Session of 1999
         
HOUSE BILL No. 2248
         
By Representative Gregory
          
2-3
          
  9             AN  ACT concerning divorce; relating to child support and child custody;
10             mediation; amending K.S.A. 23-601 and 23-602 and K.S.A. 1998 Supp.
11             60-1610 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 23-601 is hereby amended to read as follows: 23-
15       601. Mediation under this section is the process by which a neutral me-
16       diator appointed by the court, or by a hearing officer in a proceeding
17       pursuant to K.S.A. 23-701, assists the parties in reaching a mutually ac-
18       ceptable agreement as to issues of child custody and, visitation and di-
19       vision of property. The role of the mediator is to aid the parties in iden-
20       tifying the issues, reducing misunderstandings, clarifying priorities,
21       exploring areas of compromise and finding points of agreement. An agree-
22       ment reached by the parties is to be based on the decisions of the parties
23       and not the decisions of the mediator.
24             Sec.  2. K.S.A. 23-602 is hereby amended to read as follows: 23-602.
25       (a) The court may order mediation of any contested issue of child custody
26       or, visitation or division of property at any time, upon the motion of a
27       party or on the court's own motion. A hearing officer in a proceeding
28       pursuant to K.S.A. 23-701 may order mediation of a contested issue of
29       child visitation in such a proceeding.
30             (b) If the court or hearing officer orders mediation under subsection
31       (a), the court or hearing officer shall appoint a mediator, taking into con-
32       sideration the following:
33             (1) An agreement by the parties to have a specific mediator appointed
34       by the court or hearing officer;
35             (2) the nature and extent of any relationships the mediator may have
36       with the parties and any personal, financial or other interests the mediator
37       may have which could result in bias or a conflict of interest;
38             (3) the mediator's knowledge of (A) the Kansas judicial system and
39       the procedure used in domestic relations cases, (B) other resources in the
40       community to which parties can be referred for assistance, (C) child de-
41       velopment, (D) clinical issues relating to children, (E) the effects of di-
42       vorce on children and (F) the psychology of families; and
43             (4) the mediator's training and experience in the process and tech-

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  1       niques of mediation.
  2             Sec.  3. K.S.A. 1998 Supp. 60-1610 is hereby amended to read as
  3       follows: 60-1610. A decree in an action under this article may include
  4       orders on the following matters:
  5             (a) Minor children. (1) Child support and education. The court shall
  6       make provisions for the support and education of the minor children.
  7       Absent substantial justification, for the purposes of calculating child sup-
  8       port, if a parent is not currently employed, income shall be imputed to
  9       such parent based on such parent's recent work history, occupational
10       skills and the prevailing job opportunities in the community. It shall be
11       assumed that such parent is able to earn at least the federal minimum
12       wage and to work 40 hours per week. The court may modify or change
13       any prior order, including any order issued in a title IV-D case, within
14       three years of the date of the original order or a modification order, when
15       a material change in circumstances is shown, irrespective of the present
16       domicile of the child or the parents. If more than three years has passed
17       since the date of the original order or modification order, a material
18       change in circumstance need not be shown. In issuing a modification
19       order the court shall not take into account any gross income derived from
20       the obligor's additional employment income or bonuses earned which ex-
21       ceed the gross income earned by the obligor on the date of the original
22       order adjusted by the inflation rate between the date of the original order
23       and the date of the modification order. Inflation shall be measured based
24       on an increase in the consumer price index for all urban consumers pub-
25       lished by the United States department of labor for the preceding calendar
26       year minus 1%. The court may make a modification of child support
27       retroactive to a date at least one month after the date that the motion to
28       modify was filed with the court. Any increase in support ordered effective
29       prior to the date the court's judgment is filed shall not become a lien on
30       real property pursuant to K.S.A. 60-2202 and amendments thereto. Re-
31       gardless of the type of custodial arrangement ordered by the court, the
32       court may order the child support and education expenses to be paid by
33       either or both parents for any child less than 18 years of age, at which
34       age the support shall terminate unless: (A) The parent or parents agree,
35       by written agreement approved by the court, to pay support beyond the
36       time the child reaches 18 years of age; (B) the child reaches 18 years of
37       age before completing the child's high school education in which case the
38       support shall not terminate automatically, unless otherwise ordered by
39       the court, until June 30 of the school year during which the child became
40       18 years of age if the child is still attending high school; or (C) the child
41       is still a bona fide high school student after June 30 of the school year
42       during which the child became 18 years of age, in which case the court,
43       on motion, may order support to continue through the school year during

