A common divorce “myth” holds that a child can pick where they want to live, if the child is old enough. Until a child turns 18, however, this is not true. The divorce court has to create or approve any custody arrangement or parenting schedule. By law the divorce court must determine if a schedule is in the child’s best interest before the schedule can be approved.
In Kansas, the “best interests of the child” test requires the divorce court to consider several factors. First, if the parents of the child reach an agreement on a custody or parenting plan, the divorce court is required to presume the agreement is in the child’s best interests. The presumption can only be overcome if the divorce court makes specific findings the agreement is not in the child’s best interests. In other words, the parents have first say over any custody or parenting plan. If the parents agree on a plan the divorce court will usually approve it. Only if the divorce court specifically finds the custody or parenting agreement does not serve the child’s best interests can the judge reject the agreed plan
If the parties cannot reach an agreement the divorce court has to decide on an appropriate parenting or custody plan. Kansas divorce law lists eleven factors for the courts to consider. The list is not exclusive, the divorce court can consider other relevant factors if appropriate. However, these eleven factors will be considered in every Kansas divorce or paternity case when parenting time or custody is in question. The factors are:
- Length of time the child has been cared for by anyone other than the parents.
- The parents’ wishes.
- The child’s wishes.
- Child’s relationship and interaction with parents, siblings and anyone else who can significantly affect the child’s best interests (for example, step-parents, roommates, etc.).
- Child’s adjustment to home, school and community.
- Willingness and ability of each parent to respect/appreciate bond between child and the other parent, and to allow for a continuing relationship between the other parent and the child.
- Any evidence of spousal abuse.
- Whether either parent is required to register with the sex offender registry in Kansas or another jurisdiction.
- Whether either parent has been convicted of child abuse.
- Whether either parent is living with anyone who is required to register with the sex offender registry in Kansas or any other state.
- Whether either parent is living with anyone who has been convicted of child abuse.
The sixth factor on the list can be very important and very difficult for parties in a hotly contested divorce case. By law the divorce court is required to examine how the parties are able or unable to work together for the best interests of their child. If one party refuses to cooperate with the other, the divorce court can determine that the best interests of the child are harmed and can adjust parenting time accordingly.