Session of 1998
                   
HOUSE BILL No. 2857
         
By Committee on Judiciary
         
2-10
            9             AN ACT concerning children and minors; relating to visitation rights of
10             grandparents; amending K.S.A. 38-129 and 38-130 and K.S.A. 1997
11             Supp. 38-1502 and 60-1616 and repealing the existing sections; also
12             repealing K.S.A. 1997 Supp. 38-1502b.
13            
14       Be it enacted by the Legislature of the State of Kansas:
15           Section 1. K.S.A. 38-129 is hereby amended to read as follows: 38-
16       129. (a) The district court   (male symbol)y shall grant the grandparents of an un-
17       married minor child reasonable visitation rights to the child during the
18       child's minority upon a finding that the visitation rights would be in the
19       child's best interests and when a substantial relationship between the
20       child and the grandparent has been established.
21           (b) The district court may grant the parents of a deceased person
22       visitation rights, or may enforce visitation rights previously granted, pur-
23       suant to this section, even if the surviving parent has remarried and the
24       surviving parent's spouse has adopted the child. Visitation rights may be
25       granted pursuant to this subsection without regard to whether the adop-
26       tion of the child occurred before or after the effective date of this act.
27           (c) The district court shall grant grandparents reasonable visitation
28       rights unless the court, after a hearing, finds that visitation would seri-
29       ously endanger the child's physical, mental, moral or emotional health.
30           Sec. 2. K.S.A. 38-130 is hereby amended to read as follows: 38-130.
31       An action for reasonable visitation rights of grandparents as provided by
32       this act shall be brought in the county in which the child resides with the
33       child's parent, guardian or other person having lawful custody. Such ac-
34       tion shall be considered a domestic relations case and shall not be consid-
35       ered a juvenile case unless ordered by the administrative judge. The court
36       shall fix the time and date for a hearing on the petition and shall prescribe
37       the manner of giving notice thereof to interested persons.
38           Sec. 3. K.S.A. 1997 Supp. 38-1502 is hereby amended to read as
39       follows: 38-1502. As used in this code, unless the context otherwise in-
40       dicates:
41           (a) ``Child in need of care'' means a person less than 18 years of age
42       who:
43           (1) Is without adequate parental care, control or subsistence and the

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  1       condition is not due solely to the lack of financial means of the child's
  2       parents or other custodian;
  3           (2) is without the care or control necessary for the child's physical,
  4       mental or emotional health;
  5           (3) has been physically, mentally or emotionally abused or neglected
  6       or sexually abused;
  7           (4) has been placed for care or adoption in violation of law;
  8           (5) has been abandoned or does not have a known living parent;
  9           (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
10       and amendments thereto;
11           (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
12       of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
13       ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
14       4204a and amendments thereto, does an act which, when committed by
15       a person under 18 years of age, is prohibited by state law, city ordinance
16       or county resolution but which is not prohibited when done by an adult;
17           (8) while less than 10 years of age, commits any act which if done by
18       an adult would constitute the commission of a felony or misdemeanor as
19       defined by K.S.A. 21-3105 and amendments thereto;
20           (9) is willfully and voluntarily absent from the child's home without
21       the consent of the child's parent or other custodian;
22           (10) is willfully and voluntarily absent at least a second time from a
23       court ordered or designated placement, or a placement pursuant to court
24       order, if the absence is without the consent of the person with whom the
25       child is placed or, if the child is placed in a facility, without the consent
26       of the person in charge of such facility or such person's designee;
27           (11) has been residing in the same residence with a sibling or another
28       person under 18 years of age, who has been physically, mentally or emo-
29       tionally abused or neglected, or sexually abused; or
30           (12) while less than 10 years of age commits the offense defined in
31       K.S.A. 21-4204a and amendments thereto.
32           (b) ``Physical, mental or emotional abuse or neglect'' means the in-
33       fliction of physical, mental or emotional injury or the causing of a dete-
34       rioration of a child and may include, but shall not be limited to, failing to
35       maintain reasonable care and treatment, negligent treatment or maltreat-
36       ment or exploiting a child to the extent that the child's health or emotional
37       well-being is endangered. A parent legitimately practicing religious beliefs
38       who does not provide specified medical treatment for a child because of
39       religious beliefs shall not for that reason be considered a negligent parent;
40       however, this exception shall not preclude a court from entering an order
41       pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.
42           (c) ``Sexual abuse'' means any act committed with a child which is
43       described in article 35, chapter 21 of the Kansas Statutes Annotated and

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  1       those acts described in K.S.A. 21-3602 or 21-3603, and amendments
  2       thereto, regardless of the age of the child.
  3           (d) ``Parent,'' when used in relation to a child or children, includes a
  4       guardian, conservator and every person who is by law liable to maintain,
  5       care for or support the child.
  6           (e) ``Interested party'' means the state, the petitioner, the child, any
  7       parent, any grandparent and any person found to be an interested party
  8       pursuant to K.S.A. 38-1541 and amendments thereto.
  9           (f) ``Law enforcement officer'' means any person who by virtue of
10       office or public employment is vested by law with a duty to maintain
11       public order or to make arrests for crimes, whether that duty extends to
12       all crimes or is limited to specific crimes.
13           (g) ``Youth residential facility'' means any home, foster home or struc-
14       ture which provides 24-hour-a-day care for children and which is licensed
15       pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.
16           (h) ``Shelter facility'' means any public or private facility or home
17       other than a juvenile detention facility that may be used in accordance
18       with this code for the purpose of providing either temporary placement
19       for the care of children in need of care prior to the issuance of a dispo-
20       sitional order or longer term care under a dispositional order.
21           (i) ``Juvenile detention facility'' means any secure public or private
22       facility used for the lawful custody of accused or adjudicated juvenile
23       offenders which must not be a jail.
24           (j) ``Adult correction facility'' means any public or private facility, se-
25       cure or nonsecure, which is used for the lawful custody of accused or
26       convicted adult criminal offenders.
27           (k) ``Secure facility'' means a facility which is operated or structured
28       so as to ensure that all entrances and exits from the facility are under the
29       exclusive control of the staff of the facility, whether or not the person
30       being detained has freedom of movement within the perimeters of the
31       facility, or which relies on locked rooms and buildings, fences or physical
32       restraint in order to control behavior of its residents. No secure facility
33       shall be in a city or county jail.
34           (l) ``Ward of the court'' means a child over whom the court has ac-
35       quired jurisdiction by the filing of a petition pursuant to this code and
36       who continues subject to that jurisdiction until the petition is dismissed
37       or the child is discharged as provided in K.S.A. 38-1503 and amendments
38       thereto.
39           (m) ``Custody,'' whether temporary, protective or legal, means the
40       status created by court order or statute which vests in a custodian,
41       whether an individual or an agency, the right to physical possession of
42       the child and the right to determine placement of the child, subject to
43       restrictions placed by the court.

