CHAPTER 171
HOUSE Substitute for SENATE BILL No. 150
An Act concerning children; relating to joint shared child custody
and parenting time;
concerning grandparents; parental rights; enacting the uniform
child-custody jurisdiction
and enforcement act; amending K.S.A. 20-164, 21-3422a, 23-601,
23-602, 38-1116, 38-
1503, 38-1533, 59-2127, 59-2128, 60-1604, 60-1605, 60-1611,
60-1612, 60-1614, 60-
1615 and 60-1617 and K.S.A. 1999 Supp. 5-509, 20-302b, 23-701,
23-1001, 23-1002,
38-1121, 38-1132, 38-1138, 38-1502, 38-16,119, 59-3009, 60-1607,
60-1610, 60-1616,
60-1620, 60-1621, 60-3103, 60-3106 and 60-3107 and repealing the
existing sections;
also repealing K.S.A. 38-1301 through 38-1326 and
38-1335.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1999 Supp. 5-509
is hereby amended to read as
follows: 5-509. (a) The following types of cases may be accepted
for dis-
pute resolution by an approved program or individual:
(1) Civil claims and disputes, including,
but not limited to, consumer
and commercial complaints, disputes involving allegations of
shoplifting,
disputes between neighbors, disputes between business associates,
dis-
putes between landlords and tenants, disputes involving matters
under
the small claims procedure act, farmer-lender disputes, and
disputes
within communities;
(2) disputes concerning child custody
and, residency, visitation
rights,
parenting time and other areas of domestic relations;
(3) juvenile offenses and disputes
involving juveniles;
(4) disputes between victims and
offenders, in which the victims vol-
untarily agree to participate in mediation;
(5) disputes involving allegations of
unlawful discrimination under
state or federal laws;
(6) disputes referred by county attorneys
or district attorneys;
(7) disputes involving employer and
employee relations under K.S.A.
72-5413 through 72-5432, and amendments thereto, or K.S.A.
75-4321
through 75-4337, and amendments thereto; and
(8) disputes referred by a court, an
attorney, a law enforcement of-
ficer, a social service agency, a school or any other interested
person or
agency, including the request of the parties involved.
(b) A case may be referred prior to the
commencement of formal
judicial proceedings or may be referred as a pending court case. If
a court
refers a case, information shall be provided to the court as to
whether an
agreement was reached and, if available, a copy of the signed
agreement
shall be provided to the court.
(c) Before the dispute resolution process
begins, the neutral person
conducting the process shall provide the parties with a written
statement
setting forth the procedures to be followed.
Sec. 2. K.S.A. 20-164 is hereby
amended to read as follows: 20-164.
(a) The supreme court shall establish by rule an expedited judicial
process
which shall be used in the establishment, modification and
enforcement
of orders of support pursuant to the Kansas parentage act; K.S.A.
23-451
et seq., 39-718a, 39-755, 60-1610, and amendments thereto,
or K.S.A. 39-
718b, and amendments thereto; K.S.A. 38-1542, 38-1543 or 38-1563,
and
amendments thereto; or K.S.A. 23-4,105 through 23-4,118 and
amend-
ments thereto; or K.S.A. 23-4,125 through 23-4,137, and
amendments
thereto.
(b) The supreme court shall establish by
rule an expedited judicial
process for the enforcement of court orders granting a
parent visitation
rights or to parenting time
the parent's child.
Sec. 3. K.S.A. 1999 Supp. 20-302b
is hereby amended to read as
follows: 20-302b. (a) A district magistrate judge shall have the
jurisdiction
and power, in any case in which a violation of the laws of the
state is
charged, to conduct the trial of traffic infractions, cigarette or
tobacco
infractions or misdemeanor charges to conduct the preliminary
exami-
nation of felony charges and to hear felony arraignments subject to
as-
signment pursuant to K.S.A. 20-329 and amendments thereto. In
civil
cases, a district magistrate judge shall have concurrent
jurisdiction, pow-
ers and duties with a district judge, except that, unless otherwise
specif-
ically provided in subsection (b), a district magistrate judge
shall not have
jurisdiction or cognizance over the following actions:
(1) Any action, other than an action
seeking judgment for an unse-
cured debt not sounding in tort and arising out of a contract for
the
provision of goods, services or money, in which the amount in
contro-
versy, exclusive of interests and costs, exceeds $10,000, except
that in
actions of replevin, the affidavit in replevin or the verified
petition fixing
the value of the property shall govern the jurisdiction; nothing in
this
paragraph shall be construed as limiting the power of a district
magistrate
judge to hear any action pursuant to the Kansas probate code or to
issue
support orders as provided by paragraph (6) of this subsection;
(2) actions against any officers of the
state, or any subdivisions
thereof, for misconduct in office;
(3) actions for specific performance of
contracts for real estate;
(4) actions in which title to real estate
is sought to be recovered or
in which an interest in real estate, either legal or equitable, is
sought to
be established, except that nothing in this paragraph shall be
construed
as limiting the right to bring an action for forcible detainer as
provided
in the acts contained in article 23 of chapter 61 of the Kansas
Statutes
Annotated, and any acts amendatory thereof or supplemental thereto;
and
nothing in this paragraph shall be construed as limiting the power
of a
district magistrate judge to hear any action pursuant to the Kansas
probate
code;
(5) actions to foreclose real estate
mortgages or to establish and fore-
close liens on real estate as provided in the acts contained in
article 11 of
chapter 60 of the Kansas Statutes Annotated, and any acts
amendatory
thereof or supplemental thereto;
(6) actions for divorce, separate
maintenance or custody of minor
children, except that nothing in this paragraph shall be construed
as lim-
iting the power of a district magistrate judge to: (A) Hear any
action
pursuant to the Kansas code for care of children or the Kansas
juvenile
justice code; (B) establish, modify or enforce orders of support,
including,
but not limited to, orders of support pursuant to the Kansas
parentage
act, K.S.A. 23-451 et seq., 39-718a, 39-718b, 39-755 or
60-1610 or K.S.A.
23-4,105 through 23-4,118, 23-4,125 through 23-4,137, 38-1542,
38-1543
or 38-1563, and amendments thereto; or (C) enforce orders granting
a
parent visitation rights to the parent's
child or parenting time;
(7) habeas corpus;
(8) receiverships;
(9) change of name;
(10) declaratory judgments;
(11) mandamus and quo warranto;
(12) injunctions;
(13) class actions;
(14) rights of majority; and
(15) actions pursuant to K.S.A. 59-29a01
et seq. and amendments
thereto.
(b) Notwithstanding the provisions of
subsection (a), in the absence,
disability or disqualification of a district judge, a district
magistrate judge
may:
(1) Grant a restraining order, as
provided in K.S.A. 60-902 and
amendments thereto;
(2) appoint a receiver, as provided in
K.S.A. 60-1301 and amend-
ments thereto; and
(3) make any order authorized by K.S.A.
60-1607 and amendments
thereto.
(c) In accordance with the limitations
and procedures prescribed by
law, and subject to any rules of the supreme court relating
thereto, any
appeal permitted to be taken from an order or final decision of a
district
magistrate judge shall be tried and determined de novo by a
district judge,
except that in civil cases where a record was made of the action or
pro-
ceeding before the district magistrate judge, the appeal shall be
tried and
determined on the record by a district judge.
(d) Upon motion of a party, the chief
judge may reassign an action
from a district magistrate judge to a district judge.
Sec. 4. K.S.A. 21-3422a is hereby
amended to read as follows: 21-
3422a. (a) Aggravated interference with parental custody is:
(1) Hiring someone to commit the crime of
interference with paren-
tal custody, as defined by K.S.A. 21-3422 and amendments thereto;
or
(2) the commission of interference with
parental custody, as defined
by K.S.A. 21-3422 and amendments thereto, by a person who:
(A) Has previously been convicted of the
crime;
(B) commits the crime for hire;
(C) takes the child outside the state
without the consent of either the
person having custody or the court;
(D) after lawfully taking the child
outside the state while exercising
visitation rights or parenting time or custody
rights, refuses to return the
child at the expiration of the rights that
time;
(E) at the expiration of
visitation the exercise of any visitation
rights
or parenting time or custody rights outside
the state, refuses to return or
impedes the return of the child; or
(F) detains or conceals the child in an
unknown place, whether inside
or outside the state.
(b) Aggravated interference with parental
custody is a severity level
7, person felony.
(c) This section shall be a part of and
supplemental to the Kansas
criminal code.
Sec. 5. K.S.A. 23-601 is hereby
amended to read as follows: 23-601.
Mediation under this section is the process by which a neutral
mediator
appointed by the court, or by a hearing officer in a
proceeding pursuant
to K.S.A. 23-701,, assists the parties in
reaching a mutually acceptable
agreement as to issues of child custody and
visitation, residency, visita-
tion, parenting time, division of property or other issues.
The role of the
mediator is to aid the parties in identifying the issues, reducing
misun-
derstandings, clarifying priorities, exploring areas of compromise
and
finding points of agreement. An agreement reached by the parties is
to
be based on the decisions of the parties and not the decisions of
the
mediator.
Sec. 6. K.S.A. 23-602 is hereby
amended to read as follows: 23-602.
(a) The court or hearing officer may order mediation of any
contested
issue of child custody or visitation,
residency, visitation, parenting time,
division of property or other issues, at any time, upon
the motion of a
party or on the court's own motion. A hearing officer in a
proceeding
pursuant to K.S.A. 23-701 may order mediation of a
contested issue of
child visitation in such a proceeding.
(b) If the court or hearing officer
orders mediation under subsection
(a), the court or hearing officer shall appoint a mediator, taking
into con-
sideration the following:
(1) An agreement by the parties to have a
specific mediator appointed
by the court or hearing officer;
(2) the nature and extent of any
relationships the mediator may have
with the parties and any personal, financial or other interests the
mediator
may have which could result in bias or a conflict of interest;
(3) the mediator's knowledge of (A) the
Kansas judicial system and
the procedure used in domestic relations cases, (B) other resources
in the
community to which parties can be referred for assistance, (C)
child de-
velopment, (D) clinical issues relating to children, (E) the
effects of di-
vorce on children and (F) the psychology of families; and
(4) the mediator's training and
experience in the process and tech-
niques of mediation.
Sec. 7. K.S.A. 1999 Supp. 23-701 is
hereby amended to read as fol-
lows: 23-701. (a) The purpose of this section is to enhance the
enforce-
ment of court ordered child visitation rights
granted by court order and
parenting time by establishing an a
simplified, expedited procedure which
is simplified enough to provide justice without
necessitating the assistance
of legal counsel.
(b) If a parent has been granted
visitation rights pursuant to K.S.A.
38-1121 or 60-1616, and amendments thereto, and such rights
are denied
or interfered with by the other parent, the parent having
visitation rights
may file with the clerk of the district court a motion for
enforcement of
such rights. Such motion shall be filed on a form provided
by the clerk
of the court. Upon the filing of the motion, the chief
judge of the district
court shall assign a judge of the district court or the
court trustee as a
hearing officer to hear the motion. The hearing officer
shall immediately:
(1) Issue ex
parte an order for mediation in accordance
with K.S.A.