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  1       which the child becomes 19 years of age so long as the child is a bona
  2       fide high school student and the parents jointly participated or knowingly
  3       acquiesced in the decision which delayed the child's completion of high
  4       school. The court, in extending support pursuant to subsection (a)(1)(C),
  5       may impose such conditions as are appropriate and shall set the child
  6       support utilizing the guideline table category for 16-year through 18-year
  7       old children. Provision for payment of support and educational expenses
  8       of a child after reaching 18 years of age if still attending high school shall
  9       apply to any child subject to the jurisdiction of the court, including those
10       whose support was ordered prior to July 1, 1992. If an agreement ap-
11       proved by the court prior to July 1, 1988, provides for termination of
12       support before the date provided by subsection (a)(1)(B), the court may
13       review and modify such agreement, and any order based on such agree-
14       ment, to extend the date for termination of support to the date provided
15       by subsection (a)(1)(B). If an agreement approved by the court prior to
16       July 1, 1992, provides for termination of support before the date provided
17       by subsection (a)(1)(C), the court may review and modify such agreement,
18       and any order based on such agreement, to extend the date for termi-
19       nation of support to the date provided by subsection (a)(1)(C). For pur-
20       poses of this section, "bona fide high school student" means a student
21       who is enrolled in full accordance with the policy of the accredited high
22       school in which the student is pursuing a high school diploma or a grad-
23       uate equivalency diploma (GED). In determining the amount to be paid
24       for child support, the court shall consider all relevant factors, without
25       regard to marital misconduct, including the financial resources and needs
26       of both parents, the financial resources and needs of the child and the
27       physical and emotional condition of the child. Until a child reaches 18
28       years of age, the court may set apart any portion of property of either the
29       husband or wife, or both, that seems necessary and proper for the support
30       of the child. Every order requiring payment of child support under this
31       section shall require that the support be paid through the clerk of the
32       district court or the court trustee except for good cause shown.
33             If there are no arrearages in child support payments and the residential
34       parent is not providing for the needs of the child or children, such will be
35       deemed a material change in circumstance and the nonresidential parent
36       may petition the court for a modification in child custody and residency.
37       The court shall place the custody of a child with both parents and the
38       residency of the child shall be divided in an equal manner with regard to
39       the time of residency, upon a finding that both parents are suitable par-
40       ents. "Needs of the child or children" shall include, but not be limited to,
41       housing, utilities, food, clothing, school and medical care expenses related
42       to the day-to-day care and well-being of the child or children. The burden
43       of proof shall be on the nonresidential parent to show that the needs of

