly closer to the child’s school.  Or maybe the parents themselves have agreed for whatever reason that this in the best plan for the child.

When the parents have shared residential custody, the child or children live with each parent roughly half the time each.  The parents may alternate weeks, or go by a 2-2-3 plan.  An example of a 2-2-3 plan is when mom has Mondays and Tuesdays, dad has Wednesdays and Thursdays, and they alternate Fridays through Sundays.

The specific schedule for shared residential custody should take into account the location of the parents’ homes in relation to each other’s and the child’s school or activities, the number of exchanges per week, how well the parents can get along at those exchanges, the parents’ work schedules, the child’s school and extracurricular schedules, and any number of other considerations.  As you can imagine, a shared residential plan works best with parents that get along well with each other and who live close enough to one another and the child’s school and activities, so that the child is not spending excessive amounts of time each week commuting, so to speak.

Unfortunately, many disputes about residential custody arise out of financial concerns of one or both of the parents – specifically, how child support is calculated.  Primary residential custody with one parent generally results in a higher child support obligation of the non-custodial parent than a shared residential custody plan would.  Parents considering a parenting plan, whether to establish or change residential custody, should be motivated by the child’s best interests and not a dollar figure.

Other disputes about residential custody arise out of changes in circumstances.  Maybe a parent with shared custody has changed to a new job that takes him or her out of town during the week, making a shared plan no longer in the child’s best interests.  Maybe the child has started attending a school that is closest to one parent, and it is best for the child to stay there during the week because the other parent lives too far away.

Some disputes arise because the parents failed to establish a specific parenting plan when they separated or divorced.  I advise even the most amicable of separated parents to create a parenting plan that accounts for regular parenting time, exchanges, holiday parenting time, etc. You may agree now, and you may agree most of the time, but if there is ever a disagreement, you can simply rely on the specific orders to resolve that disagreement, and hopefully stay out of court.

 

Summary and Guidance

  • Be prepared to discuss what you mean by “full custody.”
  • Remember that there are two categories of custody: legal (decision making) and residential (time spent with each parent).
  • Set aside animosities toward the other party that do not have to do with the child, and remember that custody and parenting time issues are to be determined based on the child’s best interests. At a minimum, cultivate respect for the other person as your child’s other parent.
  • Avoid being solely motivated by a desire to decrease the amount of child support you are obligated to pay or to increase the amount you get. Child support calculations are influenced by custody arrangements, not the other way around.
  • Create a parenting plan that accounts for regular and holiday parenting time, in the event there is ever a disagreement down the line.
  • If you have concerns or questions, do not hesitate to seek legal counsel regarding the applicable law and the specific facts and circumstances regarding what you believe to be in your child’s best interests.