23-601 et seq.,
and amendments thereto; or
(2) set a time and place for a
hearing on the motion, which shall be
not more than 21 days after the filing of the
motion. A party who has
been granted visitation rights or parenting time may file with
the court a
motion alleging denial or interference with those rights and
enforcement
of those rights. The district court shall provide a form on
which such
motion may be filed. Such expedited matters shall be heard by a
district
judge, court trustee, or magistrate, sitting as a hearing
officer. The pro-
visions of this section are in addition to those enforcement
procedures
provided in the uniform child custody jurisdiction and
enforcement act,
and amendments thereto, and other remedies provided by
law.
(c) When a motion seeking expedited
enforcement under subsection
(b) is filed, the hearing officer shall immediately:
(1) Set a time and place for a hearing
on the motion, which shall not
be more than 21 days after the date on which the motion was
filed; or
(2) if deemed appropriate, issue an ex
parte order for mediation in
accordance with K.S.A. 23-601 et seq., and amendments
thereto.
(c) (d) If
mediation ordered pursuant to subsection (b)
(c) is com-
pleted, the mediator shall submit a summary of the parties'
understanding
to the hearing officer within five days after it is signed by the
parties.
Upon receipt of the summary, the hearing officer shall enter an
order in
accordance with the parties' agreement or set a time and place for
a
hearing on the matter, which shall be not more than 10 days after
the
summary is received by the hearing officer.
(d) (e) If
mediation ordered pursuant to subsection (b)
(c) is termi-
nated pursuant to K.S.A. 23-604 and amendments thereto, the
mediator
shall report the termination to the hearing officer within five
days after
the termination. Upon receipt of the report, if the hearing
officer is a
district judge, such judge shall set the matter
shall be set for hearing. If
the hearing officer is a district magistrate judge or a
court trustee, the
chief judge shall assign the matter to a district judge who
shall set the
matter for hearing. Any such hearing shall be not
more than 10 days after
the mediator's report of termination is received by the hearing
officer.
(e) (f) Notice of
the hearing date set by the hearing officer shall be
given to all interested parties by certified mail, return receipt
requested,
or as the court may order.
(f) (g) If, upon
a hearing pursuant to subsection (b), (c)
or (d), the
hearing officer or judge finds that there has
been an unreasonable inter-
ference with or denial of visitation rights of one
parent have been unrea-
sonably denied or interfered with by the other
parent or parenting time,
the hearing officer or judge may shall
enter an order providing for one
or more of the following:
(1) A specific schedule for
visitation schedule or parenting time;
(2) compensating visitation or
parenting time for the visitation denied
or interfered with to the party suffering
interference or denial of visitation
or parenting time, which time shall be of the same type
(e.g., holiday,
weekday, weekend, summer) as that denied or interfered with
and for
which denial or interference was found and which shall be at
the con-
venience of the parent whose visitation was denied or
interfered with
party suffering the denial or interference of visitation or
parenting time;
(3) the posting of a bond, either cash or
with sufficient sureties, con-
ditioned upon compliance with the order granting visitation rights
or par-
enting time;
(4) assessment of reasonable attorney
fees, mediation costs and costs
of the proceedings to enforce visitation rights or parenting
time against
the parent who unreasonably denied or interfered with the
other parent's
visitation rights person responsible for the
unreasonable denial or inter-
ference with visitation or parenting time other than the
child;
(5) attendance of one or both
parents more of the parties to the action
at counseling or educational sessions which focus on the impact
of visi-
tation disputes on children of disputes
regarding visitation or parenting
time. Expenses shall be assessed to the person responsible for
the denial
or interference with visitation or parenting time;
(6) supervised visitation or parenting
time; or
(7) any other remedy which the hearing
officer or judge considers
appropriate, except that, if a hearing officer is
not a district magistrate
judge or court trustee, the hearing officer shall
not enter any order which
grants a new order, or modifies a previous
an existing order granting, for
child support, child custody, residency, or maintenance.
(g) (h) Decisions
of any hearing officer who is not a district
magistrate
judges or court trustees appointed pursuant to this
section judge shall be
subject to review by a district judge on the motion of any party
filed within
10 days after the order was entered.
(h) (i) In no
case shall final disposition of a motion filed pursuant to
this section take place more than 45 days after the filing of such
motion.
Sec. 8. K.S.A. 1999 Supp. 23-1001
is hereby amended to read as
follows: 23-1001. Case management under this act is the process by
which
a neutral case manager appointed by the court, or by a hearing
officer in
a proceeding pursuant to K.S.A. 23-701, and amendments thereto,
or
through agreement by the parties, assists the parties by providing
a pro-
cedure, other than mediation, which facilitates negotiation of a
plan for
child custody, residency or visitation or
visitation parenting time. In the
event that the parties are unable to reach an agreement, the case
manager
shall make recommendations to the court.
Sec. 9. K.S.A. 1999 Supp. 23-1002
is hereby amended to read as
follows: 23-1002. (a) The court may order case management, when
ap-
propriate, of any contested issue of child custody or
visitation parenting
time at any time, upon the motion of a party or on the
court's own motion.
A hearing officer in a proceeding pursuant to K.S.A. 23-701, and
amend-
ments thereto, may order case management, if appropriate, of a
contested
issue of child visitation or parenting time in such a
proceeding.
(b) Cases in which case management is
appropriate shall include one
or more of the following circumstances:
(1) Private or public neutral dispute
resolution services have been
tried and failed to resolve the disputes;
(2) other neutral services have been
determined to be inappropriate
for the family;
(3) repetitive conflict occurs within the
family, as evidenced by the
parties filing of at least two motions in a
six-month period for enforce-
ment, modification or change of visitation
residency, visitation, parenting
time or custody which are denied by the court; or
(4) a parent exhibits diminished capacity
to parent.
(c) If the court or hearing officer
orders case management under
subsection (a), the court or hearing officer shall appoint a case
manager,
taking into consideration the following:
(1) An agreement by the parties to have a
specific case manager ap-
pointed by the court or hearing officer;
(2) the financial circumstances of the
parties and the costs assessed
by the case manager;
(3) the case manager's knowledge of (A)
the Kansas judicial system
and the procedure used in domestic relations cases, (B) other
resources
in the community to which parties can be referred for assistance,
(C)
child development, (D) clinical issues relating to children, (E)
the effects
of divorce on children and (F) the psychology of families; and
(4) the case manager's training and
experience in the process and
techniques of alternative dispute resolution and case
management.
(d) To qualify as an appointed case
manager, an individual shall:
(1) Be qualified to conduct
mediation;
(2) have experience as a mediator;
(3) attend a workshop, approved by the
district court in which the
case is filed, on case management; and
(4) participate in continuing education
regarding management issues.
Sec. 10. K.S.A. 1999 Supp. 38-1121
is hereby amended to read as
follows: 38-1121. (a) The judgment or order of the court
determining the
existence or nonexistence of the parent and child relationship is
deter-
minative for all purposes, but if any person necessary to determine
the
existence of a father and child relationship for all purposes has
not been
joined as a party, a determination of the paternity of the child
shall have
only the force and effect of a finding of fact necessary to
determine a
duty of support.
(b) If the judgment or order of the court
is at variance with the child's
birth certificate, the court shall order that a new birth
certificate be is-
sued, but only if any man named as the father on the birth
certificate is
a party to the action.
(c) Upon adjudging that a party is the
parent of a minor child, the
court shall make provision for support and education of the child
includ-
ing the necessary medical expenses incident to the birth of the
child. The
court may order the support and education expenses to be paid by
either
or both parents for the minor child. When the child reaches 18
years of
age, the support shall terminate unless: (1) The parent or parents
agree,
by written agreement approved by the court, to pay support beyond
that
time; (2) the child reaches 18 years of age before completing the
child's
high school education in which case the support shall not
automatically
terminate, unless otherwise ordered by the court, until June 30 of
the
school year during which the child became 18 years of age if the
child is
still attending high school; or (3) the child is still a bona fide
high school
student after June 30 of the school year during which the child
became
18 years of age, in which case the court, on motion, may order
support
to continue through the school year during which the child becomes
19
years of age so long as the child is a bona fide high school
student and
the parents jointly participated or knowingly acquiesced in the
decision
which delayed the child's completion of high school. The court, in
ex-
tending support pursuant to subsection (c)(3), may impose such
condi-
tions as are appropriate and shall set the child support utilizing
the guide-
line table category for 16-year through 18-year old children.
Provision for
payment of support and educational expenses of a child after
reaching 18
years of age if still attending high school shall apply to any
child subject
to the jurisdiction of the court, including those whose support was
or-
dered prior to July 1, 1992. If an agreement approved by the court
prior
to July 1, 1988, provides for termination of support before the
date pro-
vided by subsection (c)(2), the court may review and modify such
agree-
ment, and any order based on such agreement, to extend the date
for
termination of support to the date provided by subsection (c)(2).
If an
agreement approved by the court prior to July 1, 1992, provides for
ter-
mination of support before the date provided by subsection (c)(3),
the
court may review and modify such agreement, and any order based
on
such agreement, to extend the date for termination of support to
the date
provided by subsection (c)(3). For purposes of this section, ``bona
fide
high school student'' means a student who is enrolled in full
accordance
with the policy of the accredited high school in which the student
is
pursuing a high school diploma or a graduate equivalency
diploma
(GED). The judgment shall specify the terms of payment and shall
re-
quire payment to be made through the clerk of the district court or
the
court trustee except for good cause shown. The judgment may
require
the party to provide a bond with sureties to secure payment. The
court
may at any time during the minority of the child modify or change
the
order of support, including any order issued in a title IV-D case,
within
three years of the date of the original order or a modification
order, as
required by the best interest of the child. If more than three
years has
passed since the date of the original order or modification order,
a re-
quirement that such order is in the best interest of the child need
not be
shown. The court may make a modification of support retroactive to
a
date at least one month after the date that the motion to modify
was filed
with the court. Any increase in support ordered effective prior to
the date
the court's judgment is filed shall not become a lien on real
property
pursuant to K.S.A. 60-2202, and amendments thereto.
(d) If both parents are parties to the
action, the court shall enter such
orders regarding custody, residency and
visitation parenting time as the
court considers to be in the best interest of the child.
If the parties have an agreed parenting
plan it shall be presumed the
agreed parenting plan is in the best interest of the child. This
presumption
may be overcome and the court may make a different order if the
court
makes specific findings of fact stating why the agreed parenting
plan is
not in the best interest of the child. If the parties are not in
agreement on
a parenting plan, each party shall submit a proposed parenting
plan to
the court for consideration at such time before the final
hearing as may
be directed by the court.
(e) In entering an original order for
support of a child under this
section, the court may award an additional judgment to reimburse
the
expenses of support and education of the child from the date of
birth to
the date the order is entered. If the determination of paternity is
based
upon a presumption arising under K.S.A. 38-1114 and amendments
thereto, the court shall award an additional judgment to reimburse
all or
part of the expenses of support and education of the child from at
least
the date the presumption first arose to the date the order is
entered,
except that no additional judgment need be awarded for amounts
accrued
under a previous order for the child's support.
(f) In determining the amount to be
paid by a parent for support of
the child and the period during which the duty of support
is owed ordered
in payment and duration of such payments, a court enforcing
the obli-
gation of support shall consider all relevant facts including, but
not limited
to, the following:
(1) The needs of the child.
