In short, In Kansas, when a child or children are born to an unmarried mother, the mother is granted sole custody of the child or children by default. This is because unlike the case where the parents are married, and the child is presumed to be the child of marriage, there is no presumption of paternity for any father when the biological parents are not married.
In other words, if the parents of a child are not legally married at the time of the child’s birth, Kansas law does not recognize the father as the child’s legal father and does not give the father any parental rights or responsibilities to the child. As such, in order for the father to gain these rights, they will have to prove paternity.
One of the easiest ways of establishing paternity between unmarried parents is by signing a form called an Acknowledgement of Paternity (“AOP”), which is a form that is available from local hospitals or Kansas Vital Statistics. It is important to note that an AOP is a no-cost and simple way to establish paternity. However, not everyone is eligible to use the AOP form.
Specifically, couples should not sign an AOP form for Birth Registration if:
- The mother was legally married to anyone at the time of birth or within 300 days from the date the child was born;
- The mother is separated, but not legally divorced at the time of birth; or
- The man is not sure that he is the father
Importantly, once an AOP form is completed and filed with the Kansas Vital Statistics Unit, the father will become the child’s legal father with all parental rights and duties. Other ways of establishing paternity is by filing a paternity petition in a family law court and going through the legal court process.
Does an Unmarried Father Have Rights in Kansas?
As mentioned above, an unmarried father does not automatically have rights when it comes to a child in Kansas. In the state of Kansas, there are two types of custody: physical custody and legal custody. Legal custody refers to the right and responsibility of a parent to make important decisions regarding their child’s education, health, mental health, religion, and overall welfare.
Legal custody may either be sole legal custody, where one parent has complete authority to make all of the major decisions regarding the child, or joint legal custody, where both parents have equal or shared rights to make decisions regarding the child.
Physical custody refers to the right of a parent to have physical possession of their child. In other words, physical custody refers to who the child resides with and for how long they reside with that parent.
In general, when a child primarily resides with one parent more than the other, then the parent who has greater physical custody will be known as the primary custodial parent. Parents may also share joint physical custody of their child, or even split custody where the child resides with each parent fifty percent of the time.
Can a Mother Move a Child Away From the Father in Kansas?
In short, it depends on the facts and circumstances of each particular case. Once again, until an unmarried father has established paternity, a mother has all of the legal rights and responsibilities that come along with being a parent. This means that the mother can move the child wherever she deems to be in the best interest of her child.
Historically, family laws were stacked against fathers who sought to establish paternity and obtain physical and legal custody of their children, especially in cases where they were seeking sole custody. However, both state family laws and courts have now become more unbiased when it comes to granting a father legal or physical custody of their child.
It is important to note that child custody decisions will always be based on the child’s best interest standard. The child’s best interest standard is a legal standard recognized by Kansas law that prioritizes a child’s welfare over the wants and desires of the child’s parents.
This means that in Kansas what is considered to be best for the child will always be placed over the wants and needs of the parents involved. In fact, family law courts in Kansas will only make custody decisions based on what is best for the child. Specifically, the child’s best interest standard may be found in Kansas Statutes § 23-3201.
Examples of common factors Kansas family law courts use in evaluating a child’s best interest when it comes to determining custody include:
- The relationship that each parents has with their child;
- Each parent’s history of interactions with their child;
- Whether or not one parent has been acting as the child’s primary caretaker, and if so, for how long they have been the child’s primary caretaker;
- The child’s attachment and connections to their home, neighborhood, family in the area, and school;
- The mental and physical health of each parent of the child;
- The mental and physical health of the child themselves;
- Each parent’s financial state and their ability to provide for the child;
- Each parent’s residence, including whether or not the child has their own room, etc.;
- Whether or not the child has any special needs, such as physical health, mental, or special medical needs;
- The wishes of the parents, if both parents have agreed to a custody arrangement; and
- The child’s preference, if the child is old enough and capable of stating a preference.
- It is important to note Kansas courts prefer not to have minor children testify in court about their custodial preferences, but will do so in some cases in the court’s chambers.
What Will Likely Happen if There Is a Custody Battle Between Unmarried Parents?
When it comes to what is likely to happen if there is a custody battle between unmarried parents in Kansas, the child custody laws for unmarried parents will play a large role. For instance, if paternity has not been established for the father, then the custody of the child will automatically go to the mother, as mentioned above.
However, if paternity has been established, then the child’s best interest standard will be utilized by the Kansas family law court in order to determine the child’s best interest. In cases where paternity is contested, such as the presumed father of the child filing a denial of paternity, that situation will need to be handled prior to engaging in a custody battle.
Generally speaking, Kansas courts presume that a child spending equal time with their parents to be in the best interests of the child. In other words, joint physical and legal custody is often presumed to be in the child’s best interests and a favored arrangement by family law judges.
A local attorney in Kansas is often necessary in order to ensure that a parent’s legal rights are protected during a custody fight. Further, in order to avoid a lengthy and costly custody battle, it is important for both parents to do their best to remain amicable and willing to compromise when determining their child’s custody, which is often a challenge. An attorney can help a parent avoid a lengthy and expensive custody battle by helping to find a custody arrangement that works for both parents.
What Are Some Other Issues That Unmarried Parents May Experience?
As mentioned above, a mother may move away with a child prior to a father establishing paternity and seeking custody. Alternatively, one parent may not reside in the same state. In such cases where one of the unmarried parents lives outside of Kansas, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) will apply.
The UCCJEA states that the child’s home state is the court that has jurisdiction in child custody matters. In general, if a child is born in Kansas, then that is considered to be their home state. However, if the child has lived in a different state for six or more months, then Kansas may no longer possess jurisdiction to make a custody decision.
Overall, the biggest issue that will cause issues for unmarried parents would be unestablished paternity. Establishing paternity is not only important for establishing child custody, but it is also important for a variety of other matters concerning a child, such as tax implications, decision-making for the child, and setting up child support.
In Kansas, the primary custodial parent, i.e. the parent that possesses the child for the majority of the time, has the right to receive financial support in the form of child support from the non-custodial parent. This is true even when the parents are unmarried. This support is determined by law to be in the child’s best interest.
Do I Need an Attorney for Child Custody Between Unmarried Parents?
If you are an unmarried parent in Kansas and are experiencing issues related to child custody or involving a child, it is advised that you consult with an experienced Kansas child custody lawyer. LegalMatch can assist you with setting up a legal consultation with an experienced attorney in your area.
At that initial consultation, the attorney will then be able to advise you as to what your best course of legal action is when it comes to protecting your parental rights and establishing custody. Further, an attorney will be best suited to helping you adhere to Kansas’s specific laws and guidelines regarding child custody.
An attorney will also ensure your child’s best interests are being protected while also ensuring that your parental rights are protected throughout the entire family law case. A child custody attorney will also be able to represent you in court, as needed.
