As Amended by Senate Committee          

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Session of 2000
          SENATE BILL No. 530           By Committee on Judiciary           2-1          

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10             AN  ACT concerning child support enforcement; establishing the Kansas
11             payment center; income withholding; amending K.S.A. 23-4,136, 38-
12             1123 and 60-2803 and K.S.A. 1999 Supp. 23-4,106, 23-4,108, 23-4,118,
13             38-1121, 60-1610 and 60-2308 and repealing the existing sections.
14      
15       Be it enacted by the Legislature of the State of Kansas:
16             Section  1. K.S.A. 1999 Supp. 23-4,106 is hereby amended to read as
17       follows: 23-4,106. As used in the income withholding act:
18             (a) ``Arrearage'' means the total amount of unpaid support which is
19       due and unpaid under an order for support, based upon the due date
20       specified in the order for support or, if no specific date is stated in the
21       order, the last day of the month in which the payment is to be made. If
22       the order for support includes a judgment for reimbursement, an arrear-
23       age equal to or greater than the amount of support payable for one month
24       exists on the date the order for support is entered.
25             (b) ``Business day'' means a day on which state offices in Kansas are
26       open for regular business.
27             (c) ``Health benefit plan'' means any benefit plan, other than public
28       assistance, which is able to provide hospital, surgical, medical, dental or
29       any other health care or benefits for a child, whether through insurance
30       or otherwise, and which is available through a parent's employment or
31       other group plan.
32             (d) ``Income'' means any form of periodic payment to an individual,
33       regardless of source, including, but not limited to, wages, salary, trust,
34       royalty, commission, bonus, compensation as an independent contractor,
35       annuity and retirement benefits, workers compensation and any other
36       periodic payments made by any person, private entity or federal, state or
37       local government or any agency or instrumentality thereof. ``Income''
38       does not include: (1) Any amounts required by law to be withheld, other
39       than creditor claims, including but not limited to federal and state taxes,
40       social security tax and other retirement and disability contributions; (2)
41       any amounts exempted by federal law; (3) public assistance payments;
42       and (4) unemployment insurance benefits except to the extent otherwise
43       provided by law. Any other state or local laws which limit or exempt

2
  1       income or the amount or percentage of income that can be withheld shall
  2       not apply. Workers compensation shall be considered income only for the
  3       purposes of child support and not for the purposes of maintenance.
  4             (e) ``income withholding order'' means an order issued under this act
  5       which requires a payor to withhold income to satisfy an order for support
  6       or to defray an arrearage.
  7             (f) ``Medical child support order'' means an order requiring a parent
  8       to provide coverage for a child under a health benefit plan and, where
  9       the context requires, may include an order requiring a payor to enroll a
10       child in a health benefit plan.
11             (g) ``Medical withholding order'' means an income withholding order
12       which requires an employer, sponsor or other administrator of a health
13       benefit plan to enroll a child under the health coverage of a parent.
14             (h) ``Nonparticipating parent'' means, if one parent is a participating
15       parent as defined in this section, the other parent.
16             (i) ``Obligee'' means the person or entity to whom a duty of support
17       is owed.
18             (j) ``Obligor'' means any person who owes a duty to make payments
19       or provide health benefit coverage under an order for support.
20             (k) ``Order for support'' means any order of a court, or of an admin-
21       istrative agency authorized by law to issue such an order, which provides
22       for payment of funds for the support of a child, or for maintenance of a
23       spouse or ex-spouse, and includes an order which provides for modifi-
24       cation or resumption of a previously existing order; payment of uninsured
25       medical expenses; payment of an arrearage accrued under a previously
26       existing order; a reimbursement order, including but not limited to an
27       order established pursuant to K.S.A. 39-718a or 39-718b, and amend-
28       ments thereto; an order established pursuant to K.S.A. 23-451 et seq. and
29       amendments thereto; or a medical child support order.
30             (l) ``Participating parent'' means a parent who is eligible for single
31       coverage under a health benefit plan as defined in this section, regardless
32       of the type of coverage actually in effect, if any.
33             (m) ``Payor'' means any person or entity owing income to an obligor
34       or any self-employed obligor and includes, with respect to a medical child
35       support order, the sponsor or administrator of a health benefit plan.
36             (n) ``Public office'' means any elected or appointed official of the state
37       or any political subdivision or agency of the state, or any subcontractor
38       thereof, who is or may become responsible by law for enforcement of, or
39       who is or may become authorized to enforce, an order for support, in-
40       cluding but not limited to the department of social and rehabilitation
41       services, court trustees, county or district attorneys and other
42       subcontractors.
43             (o) ``Title IV-D'' means part D of title IV of the federal social security