(2) The standards of living and
circumstances of the parents.
(3) The relative financial means of the
parents.
(4) The earning ability of the
parents.
(5) The need and capacity of the child
for education.
(6) The age of the child.
(7) The financial resources and the
earning ability of the child.
(8) The responsibility of the parents for
the support of others.
(9) The value of services contributed by
the custodial parent both
parents.
(g) The provisions of K.S.A. 23-4,107,
and amendments thereto, shall
apply to all orders of support issued under this section.
(h) An order granting visitation
rights parenting time pursuant to this
section may be enforced in accordance with K.S.A. 23-701, and
amend-
ments thereto, or under the uniform child custody jurisdiction
and en-
forcement act.
Sec. 11. K.S.A. 1999 Supp. 38-1132
is hereby amended to read as
follows: 38-1132. (a) Except as provided in subsection (d), a
parent en-
titled to the custody of a child granted
rights pursuant to subsection (d)
of K.S.A. 38-1121, and amendments thereto, shall give
written notice to
the other parent who has been granted custodial or
visitation rights rights
pursuant to subsection (d) of K.S.A. 38-1121, and amendments
thereto,
not less than 21 30 days prior to:
(1) Changing the residence of the child
to a place outside this state; or
(2) removing the child from this state for
a period of time exceeding 90 days. Such notice shall be sent by
restricted
mail, return receipt requested, to the last known address of the
other
parent.
(b) Failure to give notice as required by
subsection (a) is an indirect
civil contempt punishable as provided by law. In addition, the
court may
assess, against the parent required to give notice, reasonable
attorney fees
and any other expenses incurred by the other parent by reason of
the
failure to give notice.
(c) A change of the residence or the
removal of a child to another
state or removal of a child from this state
for a period of time exceeding
90 days as described in subsection (a) may
be considered a material
change of circumstances which justifies modification of a prior
order of
child support or, custody or parenting
time. In determining any such
motion, the court shall consider all factors the court deems
appropriate
including, but not limited to:
(1) The effect of the move on the best
interests of the child;
(2) the effect of the move on any
party having rights granted pursuant
to subsection (d) of K.S.A. 38-1121, and amendments thereto;
and
(3) the increased cost the move will
impose on any party seeking to
exercise rights granted under subsection (d) of K.S.A. 38-1121,
and
amendments thereto.
(d) A parent entitled to the
custody of a child who has ben granted
rights pursuant to subsection (d) of K.S.A. 38-1121,
and amendments
thereto, shall not be required to give the notice required by this
section
to the other parent when the other parent has been convicted of
any
crime specified in article 34, 35 or 36 of chapter 21 of the Kansas
Statutes
Annotated, and amendments thereto, in which the child is the victim
of
such crime.
(e) This section shall be part of and
supplemental to the Kansas par-
entage act.
Sec. 12. K.S.A. 1999 Supp. 38-1138
is hereby amended to read as
follows: 38-1138. (a) The state registrar of vital statistics, in
conjunction
with the secretary of social and rehabilitation services, shall
review and,
as needed, revise acknowledgment of paternity forms for use under
K.S.A.
38-1130 and 65-2409a, and amendments thereto. The
acknowledgment
of paternity forms shall include or have attached a written
description
pursuant to subsection (b) of the rights and responsibilities of
acknowl-
edging paternity.
(b) A written description of the rights
and responsibilities of acknowl-
edging paternity shall state the following:
(1) An acknowledgment of paternity
creates a permanent father and
child relationship which can only be ended by court order. A person
who
wants to revoke the acknowledgment of paternity must file the
request
with the court before the child is one year old, unless the person
was
under age 18 when the acknowledgment of paternity was signed. A
person
under age 18 when the acknowledgment was signed has until one
year
after his or her 18th birthday to file a request, but if the child
is more
than one year old then, the judge will first consider the child's
best in-
terests.
The person will have to show that the
acknowledgment was based on
fraud, duress (threat) or an important mistake of fact, unless the
request
is filed within 60 days of signing the acknowledgment or before any
court
hearing about the child, whichever is earlier;
(2) both the father and the mother are
responsible for the care and
support of the child. If necessary, this duty may be enforced
through legal
action such as a child support order, an order to pay birth or
other medical
expenses of the child or an order to repay government assistance
pay-
ments for the child's care. A parent's willful failure to support
the parent's
child is a crime;
(3) both the father and the mother have
rights of custody and visi-
tation parenting time with the child unless
a court order changes their
rights. If necessary, custody Custody,
residency and visitation rights
par-
enting time may be spelled out in a court order and
enforced;
(4) both the father and the mother have
the right to consent to med-
ical treatment for the child unless a court order changes those
rights;
(5) the child may inherit from the father
and the father's family or
from the mother and the mother's family. The child may receive
public
benefits, including, but not limited to, social security or private
benefits,
including, but not limited to, insurance or workers compensation
because
of the father-child or mother-child relationship;
(6) the father or the mother may be
entitled to claim the child as a
dependent for tax or other purposes. The father or the mother may
inherit
from the child or the child's descendants; and
(7) each parent has the right to sign or
not sign an acknowledgment
of paternity. Each parent has the right to talk with an attorney
before
signing an acknowledgment of paternity. Each parent has the right
to be
represented by an attorney in any legal action involving paternity
or their
rights or duties as a parent. Usually each person is responsible
for hiring
the person's own attorney.
(c) Any duty to disclose rights or
responsibilities related to signing an
acknowledgment of paternity shall have been met by furnishing the
writ-
ten disclosures of subsection (b). Any duty to disclose orally the
rights or
responsibilities related to signing an acknowledgment of paternity
may be
met by means of an audio recording of the disclosures of subsection
(b).
(d) An acknowledgment of paternity
completed without the written
disclosures of subsection (b) is not invalid solely for that reason
and may
create a presumption of paternity pursuant to K.S.A. 38-1114 and
amend-
ments thereto. Nothing in K.S.A. 1997 Supp. 38-1136 through
38-1138
and amendments thereto shall decrease the validity, force or effect
of an
acknowledgment of paternity executed in this state prior to the
effective
date of this act.
(e) Upon request, the state registrar of
vital statistics shall provide a
certified copy of the acknowledgment of paternity to an office
providing
IV-D program services.
Sec. 13. K.S.A. 1999 Supp.
38-16,119 is hereby amended to read as
follows: 38-16,119. (a) A party entitled to receive child support
under an
order issued pursuant to the Kansas juvenile justice code may file
with
the clerk of the district court in the county in which the judgment
was
rendered the original child support order and the original income
with-
holding order, if any. If the original child support or income
withholding
order is unavailable for any reason, a certified or authenticated
copy of
the order may be substituted. The clerk of the district court shall
number
the child support order as a case filed under chapter 60 of the
Kansas
Statutes Annotated and enter the numbering of the case on the
appear-
ance docket of the case. Registration of a child support order
under this
section shall be without cost or docket fee.
(b) If the number assigned to a case
under the Kansas juvenile justice
code appears in the caption of a document filed pursuant to this
section,
the clerk of the district court may obliterate that number and
replace it
with the new case number assigned pursuant to this section.
(c) The filing of the child support order
shall constitute registration
under this section. Upon registration of the child support order,
all mat-
ters related to that order, including but not limited to
modification of the
order, shall proceed under the new case number. Registration of a
child
support order under this section does not confer jurisdiction in
the reg-
istration case for custody or visitation
parenting time issues.
(d) The party registering a child support
order shall serve a copy of
the registered child support order and income withholding order, if
any,
upon the interested parties by first-class mail. The party
registering the
child support order shall file, in the official file for each child
affected,
either a copy of the registered order showing the new case number
or a
statement that includes the caption, new case number and date of
reg-
istration of the child support order.
(e) If the commissioner of juvenile
justice is entitled to receive pay-
ment under an order which may be registered under this section,
the
county or district attorney shall take the actions permitted or
required in
subsections (a) and (d) on behalf of the commissioner, unless
otherwise
requested by the commissioner.
(f) A child support order registered
pursuant to this section shall have
the same force and effect as an original child support order
entered under
chapter 60 of the Kansas Statutes Annotated including, but not
limited
to:
(1) The registered order shall become a
lien on the real estate of the
judgment debtor in the county from the date of registration;
(2) execution or other action to enforce
the registered order may be
had from the date of registration;
(3) the registered order may itself be
registered pursuant to any law,
including but not limited to the revised uniform reciprocal
enforcement
of support act (1968);
(4) if any installment of support due
under the registered order be-
comes a dormant judgment, it may be revived pursuant to K.S.A.
60-2404
and amendments thereto; and
(5) the court shall have continuing
jurisdiction over the parties and
subject matter and, except as otherwise provided in subsection (g),
may
modify any prior support order when a material change in
circumstances
is shown irrespective of the present domicile of the child or
parents. The
court may make a modification of child support retroactive to a
date at
least one month after the date that the motion to modify was filed
with
the court.
(g) If a motion to modify the child
support order is filed within three
months after the date of registration pursuant to this section; if
no motion
to modify the order has previously been heard and if the moving
party
shows that the support order was based upon one or more of the
pre-
sumptions provided in K.S.A. 38-16,117, and amendments thereto,
or
upon a stipulation pursuant to subsection (c) of K.S.A. 38-16,117,
and
amendments thereto, the court shall apply the Kansas child
support
guidelines adopted pursuant to K.S.A. 20-165 and amendments
thereto
without requiring any party to show that a material change of
circum-
stances has occurred, without regard to any previous presumption or
stip-
ulation used to determine the amount of the child support order,
and
irrespective of the present domicile of the child or parents.
Nothing in
this subsection shall prevent or limit enforcement of the support
order
during the three months after the date of registration.
Sec. 14. K.S.A. 1999 Supp. 60-1607
is hereby amended to read as
follows: 60-1607. (a) Permissible orders. After a petition
for divorce, an-
nulment or separate maintenance has been filed, and during the
pen-
dency of the action prior to final judgment the judge assigned to
hear the
action may, without requiring bond, make and enforce by
attachment,
orders which:
(1) Jointly restrain the parties with
regard to disposition of the prop-
erty of the parties and provide for the use, occupancy, management
and
control of that property;
(2) restrain the parties from molesting
or interfering with the privacy
or rights of each other;
(3) provide for the legal custody
of and residency of and parenting
time with the minor children and the support, if necessary,
of either party
and of the minor children during the pendency of the
action.;
(4) require mediation between the
parties on issues, including, but
not limited to, child custody, residency, division of property,
parenting
time and development of a parenting plan;
(4) (5) make
provisions, if necessary, for the expenses of the suit,
including reasonable attorney's fees, that will insure to either
party effi-
cient preparation for the trial of the case; or
(5) (6) require
an investigation by court service officers into any issue
arising in the action.
(b) Ex parte orders. Orders
authorized by subsections (a)(1), (2)
and,
(3) and (4) may be entered after ex parte hearing
upon compliance with
rules of the supreme court, but except that
no ex parte order shall have
the effect of changing the custody
residency of a minor child from the
parent who has had the sole de facto
custody residency of the child to the
other parent unless there is sworn testimony to support a showing
of
extraordinary circumstances. If an interlocutory order is issued
ex parte,
the court shall hear a motion to vacate or modify the order within
15 days
of the date that on which a party requests
a hearing whether to vacate or
modify the order. In the absence, disability, or disqualification
of the
judge assigned to hear the action, any other judge of the district
court
may make any order authorized by this section, including vacation
or
modification or any order issued by the judge assigned to hear the
action.