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  1       the child or children are not being met.
  2             If there are no arrearages in child support payments and the residential
  3       parent is ordered in the divorce agreement to sign form 8332 of the federal
  4       internal revenue service related to release of claim to exemption for a child
  5       of divorced or separated parents to the nonresidential parent and such
  6       residential parent does not do so, the child support such nonresidential
  7       parent owes shall abate until such time the residential parent complies
  8       with the divorce agreement.
  9             If a child or children live with the nonresidential parent for an extended
10       period of time and the divorce agreement of the parties provides for an
11       abatement of child support during such period of time, the child support
12       such nonresidential parent owes shall abate during such period of time.
13       If an abatement is ordered as provided by this paragraph, the burden of
14       proof shall be on the residential parent to show that the child or children
15       were not living with the nonresidential parent.
16             (2) Child custody and residency. (A) Changes in custody. Subject to
17       the provisions of the uniform child custody jurisdiction act (K.S.A. 38-
18       1301 et seq., and amendments thereto), the court may change or modify
19       any prior order of custody when a material change of circumstances is
20       shown, but no ex parte order shall have the effect of changing the custody
21       of a minor child from the parent who has had the sole de facto custody
22       of the child to the other parent unless there is sworn testimony to support
23       a showing of extraordinary circumstances. If an interlocutory order is
24       issued ex parte, the court shall hear a motion to vacate or modify the
25       order within 15 days of the date that a party requests a hearing whether
26       to vacate or modify the order.
27             (B) Examination of parties. The court may order physical or mental
28       examinations of the parties if requested pursuant to K.S.A. 60-235 and
29       amendments thereto.
30             (3) Child custody or residency criteria. The court shall determine
31       custody or residency of a child in accordance with the best interests of
32       the child.
33             (A) If the parties have a written agreement concerning the custody
34       or residency of their minor child, it is presumed that the agreement is in
35       the best interests of the child. This presumption may be overcome and
36       the court may make a different order if the court makes specific findings
37       of fact stating why the agreement is not in the best interests of the child.
38             (B) In determining the issue of custody or residency of a child, the
39       court shall consider all relevant factors, including but not limited to:
40             (i) The length of time that the child has been under the actual care
41       and control of any person other than a parent and the circumstances
42       relating thereto;
43             (ii) the desires of the child's parents as to custody or residency;

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  1             (iii) the desires of the child as to the child's custody or residency;
  2             (iv) the interaction and interrelationship of the child with parents,
  3       siblings and any other person who may significantly affect the child's best
  4       interests;
  5             (v) the child's adjustment to the child's home, school and community;
  6             (vi) the willingness and ability of each parent to respect and appre-
  7       ciate the bond between the child and the other parent and to allow for a
  8       continuing relationship between the child and the other parent; and
  9             (vii) evidence of spousal abuse.
10             Neither parent shall be considered to have a vested interest in the
11       custody or residency of any child as against the other parent, regardless
12       of the age of the child, and there shall be no presumption that it is in the
13       best interests of any infant or young child to give custody or residency to
14       the mother.
15             (4) Types of custodial arrangements. Subject to the provisions of this
16       article, the court may make any order relating to custodial arrangements
17       which is in the best interests of the child. The order shall include, but
18       not be limited to, one of the following, in the order of preference:
19             (A) Joint custody. The court may place the custody of a child with
20       both parties on a shared or joint-custody basis. In that event, the parties
21       shall have equal rights to make decisions in the best interests of the child
22       under their custody. When a child is placed in the joint custody of the
23       child's parents, the court may further determine that the residency of the
24       child shall be divided either in an equal manner with regard to time of
25       residency or on the basis of a primary residency arrangement for the child.
26       The court, in its discretion, may require the parents to submit a plan for
27       implementation of a joint custody order upon finding that both parents
28       are suitable parents or the parents, acting individually or in concert, may
29       submit a custody implementation plan to the court prior to issuance of a
30       custody decree. If the court does not order joint custody, it shall include
31       in the record the specific findings of fact upon which the order for custody
32       other than joint custody is based.
33             (B) Sole custody. The court may place the custody of a child with one
34       parent, and the other parent shall be the noncustodial parent. The cus-
35       todial parent shall have the right to make decisions in the best interests
36       of the child, subject to the visitation rights of the noncustodial parent.
37             (C) Divided custody. In an exceptional case, the court may divide the
38       custody of two or more children between the parties.
39             (D) Nonparental custody. If during the proceedings the court deter-
40       mines that there is probable cause to believe that: (i) The child is a child
41       in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-
42       1502 and amendments thereto; (ii) neither parent is fit to have custody;
43       or (iii) the child is currently residing with such child's grandparent, grand-

