Effect of Cohabitation on Child Custody in Kansas

by Cindy Chung

When unmarried, separated or divorced parents raise their child in two households, one parent's cohabitation with a new partner may cause problems. For moral, personal or religious reasons, a parent might feel uncomfortable about the child living in a home the other parent shares with someone outside of marriage. Also, a parent may have safety concerns or distrust the ex-spouse's partner or roommate. Due to factors in Kansas law, cohabitation may affect parents' court-ordered custody arrangements.

Initial Custody Determination

An initial award for child custody in a Kansas divorce, paternity or custody case determines the child's primary residence as well as the parental rights of the mother and father in a parenting plan. Although parents may share the right to make parenting decisions through joint custody, the child primarily lives in the home of the parent with residential custody. The Kansas court determines the initial custody award pursuant to the custody factors established by state law, and one parent's cohabitation may affect the court's decision. It may consider whether the residential or custodial parent would allow the child to interact with any other person who would affect the child's best interests in a negative manner. Although the Kansas Supreme Court has defined cohabitation as a couple living together outside of marriage but assuming the rights and duties generally held by married persons, the child custody factors do not specifically define cohabitation. Instead, the court may consider any circumstances and relationships that could significantly affect the child's well-being when ruling on custody.

Other Individuals in a Parent's Home

Kansas custody factors include specific requirements regarding individuals in a parent's home, regardless of whether the individual lives in the home in a cohabitation arrangement or simply as a roommate. State law includes a rebuttable presumption that a child should not live with a parent who resides in a home with a convicted sex offender, violent sexual predator or child abuser. The presumption also covers individuals convicted of a variety of other crimes, including criminal sexual conduct and felony crimes involving the use of a deadly weapon. A rebuttable presumption means that a parent can submit evidence to overcome the court's initial impression that the parent should not receive residential custody.

Cohabitation and Modification to Child Custody

If parents have an existing parenting plan issued by a Kansas court, one parent's cohabitation with a new partner might allow the other parent to request a change in custody through a court-approved modification. Before modifying a current custody order, the court must find a material change in circumstances that has an adverse, negative effect on the child's best interests or well-being. Otherwise, the court may seek stability for the child by keeping the arrangement as is. As with the initial award for custody, the court must consider the state's custody factors and determine the child's best interests. For an older child, the court may consider the teenager's wishes — for example, an older child might explain how she does not want to live in the home after her parent's new partner moves in.

Custody Rights by Agreement

Parents can negotiate their custody rights and parenting plan with the approval of a Kansas court. However, parents cannot agree to an arrangement that violates state law. For example, parents likely cannot agree to allow their child to reside in the home of a parent cohabiting with a convicted sex offender or child abuser. Parents may also choose to include provisions in their parenting plan or divorce decree that define cohabitation and explain how a future cohabitation might effect the agreement. If cohabitation occurs, the other parent may be able to request a modification from the court that approved the existing plan.