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  1           (n) ``Placement'' means the designation by the individual or agency
  2       having custody of where and with whom the child will live.
  3           (o) ``Secretary'' means the secretary of social and rehabilitation serv-
  4       ices.
  5           (p) ``Relative'' means a person related by blood, marriage or adoption
  6       but, when referring to a relative of a child's parent, does not include the
  7       child's other parent.
  8           (q) ``Court-appointed special advocate'' means a responsible adult
  9       other than an attorney guardian ad litem who is appointed by the court
10       to represent the best interests of a child, as provided in K.S.A. 38-1505a
11       and amendments thereto, in a proceeding pursuant to this code.
12           (r) ``Multidisciplinary team'' means a group of persons, appointed by
13       the court or by the state department of social and rehabilitation services
14       under K.S.A. 38-1523a and amendments thereto, which has knowledge
15       of the circumstances of a child in need of care.
16           (s) ``Jail'' means:
17           (1) An adult jail or lockup; or
18           (2) a facility in the same building or on the same grounds as an adult
19       jail or lockup, unless the facility meets all applicable standards and licen-
20       sure requirements under law and there is (A) total separation of the ju-
21       venile and adult facility spatial areas such that there could be no haphaz-
22       ard or accidental contact between juvenile and adult residents in the
23       respective facilities; (B) total separation in all juvenile and adult program
24       activities within the facilities, including recreation, education, counseling,
25       health care, dining, sleeping, and general living activities; and (C) separate
26       juvenile and adult staff, including management, security staff and direct
27       care staff such as recreational, educational and counseling.
28           (t) ``Kinship care'' means the placement of a child in the home of the
29       child's relative or in the home of another adult with whom the child or
30       the child's parent already has a close emotional attachment.
31           (u) ``Juvenile intake and assessment worker'' means a responsible
32       adult authorized to perform intake and assessment services as part of the
33       intake and assessment system established pursuant to K.S.A. 75-7023 and
34       amendments thereto.
35           Sec. 4. K.S.A. 1997 Supp. 60-1616 is hereby amended to read as
36       follows: 60-1616. (a) Parents. A parent not granted custody or residency
37       of the child is entitled to reasonable visitation rights unless the court   finds,
38       after a hearing, finds that visitation would seriously endanger   seriously
39       the child's physical, mental, moral or emotional health.
40           (b) Grandparents   and stepparents. Grandparents   and stepparents
41       may be granted are entitled to reasonable visitation rights unless the court,
42       after a hearing, finds that visitation would seriously endanger the child's
43       physical, mental, moral or emotional health.

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  1           (c) Stepparents. Stepparents are entitled to reasonable visitation
  2       rights if the court, after a hearing, finds that the stepparents and the child
  3       have significant emotional ties. In all other cases, stepparents may be
  4       granted visitation rights.
  5           (d) Modification. The court may modify an order granting or denying
  6       visitation rights whenever modification would serve the best interests of
  7       the child.
  8             (d) (e) Enforcement of rights. An order granting visitation rights to a
  9       parent pursuant to this section may be enforced in accordance with K.S.A.
10       23-701, and amendments thereto. Actions to enforce grandparents and
11       stepparents visitation rights shall be considered domestic relation cases
12       and not juvenile cases unless ordered by the administrative judge.
13             (e) (f) Repeated denial of rights, effect. Repeated unreasonable denial
14       of or interference with visitation rights granted to a parent pursuant to
15       this section may be considered a material change of circumstances which
16       justifies modification of a prior order of child custody.
17             (f) (g) Repeated child support misuse, effect. Repeated child support
18       misuse may be considered a material change of circumstances which jus-
19       tifies modification of a prior order of child custody.
20             (g) (h) Court ordered exchange or visitation at a child exchange and
21       visitation center. (1) The court may order exchange or visitation to take
22       place at a child exchange and visitation center, as established in K.S.A.
23       75-720 and amendments thereto.
24           (2) A parent may petition the court to modify an order granting vis-
25       itation rights to require that the exchange or transfer of children for vis-
26       itation or visitation take place at a child exchange and visitation center,
27       as established in K.S.A. 75-720 and amendments thereto. The court may
28       modify an order granting visitation rights whenever modification would
29       serve the best interests of the child.
30           Sec. 5. K.S.A. 38-129 and 38-130 and K.S.A. 1997 Supp. 38-1502,
31       38-1502b and 60-1616 are hereby repealed.
32           Sec. 6. This act shall take effect and be in force from and after its
33       publication in the statute book.
34      
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