(c) Support orders. (1) An order
of support obtained pursuant to this
section may be enforced by an order of garnishment as provided in
this
section.
(2) No order of garnishment shall be
issued under this section unless:
(A) Ten or more days have elapsed since the order of support was
served
upon the party required to pay the support, and (B) the order of
support
contained a notice that the order of support may be enforced by
garnish-
ment and that the party has a right to request an opportunity for a
hearing
to contest the issuance of an order of garnishment, if the hearing
is re-
quested by motion filed within five days after service of the order
of
support upon the party. If a hearing is requested, the court shall
hold the
hearing within five days after the motion requesting the hearing is
filed
with the court or at a later date agreed to by the parties.
(3) No bond shall be required for the
issuance of an order of gar-
nishment pursuant to this section. Except as provided in this
section,
garnishments authorized by this section shall be subject to the
procedures
and limitations applicable to other orders of garnishment
authorized by
law.
(4) A party desiring to have the order of
garnishment issued shall file
an affidavit with the clerk of the district court stating that:
(A) The order of support contained the
notice required by this sub-
section;
(B) ten or more days have elapsed since
the order of support was
served upon the party required to pay the support; and
(C) either no hearing was requested on
the issuance of an order of
garnishment within the five days after service of the order of
support
upon the party required to pay the same or a hearing was requested
and
held and the court did not prohibit the issuance of an order of
garnish-
ment.
(d) If an interlocutory order for
legal custody, residency, or parenting
time is sought, the party seeking such order shall file a
proposed tempo-
rary parenting plan as provided by section 25, and amendments
thereto,
at the time such order is sought. If any motion is filed to
modify any such
interlocutory orders, or in opposition to a request for issuance
of inter-
locutory orders, that party shall attach to such motion or
opposition a
proposed alternative parenting plan.
(d)
(e) Service of process. Service of process
served under subsection
(a)(1) and (2) shall be by personal service and not by certified
mail return
receipt requested.
Sec. 15. K.S.A. 1999 Supp. 60-1610
is hereby amended to read as
follows: 60-1610. A decree in an action under this article may
include
orders on the following matters:
(a) Minor children. (1) Child
support and education. The court shall
make provisions for the support and education of the minor
children. The
court may modify or change any prior order, including any order
issued
in a title IV-D case, within three years of the date of the
original order
or a modification order, when a material change in circumstances
is
shown, irrespective of the present domicile of the child or the
parents. If
more than three years has passed since the date of the original
order or
modification order, a material change in circumstance need not be
shown.
The court may make a modification of child support retroactive to a
date
at least one month after the date that the motion to modify was
filed with
the court. Any increase in support ordered effective prior to the
date the
court's judgment is filed shall not become a lien on real property
pursuant
to K.S.A. 60-2202 and amendments thereto. Regardless of the type
of
custodial arrangement ordered by the court, the court may order the
child
support and education expenses to be paid by either or both parents
for
any child less than 18 years of age, at which age the support shall
ter-
minate unless: (A) The parent or parents agree, by written
agreement
approved by the court, to pay support beyond the time the child
reaches
18 years of age; (B) the child reaches 18 years of age before
completing
the child's high school education in which case the support shall
not ter-
minate automatically, unless otherwise ordered by the court, until
June
30 of the school year during which the child became 18 years of age
if
the child is still attending high school; or (C) the child is still
a bona fide
high school student after June 30 of the school year during which
the
child became 18 years of age, in which case the court, on motion,
may
order support to continue through the school year during which the
child
becomes 19 years of age so long as the child is a bona fide high
school
student and the parents jointly participated or knowingly
acquiesced in
the decision which delayed the child's completion of high school.
The
court, in extending support pursuant to subsection (a)(1)(C), may
impose
such conditions as are appropriate and shall set the child support
utilizing
the guideline table category for 16-year through 18-year old
children.
Provision for payment of support and educational expenses of a
child after
reaching 18 years of age if still attending high school shall apply
to any
child subject to the jurisdiction of the court, including those
whose sup-
port was ordered prior to July 1, 1992. If an agreement approved by
the
court prior to July 1, 1988, provides for termination of support
before the
date provided by subsection (a)(1)(B), the court may review and
modify
such agreement, and any order based on such agreement, to extend
the
date for termination of support to the date provided by
subsection
(a)(1)(B). If an agreement approved by the court prior to July 1,
1992,
provides for termination of support before the date provided by
subsec-
tion (a)(1)(C), the court may review and modify such agreement, and
any
order based on such agreement, to extend the date for termination
of
support to the date provided by subsection (a)(1)(C). For purposes
of this
section, ``bona fide high school student'' means a student who is
enrolled
in full accordance with the policy of the accredited high school in
which
the student is pursuing a high school diploma or a graduate
equivalency
diploma (GED). In determining the amount to be paid for child
support,
the court shall consider all relevant factors, without regard to
marital
misconduct, including the financial resources and needs of both
parents,
the financial resources and needs of the child and the physical and
emo-
tional condition of the child. Until a child reaches 18 years of
age, the
court may set apart any portion of property of either the husband
or wife,
or both, that seems necessary and proper for the support of the
child.
Every order requiring payment of child support under this section
shall
require that the support be paid through the clerk of the district
court or
the court trustee except for good cause shown. If the divorce
decree of
the parties provides for an abatement of child support during
any period
provided in such decree, the child support such nonresidential
parent
owes for such period shall abate during such period of time,
except that
if the residential parent shows that the criteria for the
abatement has not
been satisfied there shall not be an abatement of such child
support.
(2) Child custody and residency.
(A) Changes in custody. Subject to
the provisions of the uniform child custody jurisdiction and
enforcement
act (K.S.A. 38-1301 et
seq., and amendments thereto),
(sections 31
through 72, and amendments thereto), the court may change or
modify
any prior order of custody, residency, visitation and parenting
time, when
a material change of circumstances is shown, but no ex parte order
shall
have the effect of changing the custody
residency of a minor child from
the parent who has had the sole de facto custody
residency of the child
to the other parent unless there is sworn testimony to support a
showing
of extraordinary circumstances. If an interlocutory order is issued
ex
parte, the court shall hear a motion to vacate or modify the order
within
15 days of the date that a party requests a hearing whether to
vacate or
modify the order.
(B) Examination of parties. The
court may order physical or mental
examinations of the parties if requested pursuant to K.S.A. 60-235
and
amendments thereto.
(3) Child custody or residency
criteria. The court shall determine
custody or residency of a child in accordance with the best
interests of
the child.
(A) If the parties have a written
agreement concerning the custody
or residency of their minor child, it is
entered into a parenting plan, it
shall be presumed that the agreement is in the best
interests of the child.
This presumption may be overcome and the court may make a
different
order if the court makes specific findings of fact stating why the
agree-
ment agreed parenting plan is not in the
best interests of the child.
(B) In determining the issue of
child custody or, residency
of a child
and parenting time, the court shall consider all relevant
factors, including
but not limited to:
(i) The length of time that the child has
been under the actual care
and control of any person other than a parent and the
circumstances
relating thereto;
(ii) the desires of the child's parents
as to custody or residency;
(iii) the desires of the child as to the
child's custody or residency;
(iv) the interaction and
interrelationship of the child with parents,
siblings and any other person who may significantly affect the
child's best
interests;
(v) the child's adjustment to the child's
home, school and community;
(vi) the willingness and ability of each
parent to respect and appre-
ciate the bond between the child and the other parent and to allow
for a
continuing relationship between the child and the other parent;
and
(vii) evidence of spousal abuse.
Neither parent shall be considered to have a
vested interest in the
custody or residency of any child as against the other parent,
regardless
of the age of the child, and there shall be no presumption that it
is in the
best interests of any infant or young child to give custody or
residency to
the mother.
(4) Types of legal custodial
arrangements. Subject to the provisions
of this article, the court may make any order relating to custodial
arrange-
ments which is in the best interests of the child. The order shall
include,
but not be limited to, provide one of the
following legal custody arrange-
ments, in the order of preference:
(A) Joint legal custody.
The court may place the order the joint
legal
custody of a child with both parties on a shared or
joint-custody basis. In
that event, the parties shall have equal rights to make decisions
in the
best interests of the child under their custody.
When a child is placed in
the joint custody of the child's parents, the court may
further determine
that the residency of the child shall be divided either in
an equal manner
with regard to time of residency or on the basis of a
primary residency
arrangement for the child. The court, in its discretion,
may require the
parents to submit a plan for implementation of a joint
custody order upon
finding that both parents are suitable parents or the
parents, acting in-
dividually or in concert, may submit a custody
implementation plan to
the court prior to issuance of a custody decree. If the
court does not order
joint custody, it shall include in the record the specific
findings of fact
upon which the order for custody other than joint custody
is based.
(B) Sole legal custody. The court
may place the order the sole legal
custody of a child with one parent, and the other parent
shall be the
noncustodial parent. The custodial parent shall have the
right to make
decisions in the best interests of the child, subject to
the visitation rights
of the noncustodial parent. of the parties when
the court finds that it is
not in the best interests of the child that both of the parties
have equal
rights to make decisions pertaining to the child. If the court
does not order
joint legal custody, the court shall include on the record
specific findings
of fact upon which the order for sole legal custody is based.
The award
of sole legal custody to one parent shall not deprive the other
parent of
access to information regarding the child unless the court shall
so order,
stating the reasons for that determination.
(C) Divided
custody. In an exceptional case, the court may
divide the
custody of two or more children between the
parties.
(5) Types of residential
arrangements. After making a determination
of the legal custodial arrangements, the court shall determine
the resi-
dency of the child from the following options, which arrangement
the
court must find to be in the best interest of the child. The
parties shall
submit to the court either an agreed parenting plan or, in the
case of
dispute, proposed parenting plans for the court's consideration.
Such op-
tions are:
(A) Residency. The court may
order a residential arrangement in
which the child resides with one or both parents on a basis
consistent
with the best interests of the child.
(B) Divided residency. In an
exceptional case, the court may order a
residential arrangement in which one or more children reside
with each
parent and have parenting time with the other.