3
  1       act (42 U.S.C. § 651 et seq.) and amendments thereto, as in effect on
  2       May 1, 1997 December 31, 1999. ``Title IV-D cases'' means those cases
  3       required by title IV-D to be processed by the department of social and
  4       rehabilitation services under the state's plan for providing title IV-D
  5       services.
  6             Sec.  2. K.S.A. 1999 Supp. 23-4,108 is hereby amended to read as
  7       follows: 23-4,108. (a) It shall be the affirmative duty of any payor to re-
  8       spond within 10 days to written requests for information presented by
  9       the public office concerning: (1) The full name of the obligor; (2) the
10       current address of the obligor; (3) the obligor's social security number;
11       (4) the obligor's work location; (5) the number of the obligor's claimed
12       dependents; (6) the obligor's gross income; (7) the obligor's net income;
13       (8) an itemized statement of deductions from the obligor's income; (9)
14       the obligor's pay schedule; (10) the obligor's health insurance coverage;
15       and (11) whether or not income owed the obligor is being withheld pur-
16       suant to this act. This is an exclusive list of the information that the payor
17       is required to provide under this section.
18             (b) It shall be the duty of any payor who has been served a copy of
19       an income withholding order for payment of an order for cash support to
20       deduct and pay over income as provided in this section. The payor shall
21       begin the required deductions no later than the next payment of income
22       due the obligor after 14 days following service of the order on the payor.
23             (c) Within seven business days of the time the obligor is normally
24       paid, the payor shall pay the amount withheld as directed by the income
25       withholding agency pursuant to K.S.A. 23-4,109 and amendments
26       thereto, as directed by the income withholding order or by a rule of the
27       Kansas supreme court. The payor shall identify each payment with the
28       name of the obligor, the county and case number of the income with-
29       holding order, and the date the income was withheld from the obligor. A
30       payor subject to more than one income withholding order payable to the
31       same payee may combine the amounts withheld into a single payment,
32       but only if the amount attributable to each income withholding order is
33       clearly identified. Premiums required for a child's coverage under a health
34       benefit plan shall be remitted as provided in the health benefit plan and
35       shall not be combined with any other support payment required by the
36       income withholding order.
37             (d) The payor shall continue to withhold income as required by the
38       income withholding order until further order of the court or agency.
39             (e) From income due the obligor, the payor may withhold and retain
40       to defray the payor's costs a cost recovery fee of $5 for each pay period
41       for which income is withheld or $10 for each month for which income is
42       withheld, whichever is less. Such cost recovery fee shall be in addition to
43       the amount withheld as support.