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  1       parents, aunt or uncle and such relative has had actual physical custody
  2       of such child for a significant length of time, the court may award tem-
  3       porary custody of the child to such relative, another person or agency if
  4       the court finds the award of custody to such relative, another person or
  5       agency is in the best interests of the child. In making such a custody
  6       order, the court shall give preference, to the extent that the court finds
  7       it is in the best interests of the child, first to awarding such custody to a
  8       relative of the child by blood, marriage or adoption and second to award-
  9       ing such custody to another person with whom the child has close emo-
10       tional ties. The court may make temporary orders for care, support, ed-
11       ucation and visitation that it considers appropriate. Temporary custody
12       orders are to be entered in lieu of temporary orders provided for in K.S.A.
13       38-1542 and 38-1543, and amendments thereto, and shall remain in effect
14       until there is a final determination under the Kansas code for care of
15       children. An award of temporary custody under this paragraph shall not
16       terminate parental rights nor give the court the authority to consent to
17       the adoption of the child. When the court enters orders awarding tem-
18       porary custody of the child to an agency or a person other than the parent
19       but not a relative as described in subpart (iii), the court shall refer a
20       transcript of the proceedings to the county or district attorney. The county
21       or district attorney shall file a petition as provided in K.S.A. 38-1531 and
22       amendments thereto and may request termination of parental rights pur-
23       suant to K.S.A. 38-1581 and amendments thereto. The costs of the pro-
24       ceedings shall be paid from the general fund of the county. When a final
25       determination is made that the child is not a child in need of care, the
26       county or district attorney shall notify the court in writing and the court,
27       after a hearing, shall enter appropriate custody orders pursuant to this
28       section. If the same judge presides over both proceedings, the notice is
29       not required. Any disposition pursuant to the Kansas code for care of
30       children shall be binding and shall supersede any order under this section.
31       When the court enters orders awarding temporary custody of the child
32       to a relative as described in subpart (iii), the court shall annually review
33       the temporary custody to evaluate whether such custody is still in the best
34       interests of the child. If the court finds such custody is in the best interests
35       of the child, such custody shall continue. If the court finds such custody
36       is not in the best interests of the child, the court shall determine the
37       custody pursuant to this section.
38             (b) Financial matters. (1) Division of property. The decree shall di-
39       vide the real and personal property of the parties, including any retire-
40       ment and pension plans, whether owned by either spouse prior to mar-
41       riage, acquired by either spouse in the spouse's own right after marriage
42       or acquired by the spouses' joint efforts, by: (A) a division of the property
43       in kind; (B) awarding the property or part of the property to one of the

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  1       spouses and requiring the other to pay a just and proper sum; or (C)
  2       ordering a sale of the property, under conditions prescribed by the court,
  3       and dividing the proceeds of the sale. Upon request, the trial court shall
  4       set a valuation date to be used for all assets at trial, which may be the
  5       date of separation, filing or trial as the facts and circumstances of the case
  6       may dictate. The trial court may consider evidence regarding changes in
  7       value of various assets before and after the valuation date in making the
  8       division of property. In dividing defined-contribution types of retirement
  9       and pension plans, the court shall allocate profits and losses on the non-
10       participant's portion until date of distribution to that nonparticipant. In
11       making the division of property the court shall consider the age of the
12       parties; the duration of the marriage; the property owned by the parties;
13       their present and future earning capacities; the time, source and manner
14       of acquisition of property; family ties and obligations; the allowance of
15       maintenance or lack thereof; dissipation of assets; the tax consequences
16       of the property division upon the respective economic circumstances of
17       the parties; and such other factors as the court considers necessary to
18       make a just and reasonable division of property. The decree shall provide
19       for any changes in beneficiary designation on: (A) Any insurance or an-
20       nuity policy that is owned by the parties, or in the case of group life
21       insurance policies, under which either of the parties is a covered person;
22       (B) any trust instrument under which one party is the grantor or holds a
23       power of appointment over part or all of the trust assets, that may be
24       exercised in favor of either party; or (C) any transfer on death or payable
25       on death account under which one or both of the parties are owners or
26       beneficiaries. Nothing in this section shall relieve the parties of the ob-
27       ligation to effectuate any change in beneficiary designation by the filing
28       of such change with the insurer or issuer in accordance with the terms
29       of such policy.
30             (2) Maintenance. The decree may award to either party an allowance
31       for future support denominated as maintenance, in an amount the court
32       finds to be fair, just and equitable under all of the circumstances. The
33       decree may make the future payments modifiable or terminable under
34       circumstances prescribed in the decree. The court may make a modifi-
35       cation of maintenance retroactive to a date at least one month after the
36       date that the motion to modify was filed with the court. In any event, the
37       court may not award maintenance for a period of time in excess of 121
38       months. If the original court decree reserves the power of the court to
39       hear subsequent motions for reinstatement of maintenance and such a
40       motion is filed prior to the expiration of the stated period of time for
41       maintenance payments, the court shall have jurisdiction to hear a motion
42       by the recipient of the maintenance to reinstate the maintenance pay-
43       ments. Upon motion and hearing, the court may reinstate the payments