(D)
(C) Nonparental custody
residency. If during the proceedings the
court determines that there is probable cause to believe
that: (i) the child
is a child in need of care as defined by subsections (a)(1), (2) or
(3) of
K.S.A. 38-1502 and amendments thereto; (ii) or
that neither parent is fit
to have custody; or (iii) the child is currently residing
with such child's
grandparent, grandparents, aunt or uncle and such relative
has had actual
physical custody of such child for a significant length of
time residency,
the court may award temporary custody
residency of the child to such
relative a grandparent, aunt, uncle or adult
sibling, or, another person or
agency if the court finds the award of custody to such
relative, another
person or agency is in the best interests of the child. In making
such a
custody residency order, the court shall
give preference, to the extent that
the court finds it is in the best interests of the child, first to
awarding
such custody residency to a relative of the
child by blood, marriage or
adoption and second to awarding such custody
residency to another per-
son with whom the child has close emotional ties. The court may
make
temporary orders for care, support, education and visitation that
it con-
siders appropriate. Temporary custody
residency orders are to be entered
in lieu of temporary orders provided for in K.S.A. 38-1542 and
38-1543,
and amendments thereto, and shall remain in effect until there is a
final
determination under the Kansas code for care of children. An award
of
temporary custody residency under this
paragraph shall not terminate
parental rights nor give the court the authority to consent to the
adoption
of the child. When the court enters orders awarding temporary
custody
residency of the child to an agency or a person other than
the parent but
not a relative as described in subpart (iii), the
court shall refer a transcript
of the proceedings to the county or district attorney. The county
or district
attorney shall file a petition as provided in K.S.A. 38-1531 and
amend-
ments thereto and may request termination of parental rights
pursuant
to K.S.A. 38-1581 and amendments thereto. The costs of the
proceedings
shall be paid from the general fund of the county. When a final
deter-
mination is made that the child is not a child in need of care, the
county
or district attorney shall notify the court in writing and the
court, after a
hearing, shall enter appropriate custody orders pursuant to this
section.
If the same judge presides over both proceedings, the notice is not
re-
quired. Any disposition pursuant to the Kansas code for care of
children
shall be binding and shall supersede any order under this section.
When
the court enters orders awarding temporary custody of the
child to a
relative as described in subpart (iii), the court shall
annually review the
temporary custody to evaluate whether such custody is still
in the best
interests of the child. If the court finds such custody is
in the best interests
of the child, such custody shall continue. If the court
finds such custody
is not in the best interests of the child, the court shall
determine the
custody pursuant to this section.
(b) Financial matters. (1)
Division of property. The decree shall di-
vide the real and personal property of the parties, including any
retire-
ment and pension plans, whether owned by either spouse prior to
mar-
riage, acquired by either spouse in the spouse's own right after
marriage
or acquired by the spouses' joint efforts, by: (A) a division of
the property
in kind; (B) awarding the property or part of the property to one
of the
spouses and requiring the other to pay a just and proper sum; or
(C)
ordering a sale of the property, under conditions prescribed by the
court,
and dividing the proceeds of the sale. Upon request, the trial
court shall
set a valuation date to be used for all assets at trial, which may
be the
date of separation, filing or trial as the facts and circumstances
of the case
may dictate. The trial court may consider evidence regarding
changes in
value of various assets before and after the valuation date in
making the
division of property. In dividing defined-contribution types of
retirement
and pension plans, the court shall allocate profits and losses on
the non-
participant's portion until date of distribution to that
nonparticipant. In
making the division of property the court shall consider the age of
the
parties; the duration of the marriage; the property owned by the
parties;
their present and future earning capacities; the time, source and
manner
of acquisition of property; family ties and obligations; the
allowance of
maintenance or lack thereof; dissipation of assets; the tax
consequences
of the property division upon the respective economic circumstances
of
the parties; and such other factors as the court considers
necessary to
make a just and reasonable division of property. The decree shall
provide
for any changes in beneficiary designation on: (A) Any insurance or
an-
nuity policy that is owned by the parties, or in the case of group
life
insurance policies, under which either of the parties is a covered
person;
(B) any trust instrument under which one party is the grantor or
holds a
power of appointment over part or all of the trust assets, that may
be
exercised in favor of either party; or (C) any transfer on death or
payable
on death account under which one or both of the parties are owners
or
beneficiaries. Nothing in this section shall relieve the parties of
the ob-
ligation to effectuate any change in beneficiary designation by the
filing
of such change with the insurer or issuer in accordance with the
terms
of such policy.
(2) Maintenance. The decree may
award to either party an allowance
for future support denominated as maintenance, in an amount the
court
finds to be fair, just and equitable under all of the
circumstances. The
decree may make the future payments modifiable or terminable
under
circumstances prescribed in the decree. The court may make a
modifi-
cation of maintenance retroactive to a date at least one month
after the
date that the motion to modify was filed with the court. In any
event, the
court may not award maintenance for a period of time in excess of
121
months. If the original court decree reserves the power of the
court to
hear subsequent motions for reinstatement of maintenance and such
a
motion is filed prior to the expiration of the stated period of
time for
maintenance payments, the court shall have jurisdiction to hear a
motion
by the recipient of the maintenance to reinstate the maintenance
pay-
ments. Upon motion and hearing, the court may reinstate the
payments
in whole or in part for a period of time, conditioned upon any
modifying
or terminating circumstances prescribed by the court, but the
reinstate-
ment shall be limited to a period of time not exceeding 121 months.
The
recipient may file subsequent motions for reinstatement of
maintenance
prior to the expiration of subsequent periods of time for
maintenance
payments to be made, but no single period of reinstatement ordered
by
the court may exceed 121 months. Maintenance may be in a lump
sum,
in periodic payments, on a percentage of earnings or on any other
basis.
At any time, on a hearing with reasonable notice to the party
affected,
the court may modify the amounts or other conditions for the
payment
of any portion of the maintenance originally awarded that has not
already
become due, but no modification shall be made without the consent
of
the party liable for the maintenance, if it has the effect of
increasing or
accelerating the liability for the unpaid maintenance beyond what
was
prescribed in the original decree. Every order requiring payment of
main-
tenance under this section shall require that the maintenance be
paid
through the clerk of the district court or the court trustee except
for good
cause shown.
(3) Separation agreement. If the
parties have entered into a separa-
tion agreement which the court finds to be valid, just and
equitable, the
agreement shall be incorporated in the decree. A separation
agreement
may include provisions relating to a parenting plan. The
provisions of the
agreement on all matters settled by it shall be confirmed in the
decree
except that any provisions for the custody
relating to the legal custody,
residency, visitation parenting time, support or education
of the minor
children shall be subject to the control of the court in accordance
with
all other provisions of this article. Matters settled by an
agreement in-
corporated in the decree, other than matters pertaining to the
legal cus-
tody, residency, visitation, parenting time, support or
education of the
minor children, shall not be subject to subsequent modification by
the
court except: (A) As prescribed by the agreement or (B) as
subsequently
consented to by the parties.
(4) Costs and fees. Costs and
attorney fees may be awarded to either
party as justice and equity require. The court may order that the
amount
be paid directly to the attorney, who may enforce the order in the
attor-
ney's name in the same case.
(c) Miscellaneous matters. (1)
Restoration of name. Upon the request
of a spouse, the court shall order the restoration of that spouse's
maiden
or former name.
(2) Effective date as to
remarriage. Any marriage contracted by a
party, within or outside this state, with any other person before a
judg-
ment of divorce becomes final shall be voidable until the decree of
divorce
becomes final. An agreement which waives the right of appeal from
the
granting of the divorce and which is incorporated into the decree
or
signed by the parties and filed in the case shall be effective to
shorten
the period of time during which the remarriage is voidable.
Sec. 16. K.S.A. 60-1612 is hereby
amended to read as follows: 60-
1612. (a) If a party fails to comply with a provision of a decree,
temporary
order or injunction issued under K.S.A. 60-1601 et seq., the
obligation of
the other party to make payments for support or maintenance or to
permit
visitation or parenting time is not suspended, but the other
party may
request by motion that the court grant an appropriate order.
(b) Motions to modify
visitation legal custody, residency,
visitation
rights or parenting time or custody in
proceedings where support obli-
gations are enforced under part D of title IV of the federal social
security
act (42 USC § 651 et seq.), as amended, shall be
considered proceedings
in connection with the administration of the title IV-D program for
the
sole purpose of disclosing information necessary to obtain service
of pro-
cess on the parent with physical custody of the child.
Sec. 17. K.S.A. 60-1614 is hereby
amended to read as follows: 60-
1614. The court may interview the minor children in chambers to
assist
the court in determining legal custody, residency,
visitation rights and
visitation parenting time. The court may
permit counsel to be present at
the interviews. Upon request of any party, the court shall cause a
record
of the interview to be made as part of the record in the case.
Sec. 18. K.S.A. 60-1615 is hereby
amended to read as follows: 60-
1615. (a) Investigation and report. In
contested any proceeding in which
legal custody proceedings, residency,
visitation rights or parenting time
are contested, the court may order an investigation and
report concerning
custodial arrangements for the child the
appropriate legal custody, resi-
dency, visitation rights and parenting time to be granted to the
parties.
The investigation and report may be made by court services officers
or
any consenting person or agency employed by the court for that
purpose.
The court may use the department of social and rehabilitation
services to
make the investigation and report if no other source is available
for that
purpose. The costs for making the investigation and report may be
as-
sessed as court costs in the case as provided in article 20 of
chapter 60
of the Kansas Statutes Annotated, and amendments thereto.
(b) Consultation. In preparing the
report concerning a child, the in-
vestigator may consult any person who may have information about
the
child and the potential legal custodial arrangements. Upon
order of the
court, the investigator may refer the child to professional
personnel other
professionals for diagnosis. The investigator may consult
with and obtain
information from medical, psychiatric or other expert persons who
have
served the child in the past. If the requirements of subsection (c)
are
fulfilled, the investigator's report may be received in evidence at
the hear-
ing.
(c) Use of report and investigator's
testimony. The court shall make
the investigator's report available prior to the hearing to counsel
or to any
party not represented by counsel. Upon motion of either party,
the report
may be made available to a party represented by counsel, unless
the court
finds that such distribution would be harmful to either party,
the child
or other witnesses. Any party to the proceeding may call the
investigator
and any person whom the investigator has consulted for
cross-examina-
tion. In consideration of the mental health or best interests of
the child,
the court may approve a stipulation that the interview records not
be
divulged to the parties.
Sec. 19. K.S.A. 1999 Supp. 60-1616
is hereby amended to read as
follows: 60-1616. (a) Parents. A parent not granted
custody or residency
of the child is entitled to reasonable
visitation rights parenting time unless
the court finds, after a hearing, that visitation
the exercise of parenting
time would seriously endanger
seriously the child's physical, mental,
moral or emotional health.
(b) Grandparents and stepparents.
Grandparents and stepparents
may be granted visitation rights.
(c) Modification. The court may
modify an order granting or denying
parenting time or visitation rights whenever modification
would serve the
best interests of the child.
(d) Enforcement of rights. An
order granting visitation rights or par-
enting time to a parent pursuant to this
section may be enforced in ac-
cordance with the uniform child custody jurisdiction and
enforcement act,
or K.S.A. 23-701, and amendments thereto.
(e) Repeated denial of rights,
effect. Repeated unreasonable denial of
or interference with visitation rights or parenting time
granted to a parent
pursuant to this section may be considered a material change of
circum-
stances which justifies modification of a prior order of
child legal custody,
residency, visitation or parenting time.
(f) Repeated
child support misuse, effect. Repeated child
support mis-
use may be considered a material change of circumstances
which justifies
modification of a prior order of child
custody.
(g) (f) Court
ordered exchange or visitation parenting
time at a child
exchange and visitation parenting
time center. (1) The court may order
exchange or visitation to take place at a child exchange and
visitation
center, as established in K.S.A. 75-720 and amendments
thereto.
(2) A parent Any
party may petition the court to modify an order
granting visitation rights or parenting time
rights to require that the
exchange or transfer of children for visitation or
visitation parenting time
take place at a child exchange and visitation center, as
established in
K.S.A. 75-720 and amendments thereto. The court may modify
an order
granting visitation rights visitation
whenever modification would serve the
best interests of the child.