4
  1             (f) The entire sum withheld by the payor, including the cost recovery
  2       fee and premiums due from the obligor which are incurred solely because
  3       of a medical withholding order, shall not exceed the limits provided for
  4       under section 303(b) of the consumer credit protection act (15 U.S.C. §
  5       1673(b)). If amounts of earnings required to be withheld exceed the max-
  6       imum amount of earnings which may be withheld according to the con-
  7       sumer credit protection act, priority shall be given to payment of current
  8       and past due support, and the payor shall promptly notify the holder of
  9       the limited power of attorney of any nonpayment of premium for a health
10       benefit plan on the child's behalf. An income withholding order issued
11       pursuant to this act shall not be considered a wage garnishment as defined
12       in subsection (b) of K.S.A. 60-2310 and amendments thereto. If amounts
13       of earnings required to be withheld in accordance with this act are less
14       than the maximum amount of earnings which could be withheld according
15       to the consumer credit protection act, the payor shall honor garnishments
16       filed by other creditors to the extent that the total amount taken from
17       earnings does not exceed consumer credit protection act limitations.
18             (g) The payor shall promptly notify the court or agency that issued
19       the income withholding order of the termination of the obligor's em-
20       ployment or other source of income, or the layoff of the obligor from
21       employment, and provide the obligor's last known address and the name
22       and address of the individual's current employer, if known.
23             (h) A payor who complies with a copy of an income withholding order
24       that is regular on its face shall not be subject to civil liability to any person
25       or agency for conduct in compliance with the income withholding order.
26             (i) Except as provided further, if any payor violates the provisions of
27       this act, the court may enter a judgment against the payor for the total
28       amount which should have been withheld and paid over. If the payor,
29       without just cause or excuse, intentionally fails to pay over income within
30       the time established in subsection (c) and the obligee files a motion to
31       have such income paid over, the court shall enter a judgment against the
32       payor and in favor of the obligee for three times the amount of the income
33       owed and reasonable attorney fees.
34             (j) In addition to any judgment authorized by subsection (i), a payor
35       shall be subject to a civil penalty not exceeding $500 and other equitable
36       relief as the court considers proper if the payor: (1) Discharges, refuses
37       to employ or takes disciplinary action against an obligor subject to an
38       income withholding order because of such withholding and the obliga-
39       tions or additional obligations which it imposes upon the payor; or (2)
40       fails to withhold support from income or to pay such amounts in the
41       manner required by this act.
42             Sec.  3. K.S.A. 1999 Supp. 23-4,118 is hereby amended to read as
43       follows: 23-4,118. (a) The department of social and rehabilitation services

5
  1       is designated as the state income withholding agency in title IV-D cases.
  2       For the purpose of keeping adequate records to document, track and
  3       monitor support payments in title IV-D cases and for the purpose of
  4       initiating the income withholding process in such cases, the department
  5       may contract for the performance of all or a portion of the withholding
  6       agency function with existing title IV-D contractors or any newly created
  7       entity capable of providing such services.
  8             (b) In all other cases, except as otherwise provided in this subsection,
  9       the clerk of the district court is designated as the income withholding
10       agency for the purpose of keeping adequate records to allow the obligor
11       and obligee to track and monitor support payments. If a district court
12       trustee has been designated by the chief judge to receive, process and
13       maintain records for moneys received under support orders, the district
14       court trustee is designated as the income withholding agency for non-IV-
15       D cases in the judicial district. The department of social and rehabilitation
16       services, the title IV-D agency for the state, shall establish a central unit
17       for collection and disbursement of support payments to meet the require-
18       ments of title IV-D. The department shall not require any person to
19       pay a service fee solely because payments are processed by the cen-
20       tral unit for collection and disbursement of support payments. The
21       department shall collaborate with the Kansas supreme court to establish
22       the central unit for collection and disbursement of support payments,
23       which shall include, but is not limited to, all support payments subject to
24       the requirements of title IV-D. Upon designation by the Kansas supreme
25       court, the central unit for collection and disbursement of support pay-
26       ments shall commence operations with respect to support orders entered
27       in each county as provided in a schedule adopted or approved by the
28       supreme court or the supreme court's designee.
29             (b) When the central unit for collection and disbursement of support
30       payments commences operations with respect to a county, any provision
31       in any child support order or income withholding order entered in that
32       county which requires remittance of support payments to the clerk of the
33       district court or district court trustee shall be deemed to require remit-
34       tance of support payments to the central unit for collection and disburse-
35       ment of support payments, regardless of the date the child support or
36       income withholding order was entered.
37             (c) As used in this section, ``child support order'' includes any order
38       for maintenance of a spouse or ex-spouse issued in conjunction with a
39       child support order.
40             Sec.  4. K.S.A. 23-4,136 is hereby amended to read as follows: 23-
41       4,136. Any person who is the obligor under a support order of another
42       jurisdiction may obtain voluntary income withholding by filing with the
43       court a request for an income withholding order and a certified copy of