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  1       in whole or in part for a period of time, conditioned upon any modifying
  2       or terminating circumstances prescribed by the court, but the reinstate-
  3       ment shall be limited to a period of time not exceeding 121 months. The
  4       recipient may file subsequent motions for reinstatement of maintenance
  5       prior to the expiration of subsequent periods of time for maintenance
  6       payments to be made, but no single period of reinstatement ordered by
  7       the court may exceed 121 months. Maintenance may be in a lump sum,
  8       in periodic payments, on a percentage of earnings or on any other basis.
  9       At any time, on a hearing with reasonable notice to the party affected,
10       the court may modify the amounts or other conditions for the payment
11       of any portion of the maintenance originally awarded that has not already
12       become due, but no modification shall be made without the consent of
13       the party liable for the maintenance, if it has the effect of increasing or
14       accelerating the liability for the unpaid maintenance beyond what was
15       prescribed in the original decree. Every order requiring payment of main-
16       tenance under this section shall require that the maintenance be paid
17       through the clerk of the district court or the court trustee except for good
18       cause shown.
19             (3) Separation agreement. If the parties have entered into a separa-
20       tion agreement which the court finds to be valid, just and equitable, the
21       agreement shall be incorporated in the decree. The provisions of the
22       agreement on all matters settled by it shall be confirmed in the decree
23       except that any provisions for the custody, support or education of the
24       minor children shall be subject to the control of the court in accordance
25       with all other provisions of this article. Matters settled by an agreement
26       incorporated in the decree, other than matters pertaining to the custody,
27       support or education of the minor children, shall not be subject to sub-
28       sequent modification by the court except: (A) As prescribed by the agree-
29       ment or (B) as subsequently consented to by the parties.
30             (4) Costs and fees. Costs and attorney fees may be awarded to either
31       party as justice and equity require. The court may order that the amount
32       be paid directly to the attorney, who may enforce the order in the attor-
33       ney's name in the same case.
34             (c) Miscellaneous matters. (1) Restoration of name. Upon the request
35       of a spouse, the court shall order the restoration of that spouse's maiden
36       or former name.
37             (2) Effective date as to remarriage. Any marriage contracted by a
38       party, within or outside this state, with any other person before a judg-
39       ment of divorce becomes final shall be voidable until the decree of divorce
40       becomes final. An agreement which waives the right of appeal from the
41       granting of the divorce and which is incorporated into the decree or
42       signed by the parties and filed in the case shall be effective to shorten
43       the period of time during which the remarriage is voidable.

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  1             New Sec.  4. Prior to a divorced parent subpoenaing the financial
  2       records of the other divorced parent, if there has been no arrearages in
  3       child support payments, notice that the subpoena will be issued shall be
  4       given by mail, at least 48 hours prior to the subpoena being issued, to the
  5       parent who is to be subpoenaed. 
  6       Sec.  5. K.S.A. 23-601 and 23-602 and K.S.A. 1998 Supp. 60-1610 is
  7       hereby repealed.
  8        Sec.  6. This act shall take effect and be in force from and after its
  9       publication in the statute book.