Sec. 20. K.S.A. 60-1617 is hereby
amended to read as follows: 60-
1617. (a) Family counseling. Upon motion by any
party or on the court's
own motion, the court may order At any time prior
to or subsequent to
the alteration of the parties' marital status that
the the court may order
that any party or parties and any of their children be
interviewed by a
psychiatrist, licensed psychologist or other trained professional
in family
counseling, approved by the court, for the purpose of
determining
whether it is in the best interests of any of the parties' children
that the
parties and any of their children have counseling with
regard to regarding
matters of legal custody and,
residency, visitation or parenting time. The
court shall receive the written opinion of the professional, and
the court
shall make the opinion available to counsel upon request.
Counsel may
examine as a witness any as provided by K.S.A.
60-1615, and amendments
thereto. Any professional consulted by the court under this
section may
be examined as a witness. If the opinion of the professional
is that coun-
seling is in the best interests of any of the children, the court
may order
the parties and any of the children to obtain counseling. Neither
party
shall be required to obtain counseling pursuant to this section if
the party
objects thereto because the counseling conflicts with sincerely
held relig-
ious tenets and practices to which any party is an adherent.
(b) Costs. The costs of the
counseling shall be taxed to either party
as equity and justice require.
Sec. 21. K.S.A. 1999 Supp. 60-1620
is hereby amended to read as
follows: 60-1620. (a) Except as provided in subsection (d), a
parent en-
titled to the entitled to legal custody
of or residency of or parenting time
with a child pursuant to K.S.A. 60-1610 and amendments
thereto shall
give written notice to the other parent not less than
21 30 days prior to:
(1) Changing the residence of the child to a place
outside this state; or
(2) removing the child from this state for a period of time
exceeding 90
days. Such notice shall be sent by restricted mail, return receipt
re-
quested, to the last known address of the other parent.
(b) Failure to give notice as required by
subsection (a) is an indirect
civil contempt punishable as provided by law. In addition, the
court may
assess, against the parent required to give notice, reasonable
attorney fees
and any other expenses incurred by the other parent by reason of
the
failure to give notice.
(c) A change of the residence or the
removal of a child to another
state or removal of a child from this state for a period of
time exceeding
90 days as described in subsection (a) may
be considered a material
change of circumstances which justifies modification of a prior
order of
legal custody, residency, child support or
custody or parenting time. In
determining any motion seeking a modification of a prior order
based on
change of residence or removal as described in (a), the court
shall consider
all factors the court deems appropriate including, but not
limited to: (1)
The effect of the move on the best interests of the child; (2)
the effect of
the move on any party having rights granted pursuant to K.S.A.
60-1610,
and amendments thereto; and (3) the increased cost the move will
impose
on any party seeking to exercise rights granted under K.S.A.
60-1610, and
amendments thereto.
(d) A parent entitled to the legal
custody or residency of a child pur-
suant to K.S.A. 60-1610 and amendments thereto shall not be
required
to give the notice required by this section to the other parent
when the
other parent has been convicted of any crime specified in article
34, 35
or 36 of chapter 21 of the Kansas Statutes Annotated in which the
child
is the victim of such crime.
Sec. 22. K.S.A. 1999 Supp. 60-1621
is hereby amended to read as
follows: 60-1621. (a) No postdivorce
post-decree motion petitioning for a
change in child legal custody,
residency, visitation rights or parenting
time, or for a modification of child support
or a change in visitation shall
be filed or docketed in the district court without payment of a
docket fee
in the amount of $20 to the clerk of the district court.
(b) A poverty affidavit may be filed in
lieu of a docket fee as estab-
lished in K.S.A. 60-2001, and amendments thereto.
(c) The docket fee shall be the only
costs assessed in each case for
services of the clerk of the district court and the sheriff. The
docket fee
shall be disbursed in accordance with subsection (f) of K.S.A.
20-362, and
amendments thereto.
Sec. 23. K.S.A. 1999 Supp. 60-3106
is hereby amended to read as
follows: 60-3106. (a) Within 20 days of the filing of a petition
under this
act a hearing shall be held at which the plaintiff must prove the
allegation
of abuse by a preponderance of the evidence and the defendant
shall
have an opportunity to present evidence on the defendant's behalf.
Upon
the filing of the petition, the court shall set the case for
hearing. At the
hearing, the court shall advise the parties of the right to be
represented
by counsel.
(b) Prior to the hearing on the petition
and upon a finding of good
cause shown, the court on motion of a party may enter such
temporary
relief orders in accordance with subsection (a)(1), (2), (4) or (5)
of K.S.A.
60-3107 and amendments thereto, or any combination thereof, as
it
deems necessary to protect the plaintiff or minor children from
abuse.
Temporary orders may be granted ex parte. Immediate and
present dan-
ger of abuse to the plaintiff or minor children shall constitute
good cause
for purposes of this section. No temporary order shall have the
effect of
modifying an existing order granting legal custody,
residency, visitation
or visitation parenting time
order unless there is sworn testimony at a
hearing to support a showing of good cause.
(c) If a hearing under subsection (a) is
continued, the court may make
or extend such temporary orders under subsection (b) as it deems
nec-
essary.
Sec. 24. K.S.A. 1999 Supp. 60-3107
is hereby amended to read as
follows: 60-3107. (a) The court shall be empowered to approve any
con-
sent agreement to bring about a cessation of abuse of the plaintiff
or
minor children or grant any of the following orders:
(1) Restraining the parties from abusing,
molesting or interfering
with the privacy or rights of each other or of any minor children
of the
parties. Such order shall contain a statement that if such order is
violated,
such violation may constitute assault as provided in K.S.A.
21-3408, and
amendments thereto, battery as provided in K.S.A. 21-3412, and
amend-
ments thereto, and violation of a protective order as provided in
K.S.A.
1998 1999 Supp. 21-3843, and amendments
thereto.
(2) Granting possession of the residence
or household to a party to
the exclusion of the other party, and further restraining the party
not
granted possession from entering or remaining upon or in such
residence
or household, subject to the limitation of subsection (c). Such
order shall
contain a statement that if such order is violated, such violation
shall
constitute criminal trespass as provided in subsection (c) of
K.S.A. 21-
3721, and amendments thereto, and violation of a protective order
as
provided in K.S.A. 1998 1999 Supp. 21-3843,
and amendments thereto.
The court may grant an order, which shall expire 60 days following
the
date of issuance, restraining the party not granted possession from
can-
celling utility service to the residence or household.
(3) Requiring a party to provide
suitable, alternate housing for such
party's spouse and any minor children of the parties.
(4) Awarding temporary custody and
residency and establishing tem-
porary visitation rights parenting time
with regard to minor children.
(5) Ordering a law enforcement officer to
evict a party from the res-
idence or household.
(6) Ordering support payments by a party
for the support of a party's
minor child or a party's spouse. Such support orders shall remain
in effect
until modified or dismissed by the court or until expiration and
shall be
for a fixed period of time not to exceed one year. On the motion of
the
plaintiff, the court may extend the effect of such order for 12
months.
(7) Awarding costs and attorney fees to
either party.
(8) Making provision for the possession
of personal property of the
parties and ordering a law enforcement officer to assist in
securing pos-
session of that property, if necessary.
(9) Requiring the person against whom the
order is issued to seek
counseling to aid in the cessation of abuse.
(b) Any order entered under the
protection from abuse act shall not
be subject to modification on ex parte application or on motion for
tem-
porary orders in any action filed pursuant to K.S.A. 60-1601 et
seq., or
K.S.A. 38-1101 et seq., and amendments thereto.
Orders previously issued
in an action filed pursuant to K.S.A. 60-1601 et seq., or
K.S.A. 38-1101
et seq., and amendments thereto, shall be subject to
modification under
the protection from abuse act only as to those matters subject to
modi-
fication by the terms of K.S.A. 60-1610 et seq., and
amendments thereto,
and on sworn testimony to support a showing of good cause.
Immediate
and present danger of abuse to the plaintiff or minor children
shall con-
stitute good cause. If an action is filed pursuant to K.S.A.
60-1610 et seq.,
or K.S.A. 38-1101 et seq., and amendments thereto,
during the pendency
of a proceeding filed under the protection from abuse act or while
an
order issued under the protection from abuse act is in effect, the
court,
on final hearing or on agreement of the parties, may issue final
orders
authorized by K.S.A. 60-1610 and amendments thereto, that are
incon-
sistent with orders entered under the protection from abuse act.
Any
inconsistent order entered pursuant to this subsection shall be
specific in
its terms, reference the protection from abuse order and parts
thereof
being modified and a copy thereof shall be filed in both actions.
The court
shall consider whether the actions should be consolidated in
accordance
with K.S.A. 60-242 and amendments thereto.
(c) If the parties to an action under the
protection from abuse act are
not married to each other and one party owns the residence or
household,
the court shall not have the authority to grant possession of the
residence
or household under subsection (a)(2) to the exclusion of the party
who
owns it.
(d) Subject to the provisions of
subsections (b) and (c), a protective
order or approved consent agreement shall remain in effect until
modified
or dismissed by the court and shall be for a fixed period of time
not to
exceed one year, except that, on motion of the plaintiff, such
period may
be extended for one additional year.
(e) The court may amend its order or
agreement at any time upon
motion filed by either party.
(f) No order or agreement under the
protection from abuse act shall
in any manner affect title to any real property.
(g) If a person enters or remains on
premises or property violating
an order issued pursuant to subsection (a)(2), such violation shall
consti-
tute criminal trespass as provided in subsection (c) of K.S.A.
21-3721, and
amendments thereto, and violation of a protective order as provided
in
K.S.A. 1998 Supp. 21-3843, and amendments thereto. If a person
abuses,
molests or interferes with the privacy or rights of another
violating an
order issued pursuant to subsection (a)(1), such violation may
constitute
assault as provided in K.S.A. 21-3408, and amendments thereto,
battery
as provided in K.S.A. 21-3412, and amendments thereto, and
violation of
a protective order as provided in K.S.A. 1998 Supp. 21-3843, and
amend-
ments thereto.
New Sec. 25. (a) ``Temporary
parenting plan'' means an agreement
or order issued defining the legal custody, residency and parenting
time
to be exercised by parents with regard to a child between the time
of
filing of a matter in which a parenting plan may be entered, and
any other
provisions regarding the child's care which may be in the best
interest of
the child, until a final order is issued.
(b) ``Permanent parenting plan'' means an
agreement between par-
ents which is incorporated into an order at a final hearing or an
order or
decree issued at a final hearing without agreement that establishes
legal
custody, residency, parenting time and other matters regarding a
child
custody arrangement in a matter in which a parenting plan may be
en-
tered.
(c) ``Legal custody'' means the
allocation of parenting responsibilities
between parents, or any person acting as a parent, including
decision
making rights and responsibilities pertaining to matters of child
health,
education and welfare.
New Sec. 26. (a) The court may
enter a temporary parenting plan in
any case in which temporary orders relating to child custody is
authorized.