6
  1       the support order of the other jurisdiction. The court shall issue an in-
  2       come withholding order, as provided in subsection (i) of K.S.A. 23-4,107
  3       and amendments thereto, which shall be honored by any payor regardless
  4       of whether there is an arrearage. In such a case, payments shall be made
  5       from the payor or the clerk of the court to the agency for distribution to
  6       the obligee.
  7             Sec.  5. K.S.A. 1999 Supp. 38-1121 is hereby amended to read as
  8       follows: 38-1121. (a) The judgment or order of the court determining the
  9       existence or nonexistence of the parent and child relationship is deter-
10       minative for all purposes, but if any person necessary to determine the
11       existence of a father and child relationship for all purposes has not been
12       joined as a party, a determination of the paternity of the child shall have
13       only the force and effect of a finding of fact necessary to determine a
14       duty of support.
15             (b) If the judgment or order of the court is at variance with the child's
16       birth certificate, the court shall order that a new birth certificate be is-
17       sued, but only if any man named as the father on the birth certificate is
18       a party to the action.
19             (c) Upon adjudging that a party is the parent of a minor child, the
20       court shall make provision for support and education of the child includ-
21       ing the necessary medical expenses incident to the birth of the child. The
22       court may order the support and education expenses to be paid by either
23       or both parents for the minor child. When the child reaches 18 years of
24       age, the support shall terminate unless: (1) The parent or parents agree,
25       by written agreement approved by the court, to pay support beyond that
26       time; (2) the child reaches 18 years of age before completing the child's
27       high school education in which case the support shall not automatically
28       terminate, unless otherwise ordered by the court, until June 30 of the
29       school year during which the child became 18 years of age if the child is
30       still attending high school; or (3) the child is still a bona fide high school
31       student after June 30 of the school year during which the child became
32       18 years of age, in which case the court, on motion, may order support
33       to continue through the school year during which the child becomes 19
34       years of age so long as the child is a bona fide high school student and
35       the parents jointly participated or knowingly acquiesced in the decision
36       which delayed the child's completion of high school. The court, in ex-
37       tending support pursuant to subsection (c)(3), may impose such condi-
38       tions as are appropriate and shall set the child support utilizing the guide-
39       line table category for 16-year through 18-year old children. Provision for
40       payment of support and educational expenses of a child after reaching 18
41       years of age if still attending high school shall apply to any child subject
42       to the jurisdiction of the court, including those whose support was or-
43       dered prior to July 1, 1992. If an agreement approved by the court prior

7
  1       to July 1, 1988, provides for termination of support before the date pro-
  2       vided by subsection (c)(2), the court may review and modify such agree-
  3       ment, and any order based on such agreement, to extend the date for
  4       termination of support to the date provided by subsection (c)(2). If an
  5       agreement approved by the court prior to July 1, 1992, provides for ter-
  6       mination of support before the date provided by subsection (c)(3), the
  7       court may review and modify such agreement, and any order based on
  8       such agreement, to extend the date for termination of support to the date
  9       provided by subsection (c)(3). For purposes of this section, ``bona fide
10       high school student'' means a student who is enrolled in full accordance
11       with the policy of the accredited high school in which the student is
12       pursuing a high school diploma or a graduate equivalency diploma
13       (GED). The judgment shall specify the terms of payment and shall re-
14       quire payment to be made through the clerk of the district court or the
15       court trustee except for good cause shown. The judgment may require
16       the party to provide a bond with sureties to secure payment. The court
17       may at any time during the minority of the child modify or change the
18       order of support, including any order issued in a title IV-D case, within
19       three years of the date of the original order or a modification order, as
20       required by the best interest of the child. If more than three years has
21       passed since the date of the original order or modification order, a re-
22       quirement that such order is in the best interest of the child need not be
23       shown. The court may make a modification of support retroactive to a
24       date at least one month after the date that the motion to modify was filed
25       with the court. Any increase in support ordered effective prior to the date
26       the court's judgment is filed shall not become a lien on real property
27       pursuant to K.S.A. 60-2202, and amendments thereto.
28             (d) If both parents are parties to the action, the court shall enter such
29       orders regarding custody and visitation as the court considers to be in the
30       best interest of the child.
31             (e) In entering an original order for support of a child under this
32       section, the court may award an additional judgment to reimburse the
33       expenses of support and education of the child from the date of birth to
34       the date the order is entered. If the determination of paternity is based
35       upon a presumption arising under K.S.A. 38-1114 and amendments
36       thereto, the court shall award an additional judgment to reimburse all or
37       part of the expenses of support and education of the child from at least
38       the date the presumption first arose to the date the order is entered,
39       except that no additional judgment need be awarded for amounts accrued
40       under a previous order for the child's support.
41             (f) In determining the amount to be paid by a parent for support of
42       the child and the period during which the duty of support is owed, a court
43       enforcing the obligation of support shall consider all relevant facts in-

8
  1       cluding, but not limited to, the following:
  2             (1) The needs of the child.
  3             (2) The standards of living and circumstances of the parents.
  4             (3) The relative financial means of the parents.
  5             (4) The earning ability of the parents.
  6             (5) The need and capacity of the child for education.
  7             (6) The age of the child.
  8             (7) The financial resources and the earning ability of the child.
  9             (8) The responsibility of the parents for the support of others.
10             (9) The value of services contributed by the custodial parent.
11             (g) The provisions of K.S.A. 23-4,107, and amendments thereto, shall
12       apply to all orders of support issued under this section.
13             (h) An order granting visitation rights pursuant to this section may
14       be enforced in accordance with K.S.A. 23-701, and amendments thereto.
15             Sec.  6. K.S.A. 38-1123 is hereby amended to read as follows: 38-
16       1123. (a) If existence of the father and child relationship has been deter-
17       mined and payment of support is ordered under prior law, the court may
18       order support and any related expenses to be paid through the clerk of
19       the court or district court trustee the central unit for collection and dis-
20       bursement of support payments designated pursuant to K.S.A. 23-4,118,
21       and amendments thereto. If payment of support is ordered under this act,
22       the court shall require such support and any related expense to be paid
23       through the clerk of the court or the court trustee the central unit for
24       collection and disbursement of support payments designated pursuant to
25       K.S.A. 23-4,118, and amendments thereto.
26             (b) The provisions of K.S.A. 23-4,107 the Kansas income withholding
27       act, K.S.A. 23-4,105 through K.S.A. 23-4,123, and amendments thereto,
28       shall apply to orders of support issued under this act or under the pred-
29       ecessor to this act.
30             (c) Willful failure to obey the judgment or order of the court is a civil
31       contempt of the court. All remedies for the enforcement of judgments
32       apply.
33             Sec.  7. K.S.A. 1999 Supp. 60-1610 is hereby amended to read as
34       follows: 60-1610. A decree in an action under this article may include
35       orders on the following matters:
36             (a) Minor children. (1) Child support and education. The court shall
37       make provisions for the support and education of the minor children. The
38       court may modify or change any prior order, including any order issued
39       in a title IV-D case, within three years of the date of the original order
40       or a modification order, when a material change in circumstances is
41       shown, irrespective of the present domicile of the child or the parents. If
42       more than three years has passed since the date of the original order or
43       modification order, a material change in circumstance need not be shown.