(b) If the court deems it appropriate, a
temporary parenting plan
approved by the court may include one or more of the following
provi-
sions regarding children involved in the matter before the
court:
(1) Designation of the temporary legal
custody of the child;
(2) designation of a temporary residence
for the child;
(3) allocation of parental rights and
responsibilities regarding matters
pertaining to the child's health, education and welfare;
(4) a schedule for the child's time with
each parent, when appropri-
ate.
(c) A parent seeking a temporary order in
which matters of child
custody, residency, or parenting time are included shall file a
proposed
temporary parenting plan contemporaneous with any request for
issuance
of such temporary orders, which plan shall be served with any such
tem-
porary orders.
(d) If the parent who has not filed a
proposed temporary parenting
plan disputes the allocation of parenting responsibilities,
residency, par-
enting time or other matters included in the proposed temporary
par-
enting plan, that parent shall file and serve a responsive proposed
tem-
porary parenting plan.
(e) Either parent may move to have a
proposed temporary parenting
plan entered as part of a temporary order. The parents may enter
an
agreed temporary parenting plan at any time as part of a temporary
order.
(f) A parent may move for amendment of a
temporary parenting plan,
and the court may order amendment to the temporary parenting plan,
if
the amendment is in the best interest of the child.
(g) If a proceeding for divorce, separate
maintenance, annulment or
determination of parentage is dismissed, any temporary parenting
plan is
vacated.
New Sec. 27. (a) The objectives of
the permanent parenting plan are
to:
(1) Establish a proper allocation of
parental rights and responsibili-
ties;
(2) establish an appropriate working
relationship between the parents
such that matters regarding the health, education and welfare of
their
child is best determined;
(3) provide for the child's physical
care;
(4) set forth an appropriate schedule of
parenting time;
(5) maintain the child's emotional
stability;
(6) provide for the child's changing
needs as the child grows and
matures in a way that minimizes the need for future modifications
to the
permanent parenting plan;
(7) minimize the child's exposure to
harmful parental conflict;
(8) encourage the parents, where
appropriate, to meet their respon-
sibilities to their minor children through agreements in the
permanent
parenting plan, rather than by relying on judicial intervention;
and
(9) otherwise protect the best interests
of the child.
(b) A permanent parenting plan may
consist of a general outline of
how parental responsibilities and parenting time will be shared and
may
allow the parents to develop a more detailed agreement on an
informal
basis; however, a permanent parenting plan must set forth the
following
minimum provisions:
(1) Designation of the legal custodial
relationship of the child;
(2) a schedule for the child's time with
each parent, when appropri-
ate; and
(3) a provision for a procedure by which
disputes between the parents
may be resolved without need for court intervention.
(c) A detailed permanent parenting plan
shall include those provi-
sions required by subsection (b), and may include, but need not be
limited
to, provisions relating to:
(1) Residential schedule;
(2) holiday, birthday and vacation
planning;
(3) weekends, including holidays and
school inservice days preceding
or following weekends;
(4) allocation of parental rights and
responsibilities regarding matters
pertaining to the child's health, education and welfare;
(5) sharing of and access to information
regarding the child;
(6) relocation of parents;
(7) telephone access;
(8) transportation; and
(9) methods for resolving disputes.
(d) The court shall develop a permanent
parenting plan, which may
include such detailed provisions as the court deems appropriate,
when:
(1) So requested by either parent; or
(2) the parent or parents are unable to
develop a parenting plan.
New Sec. 28. (a) The court shall
inform the parents, or require them
to be informed, about:
(1) How to prepare a parenting plan;
(2) the impact of family dissolution on
children and how the needs
of children facing family dissolution can best be addressed;
(3) the impact of domestic abuse on
children, and resources for ad-
dressing domestic abuse; and
(4) mediation or other nonjudicial
procedures designed to help them
achieve an agreement.
(b) The court may require the parents to
attend parent education
classes.
(c) If parents are unable to resolve
issues and agree to a parenting
plan, the court may require mediation, unless mediation is
determined
inappropriate in the particular case.
(d) The clerk of the district court shall
supply forms and information
prescribed by the supreme court which may be used for submission
of
temporary and permanent parenting plans.
New Sec. 29. (a) An action for
interspousal tort shall not be consol-
idated with an action under K.S.A. 60-1601, et seq., and
amendments
thereto, unless the parties agree to consolidation and
consolidation is
approved by the court.
(b) A decree of divorce or separate
maintenance granted under sub-
sections (a)(1) or (3) of K.S.A. 60-1601, and amendments thereto,
shall
not preclude an action for interspousal tort.
(c) A decree of divorce or separate
maintenance granted under sub-
section (a)(2) of K.S.A. 60-1601, and amendments thereto, shall
preclude
an action for interspousal tort based upon the same factual
allegations.
An action for interspousal tort which has been finally determined
shall
preclude an action under subsection (a)(2) of K.S.A. 60-1601, and
amend-
ments thereto, based upon the same factual allegations.
New Sec. 30. (a) A party filing a
motion to modify a final order per-
taining to child custody or residential placement pursuant to
K.S.A. 38-
1101 et seq. or K.S.A. 60-1601 et seq., and
amendments thereto, shall
include with specificity in the verified motion, or in an
accompanying
affidavit, all known factual allegations which constitute the basis
for the
change of custody or residential placement. If the court finds that
the
allegations set forth in the motion or the accompanying affidavit
fail to
establish a prima facie case, the court shall deny the
motion. If the court
finds that the motion establishes a prima facie case, the
matter may be
tried on factual issues.
(b) In the event the court is asked to
issue an ex parte order modifying
a final child custody or residential placement order based on
alleged
emergency circumstances, the court shall:
(1) Attempt to have the nonmoving party's
counsel, if any, present
before taking up the matter.
(2) Set the matter for review hearing at
the earliest possible court
setting after issuance of the ex parte order, but in no case
later than 15
days after issuance.
(3) Require personal service of the order
and notice of review hearing
on the nonmoving party.
No ex parte order modifying a final
custody or residential placement
order shall be entered without sworn testimony to support a showing
of
the alleged emergency.
New Sec. 31. (UCCJEA 101). The
provisions of sections 31 through
72 may be cited as the uniform child-custody jurisdiction and
enforce-
ment act.
New Sec. 32. (UCCJEA 102). As used
in sections 31 through 72:
(1) ``Abandoned'' means left without
provision for reasonable and
necessary care or supervision.
(2) ``Act'' means the uniform
child-custody jurisdiction and enforce-
ment act.
(3) ``Child'' means an individual who has
not attained 18 years of age.
(4) ``Child-custody determination'' means
a judgment, decree or
other order of a court providing for the legal custody, physical
custody or
visitation with respect to a child. The term includes a permanent,
tem-
porary, initial and modification order. The term does not include
an order
relating to child support or other monetary obligation of an
individual.
(5) ``Child-custody proceeding'' means a
proceeding in which legal
custody, physical custody, or visitation with respect to a child is
an issue.
The term includes a proceeding for divorce, separation, neglect,
abuse,
dependency, guardianship, paternity, termination of parental
rights, and
protection from domestic violence, in which the issue may appear.
The
term does not include a proceeding involving juvenile delinquency,
con-
tractual emancipation, or enforcement under sections 53 through 69
and
amendments thereto.
(6) ``Commencement'' means the filing of
the first pleading in a pro-
ceeding.
(7) ``Court'' means an entity authorized
under the law of a state to
establish, enforce, or modify a child-custody determination.
(8) ``Home state'' means the state in
which a child lived with a parent
or a person acting as a parent for at least six consecutive months
imme-
diately before the commencement of a child-custody proceeding. In
the
case of a child less than six months of age, the term means the
state in
which the child lived from birth with any of the persons mentioned.
A
period of temporary absence of any of the mentioned persons is part
of
the period.
(9) ``Initial determination'' means the
first child-custody determina-
tion concerning a particular child.
(10) ``Issuing court'' means the court
that makes a child-custody de-
termination for which enforcement is sought under this act.
(11) ``Issuing state'' means the state in
which a child-custody deter-
mination is made.
(12) ``Modification'' means a
child-custody determination that
changes, replaces, supersedes, or is otherwise made after a
previous de-
termination concerning the same child, whether or not it is made by
the
court that made the previous determination.
(13) ``Person'' means an individual,
corporation, business trust, estate,
trust, partnership, limited liability company, association, joint
venture,
government; governmental subdivision, agency, or instrumentality;
public
corporation; or any other legal or commercial entity.
(14) ``Person acting as a parent'' means
a person, other than a parent,
who:
(A) Has physical custody of the child or
has had physical custody for
period of six consecutive months, including any temporary
absence,
within one year immediately before the commencement of a
child-cus-
tody proceeding; and
(B) has been awarded legal custody by a
court or claims a right to
legal custody under the law of this state.
(15) ``Physical custody'' means the
physical care and supervision of a
child.
(16) ``State'' means a state of the
United States, the District of Co-
lumbia, Puerto Rico, the United States Virgin Islands, or any
territory or
insular possession subject to the jurisdiction of the United
States.
(17) ``Tribe'' means an Indian tribe or
band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a
state.
(18) ``Warrant'' means an order issued by
a court authorizing law
enforcement officers to take physical custody of a child.
New Sec. 33. (UCCJEA 103). This act
does not govern a proceeding
pertaining to the authorization of emergency medical care for a
child.
New Sec. 34. (UCCJEA 104). (a) A
child-custody proceeding that
pertains to an Indian child as defined in the Indian child welfare
act, 25
U.S.C. § 1901 et seq., is not subject to this act to the
extent that it is
governed by the Indian child welfare act.
(b) A court of this state shall treat a
tribe as if it were a state of the
United States for the purpose of applying sections 31 through 52
and
amendments thereto.
(c) A child-custody determination made by
a tribe under factual cir-
cumstances in substantial conformity with the jurisdictional
standards of
this act must be recognized and enforced under sections 53 through
69
and amendments thereto.
New Sec. 35. (UCCJEA 105). (a) A
court of this state shall treat a
foreign country as if it were a state of the United States for the
purpose
of applying sections 31 through 52 and amendments thereto.
(b) Except as otherwise provided in
subsection (c), a child-custody
determination made in a foreign country under factual circumstances
in
substantial conformity with the jurisdictional standards of this
act must
be recognized and enforced under sections 53 through 69 and
amend-
ments thereto.
(c) A court of this state need not apply
this act if the child custody
law of a foreign country violates fundamental principles of human
rights.
New Sec. 36. (UCCJEA 106). A
child-custody determination made
by a court of this state that had jurisdiction under this act binds
all persons
who have been served in accordance with the laws of this state or
notified
in accordance with section 38 and amendments thereto, or who
have
submitted to the jurisdiction of the court, and who have been given
an
opportunity to be heard. As to those persons, the determination is
con-
clusive as to all decided issues of law and fact except to the
extent the
determination is modified.
New Sec. 37. (UCCJEA 107). If a
question of existence or exercise
of jurisdiction under this act is raised in a child-custody
proceeding, the
question, upon request of a party, must be given priority on the
calendar
and handled expeditiously.
New Sec. 38. (UCCJEA 108). (a)
Notice required for the exercise of
jurisdiction when a person is outside this state may be given in a
manner
prescribed by the law of this state for service of process or by
the law of
the state in which the service is made. Notice must be given in a
manner
reasonably calculated to give actual notice but may be by
publication if
other means are not effective.