9
  1       The court may make a modification of child support retroactive to a date
  2       at least one month after the date that the motion to modify was filed with
  3       the court. Any increase in support ordered effective prior to the date the
  4       court's judgment is filed shall not become a lien on real property pursuant
  5       to K.S.A. 60-2202 and amendments thereto. Regardless of the type of
  6       custodial arrangement ordered by the court, the court may order the child
  7       support and education expenses to be paid by either or both parents for
  8       any child less than 18 years of age, at which age the support shall ter-
  9       minate unless: (A) The parent or parents agree, by written agreement
10       approved by the court, to pay support beyond the time the child reaches
11       18 years of age; (B) the child reaches 18 years of age before completing
12       the child's high school education in which case the support shall not ter-
13       minate automatically, unless otherwise ordered by the court, until June
14       30 of the school year during which the child became 18 years of age if
15       the child is still attending high school; or (C) the child is still a bona fide
16       high school student after June 30 of the school year during which the
17       child became 18 years of age, in which case the court, on motion, may
18       order support to continue through the school year during which the child
19       becomes 19 years of age so long as the child is a bona fide high school
20       student and the parents jointly participated or knowingly acquiesced in
21       the decision which delayed the child's completion of high school. The
22       court, in extending support pursuant to subsection (a)(1)(C), may impose
23       such conditions as are appropriate and shall set the child support utilizing
24       the guideline table category for 16-year through 18-year old children.
25       Provision for payment of support and educational expenses of a child after
26       reaching 18 years of age if still attending high school shall apply to any
27       child subject to the jurisdiction of the court, including those whose sup-
28       port was ordered prior to July 1, 1992. If an agreement approved by the
29       court prior to July 1, 1988, provides for termination of support before the
30       date provided by subsection (a)(1)(B), the court may review and modify
31       such agreement, and any order based on such agreement, to extend the
32       date for termination of support to the date provided by subsection
33       (a)(1)(B). If an agreement approved by the court prior to July 1, 1992,
34       provides for termination of support before the date provided by subsec-
35       tion (a)(1)(C), the court may review and modify such agreement, and any
36       order based on such agreement, to extend the date for termination of
37       support to the date provided by subsection (a)(1)(C). For purposes of this
38       section, ``bona fide high school student'' means a student who is enrolled
39       in full accordance with the policy of the accredited high school in which
40       the student is pursuing a high school diploma or a graduate equivalency
41       diploma (GED). In determining the amount to be paid for child support,
42       the court shall consider all relevant factors, without regard to marital
43       misconduct, including the financial resources and needs of both parents,

10
  1       the financial resources and needs of the child and the physical and emo-
  2       tional condition of the child. Until a child reaches 18 years of age, the
  3       court may set apart any portion of property of either the husband or wife,
  4       or both, that seems necessary and proper for the support of the child.
  5       Every Except for good cause shown, every order requiring payment of
  6       child support under this section shall require that the support be paid
  7       through the clerk of the district court or the court trustee except for good
  8       cause shown the central unit for collection and disbursement of support
  9       payments designated pursuant to K.S.A. 23-4,118, and amendments
10       thereto. Upon notice to any person having an interest in the support
11       order, either parent may ask the court to determine whether such
12       good cause exists.
13             (2) Child custody and residency. (A) Changes in custody. Subject to
14       the provisions of the uniform child custody jurisdiction act (K.S.A. 38-
15       1301 et seq., and amendments thereto), the court may change or modify
16       any prior order of custody when a material change of circumstances is
17       shown, but no ex parte order shall have the effect of changing the custody
18       of a minor child from the parent who has had the sole de facto custody
19       of the child to the other parent unless there is sworn testimony to support
20       a showing of extraordinary circumstances. If an interlocutory order is
21       issued ex parte, the court shall hear a motion to vacate or modify the
22       order within 15 days of the date that a party requests a hearing whether
23       to vacate or modify the order.
24             (B) Examination of parties. The court may order physical or mental
25       examinations of the parties if requested pursuant to K.S.A. 60-235 and
26       amendments thereto.
27             (3) Child custody or residency criteria. The court shall determine
28       custody or residency of a child in accordance with the best interests of
29       the child.
30             (A) If the parties have a written agreement concerning the custody
31       or residency of their minor child, it is presumed that the agreement is in
32       the best interests of the child. This presumption may be overcome and
33       the court may make a different order if the court makes specific findings
34       of fact stating why the agreement is not in the best interests of the child.
35             (B) In determining the issue of custody or residency of a child, the
36       court shall consider all relevant factors, including but not limited to:
37             (i) The length of time that the child has been under the actual care
38       and control of any person other than a parent and the circumstances
39       relating thereto;
40             (ii) the desires of the child's parents as to custody or residency;
41             (iii) the desires of the child as to the child's custody or residency;
42             (iv) the interaction and interrelationship of the child with parents,
43       siblings and any other person who may significantly affect the child's best

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

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

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

14
  1       recipient may file subsequent motions for reinstatement of maintenance
  2       prior to the expiration of subsequent periods of time for maintenance
  3       payments to be made, but no single period of reinstatement ordered by
  4       the court may exceed 121 months. Maintenance may be in a lump sum,
  5       in periodic payments, on a percentage of earnings or on any other basis.
  6       At any time, on a hearing with reasonable notice to the party affected,
  7       the court may modify the amounts or other conditions for the payment
  8       of any portion of the maintenance originally awarded that has not already
  9       become due, but no modification shall be made without the consent of
10       the party liable for the maintenance, if it has the effect of increasing or
11       accelerating the liability for the unpaid maintenance beyond what was
12       prescribed in the original decree. Every Subject to the requirements of
13       the Kansas income withholding act, K.S.A. 23-4,105 through 23-4,123,
14       and amendments thereto, every court order requiring only the payment
15       of maintenance under this section shall require that the maintenance be
16       paid through the clerk of the district court or the court trustee except for
17       good cause shown.
18             (3) Separation agreement. If the parties have entered into a separa-
19       tion agreement which the court finds to be valid, just and equitable, the
20       agreement shall be incorporated in the decree. The provisions of the
21       agreement on all matters settled by it shall be confirmed in the decree
22       except that any provisions for the custody, support or education of the
23       minor children shall be subject to the control of the court in accordance
24       with all other provisions of this article. Matters settled by an agreement
25       incorporated in the decree, other than matters pertaining to the custody,
26       support or education of the minor children, shall not be subject to sub-
27       sequent modification by the court except: (A) As prescribed by the agree-
28       ment or (B) as subsequently consented to by the parties.
29             (4) Costs and fees. Costs and attorney fees may be awarded to either
30       party as justice and equity require. The court may order that the amount
31       be paid directly to the attorney, who may enforce the order in the attor-
32       ney's name in the same case.
33             (c) Miscellaneous matters. (1) Restoration of name. Upon the request
34       of a spouse, the court shall order the restoration of that spouse's maiden
35       or former name.
36             (2) Effective date as to remarriage. Any marriage contracted by a
37       party, within or outside this state, with any other person before a judg-
38       ment of divorce becomes final shall be voidable until the decree of divorce
39       becomes final. An agreement which waives the right of appeal from the
40       granting of the divorce and which is incorporated into the decree or
41       signed by the parties and filed in the case shall be effective to shorten
42       the period of time during which the remarriage is voidable.
43             Sec.  8. K.S.A. 1999 Supp. 60-2308 is hereby amended to read as

15
  1       follows: 60-2308. (a) Money received by any debtor as pensioner of the
  2       United States within three months next preceding the issuing of an exe-
  3       cution, or attachment, or garnishment process, cannot be applied to the
  4       payment of the debts of such pensioner when it appears by the affidavit
  5       of the debtor or otherwise that such pension money is necessary for the
  6       maintenance of the debtor's support or a family support wholly or in part
  7       by the pension money. The filing of the affidavit by the debtor, or making
  8       proof as provided in this section, shall be prima facie evidence of the
  9       necessity of such pension money for such support. It shall be the duty of
10       the court in which such proceeding is pending to release all moneys held
11       by such attachment or garnishment process, immediately upon the filing
12       of such affidavit, or the making of such proof.
13             (b) Except as provided in subsection (c), any money or other assets
14       payable to a participant or beneficiary from, or any interest of any partic-
15       ipant or beneficiary in, a retirement plan which is qualified under sections
16       401(a), 403(a), 403(b), 408, 408A or 409 of the federal internal revenue
17       code of 1986 and amendments thereto shall be exempt from any and all
18       claims of creditors of the beneficiary or participant. Any such plan shall
19       be conclusively presumed to be a spendthrift trust under these statutes
20       and the common law of the state. All records of the debtor concerning
21       such plan or arrangement and of the plan concerning the debtor's partic-
22       ipation in the plan or arrangement shall be exempt from the subpoena
23       process.
24             (c) Any plan or arrangement described in subsection (b) shall not be
25       exempt from the claims of an alternate payee under a qualified domestic
26       relations order. However, the interest of any and all alternate payees
27       under a qualified domestic relations order shall be exempt from any and
28       all claims of any creditor, other than the state department of social and
29       rehabilitation services, of the alternate payee. As used in this subsection,
30       the terms ``alternate payee'' and ``qualified domestic relations order'' have
31       the meaning ascribed to them in section 414(p) of the federal internal
32       revenue code of 1986 and amendments thereto.
33             (d) The provisions of subsections (b) and (c) shall apply to any pro-
34       ceeding which: (1) Is filed on or after July 1, 1986; or (2) was filed on or
35       after January 1, 1986, and is pending or on appeal July 1, 1986.
36             (e) Money held by the central unit for collection and disbursement of
37       support payments designated pursuant to K.S.A. 23-4,118, and amend-
38       ments thereto, the state department of social and rehabilitation services,
39       any clerk of a district court or a any district court trustee in connection
40       with a court order for the support of any person, whether it be the money
41       is identified as child support, spousal support, alimony or maintenance,
42       shall be exempt from execution, attachment or garnishment process.
43             Sec.  9. K.S.A. 60-2803 is hereby amended to read as follows: 60-

16
  1       2803. (a) When a money judgment rendered in a civil action in a court
  2       of this state is satisfied, the judgment creditor or the assignee of the
  3       judgment creditor shall file satisfaction and release of the judgment within
  4       twenty days after receipt of written demand therefor, sent by restricted
  5       mail as defined by K.S.A. 60-103 and amendments thereto. Such satis-
  6       faction and release shall be filed with the clerk of the court in which the
  7       judgment was entered and with the clerk of any other court in which the
  8       judgment was filed.
  9             (b) If a judgment creditor or the assignee of a judgment creditor
10       refuses or neglects to enter satisfaction and release of a judgment when
11       required by this section, such judgment creditor or assignee shall be liable
12       to the judgment debtor, or other interested person demanding the sat-
13       isfaction or release, in damages in the amount of one hundred dollars,
14       together with a reasonable attorney's fee for preparing and prosecuting
15       the action to recover such damages.
16             (c) The provisions of this section shall not apply if the judgment is
17       satisfied by payment through the office of the clerk of the district court,
18       the district court trustee or any central unit for collection and disburse-
19       ment of support payments designated pursuant to K.S.A. 23-4,118, and
20       amendments thereto. 
21       Sec.  10. K.S.A. 23-4,136, 38-1123 and 60-2803 and K.S.A. 1999
22       Supp. 23-4,106, 23-4,108, 23-4,118, 38-1121, 60-1610 and 60-2308 are
23       hereby repealed.
24        Sec.  11. This act shall take effect and be in force from and after its
25       publication in the Kansas register.