(b) Proof of service may be made in the
manner prescribed by the
law of this state or by the law of the state in which the service
is made.
(c) Notice is not required for the exercise of
jurisdiction with respect
to a person who submits to the jurisdiction of the court.
New Sec. 39. (UCCJEA 109). (a) A
party to a child-custody pro-
ceeding, including a modification proceeding, or a petitioner or
respon-
dent in a proceeding to enforce or register a child-custody
determination,
is not subject to personal jurisdiction in this state for another
proceeding
or purpose solely by reason of having participated, or of having
been
physically present for the purpose of participating, in the
proceeding.
(b) A person who is subject to personal
jurisdiction in this state on a
basis other than physical presence is not immune from service of
process
in this state. A party present in this state who is subject to the
jurisdiction
of another state is not immune from service of process allowable
under
the laws of that state.
(c) The immunity granted by subsection
(a) does not extend to civil
litigation based on acts unrelated to the participation in a
proceeding
under this act committed by an individual while present in this
state.
New Sec. 40. (UCCJEA 110). (a) A
court of this state may commu-
nicate with a court in another state concerning a proceeding
arising under
this act.
(b) The court may allow the parties to
participate in the communi-
cation. If the parties are not able to participate in the
communication,
they must be given the opportunity to present facts and legal
arguments
before a decision on jurisdiction is made.
(c) Communication between courts on
schedules, calendars, court
records, and similar matters may occur without informing the
parties. A
record need not be made of the communication.
(d) Except as otherwise provided in
subsection (c), a record must be
made of a communication under this section. The parties must be
in-
formed promptly of the communication and granted access to the
record.
(e) For the purposes of this section,
``record'' means information that
is inscribed on a tangible medium or that is stored in an
electronic or
other medium and is retrievable in perceivable form.
New Sec. 41. (UCCJEA 111). (a) In
addition to other procedures
available to a party, a party to a child-custody proceeding may
offer tes-
timony of witnesses who are located in another state, including
testimony
of the parties and the child, by deposition or other means
allowable in
this state for testimony taken in another state. The court on its
own mo-
tion may order that the testimony of a person be taken in another
state
and may prescribe the manner in which and the terms upon which
the
testimony is taken.
(b) A court of this state may permit an
individual residing in another
state to be deposed or to testify by telephone, audiovisual means,
or other
electronic means before a designated court or at another location
in that
state. A court of this state shall cooperate with courts of other
states in
designating an appropriate location for the deposition or
testimony.
(c) Documentary evidence transmitted from
another state to a court
of this state by technological means that do not produce an
original writing
may not be excluded from evidence on an objection based on the
means
of transmission.
New Sec. 42. (UCCJEA 112). (a) A
court of this state may request
the appropriate court of another state to:
(1) Hold an evidentiary hearing;
(2) order a person to produce or give
evidence pursuant to proce-
dures of that state;
(3) order that an evaluation be made with
respect to the custody of
a child involved in a pending proceeding;
(4) forward to the court of this state a
certified copy of the transcript
of the record of the hearing, the evidence otherwise presented, and
any
evaluation prepared in compliance with the request; and
(5) order a party to a child-custody
proceeding or any person having
physical custody of the child to appear in the proceeding with or
without
the child.
(b) Upon request of a court of another
state, a court of this state may
hold a hearing or enter an order described in subsection (a).
(c) Travel and other necessary and
reasonable expenses incurred un-
der subsections (a) and (b) may be assessed against the parties
according
to the law of this state.
(d) A court of this state shall preserve
the pleadings, orders, decrees,
records of hearings, evaluations, and other pertinent records with
respect
to a child-custody proceeding until the child attains 18 years of
age. Upon
appropriate request by a court or law enforcement official of
another
state, the court shall forward a certified copy of those
records.
New Sec. 43. (UCCJEA 201). (a)
Except as otherwise provided in
section 46 and amendments thereto, a court of this state has
jurisdiction
to make an initial child-custody determination only if:
(1) This state is the home state of the
child on the date of the com-
mencement of the proceeding, or was the home state of the child
within
six months before the commencement of the proceeding and the child
is
absent from this state but a parent or person acting as a parent
continues
to live in this state;
(2) a court of another state does not
have jurisdiction under para-
graph (1), or a court of the home state of the child has declined
to exercise
jurisdiction on the ground that this state is the more appropriate
forum
under section 49 or 50 and amendments thereto, and:
(A) The child and the child's parents, or
the child and at least one
parent or a person acting as a parent, have a significant
connection with
this state other than mere physical presence; and
(B) substantial evidence is available in
this state concerning the child's
care, protection, training, and personal relationships;
(3) all courts having jurisdiction under
paragraph (1) or (2) have de-
clined to exercise jurisdiction on the ground that a court of this
state is
the more appropriate forum to determine the custody of the child
under
section 49 or 50 and amendments thereto; or
(4) no court of any other state would
have jurisdiction under the
criteria specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive
jurisdictional basis for making a
child-custody determination by a court of this state.
(c) Physical presence of, or personal
jurisdiction over, a party or a
child is not necessary or sufficient to make a child-custody
determination.
New Sec. 44. (UCCJEA 202). (a)
Except as otherwise provided in
section 46 and amendments thereto, a court of this state which has
made
a child-custody determination consistent with section 43 or 45
and
amendments thereto, has exclusive, continuing jurisdiction over the
de-
termination until:
(1) A court of this state determines that
neither the child, the child's
parents, and any person acting as a parent do not have a
significant con-
nection with this state and that substantial evidence is no longer
available
in this state concerning the child's care, protection, training,
and personal
relationships; or
(2) a court of this state or a court of
another state determines that
the child, the child's parents, and any person acting as a parent
do not
presently reside in this state.
(b) A court of this state which has made
a child-custody determina-
tion and does not have exclusive, continuing jurisdiction under
this section
may modify that determination only if it has jurisdiction to make
an initial
determination under section 43 and amendments thereto.
New Sec. 45. (UCCJEA 203). Except
as otherwise provided in sec-
tion 46 and amendments thereto, a court of this state may not
modify a
child-custody determination made by a court of another state unless
a
court of this state has jurisdiction to make an initial
determination under
subsection (a)(1) or (2) of section 43 and amendments thereto,
and:
(1) The court of the other state
determines it no longer has exclusive,
continuing jurisdiction under section 44 and amendments thereto, or
that
a court of this state would be a more convenient forum under
section 49
and amendments thereto; or
(2) a court of this state or a court of
the other state determines that
the child, the child's parents, and any person acting as a parent
do not
presently reside in the other state.
New Sec. 46. (UCCJEA 204). (a) A
court of this state has temporary
emergency jurisdiction if the child is present in this state and
the child
has been abandoned or it is necessary in an emergency to protect
the
child because the child, or a sibling or parent of the child, is
subjected to
or threatened with mistreatment or abuse.
(b) If there is no previous child-custody
determination that is entitled
to be enforced under this act and a child-custody proceeding has
not been
commenced in a court of a state having jurisdiction under sections
43
through 45 and amendments thereto, a child-custody determination
made
under this section remains in effect until an order is obtained
from a
court of a state having jurisdiction under sections 43 through 45
and
amendments thereto. If a child-custody proceeding has not been or
is not
commenced in a court of a state having jurisdiction under sections
43
through 45 and amendments thereto, a child-custody determination
made
under this section becomes a final determination, if it so provides
and
this state becomes the home state of the child.
(c) If there is a previous child-custody
determination that is entitled
to be enforced under this act, or a child-custody proceeding has
been
commenced in a court of a state having jurisdiction under sections
43
through 45 and amendments thereto, any order issued by a court of
this
state under this section must specify in the order a period that
the court
considers adequate to allow the person seeking an order to obtain
an
order from the state having jurisdiction under sections 43 through
45 and
amendments thereto. The order issued in this state remains in
effect until
an order is obtained from the other state within the period
specified or
the period expires.
(d) A court of this state which has been
asked to make a child-custody
determination under this section, upon being informed that a
child-cus-
tody proceeding has been commenced in, or a child-custody
determina-
tion has been made by, a court of a state having jurisdiction under
sections
43 through 45 and amendments thereto, shall immediately
communicate
with the other court. A court of this state which is exercising
jurisdiction
pursuant to sections 43 through 45 and amendments thereto, upon
being
informed that a child-custody proceeding has been commenced in, or
a
child-custody determination has been made by, a court of another
state
under a statute similar to this section shall immediately
communicate with
the court of that state to resolve the emergency, protect the
safety of the
parties and the child, and determine a period for the duration of
the
temporary order.
New Sec. 47. (UCCJEA 205). (a)
Before a child-custody determi-
nation is made under this act, notice and an opportunity to be
heard in
accordance with the standards of section 38 and amendments
thereto,
must be given to all persons entitled to notice under the law of
this state
as in child-custody proceedings between residents of this state,
any parent
whose parental rights have not been previously terminated, and any
per-
son having physical custody of the child.
(b) This act does not govern the
enforceability of a child-custody de-
termination made without notice or an opportunity to be heard.
(c) The obligation to join a party and the
right to intervene as a party
in a child-custody proceeding under this act are governed by the
law of
this state as in child-custody proceedings between residents of
this state.
New Sec. 48. (UCCJEA 206). (a)
Except as otherwise provided in
section 46 and amendments thereto, a court of this state may not
exercise
its jurisdiction under sections 43 through 52 and amendments
thereto if,
at the time of the commencement of the proceeding, a proceeding
con-
cerning the custody of the child has been commenced in a court of
an-
other state having jurisdiction substantially in conformity with
this act,
unless the proceeding has been terminated or is stayed by the court
of
the other state because a court of this state is a more convenient
forum
under section 49 and amendments thereto.
(b) Except as otherwise provided in
section 46 and amendments
thereto, a court of this state, before hearing a child-custody
proceeding,
shall examine the court documents and other information supplied by
the
parties pursuant to section 51 and amendments thereto. If the court
de-
termines that a child-custody proceeding has been commenced in a
court
in another state having jurisdiction substantially in accordance
with this
act, the court of this state shall stay its proceeding and
communicate with
the court of the other state. If the court of the state having
jurisdiction
substantially in accordance with this act does not determine that
the court
of this state is a more appropriate forum, the court of this state
shall
dismiss the proceeding.
(c) In a proceeding to modify a
child-custody determination, a court
of this state shall determine whether a proceeding to enforce the
deter-
mination has been commenced in another state. If a proceeding to
en-
force a child-custody determination has been commenced in
another
state, the court may:
(1) Stay the proceeding for modification
pending the entry of an or-
der of a court of the other state enforcing, staying, denying, or
dismissing
the proceeding for enforcement;
(2) enjoin the parties from continuing
with the proceeding for en-
forcement; or
(3) proceed with the modification under
conditions it considers ap-
propriate.
New Sec. 49. (UCCJEA 207). (a) A
court of this state which has
jurisdiction under this act to make a child-custody determination
may
decline to exercise its jurisdiction at any time if it determines
that it is an
inconvenient forum under the circumstances and that a court of
another
state is a more appropriate forum. The issue of inconvenient forum
may
be raised upon motion of a party, the court's own motion, or
request of
another court.
(b) Before determining whether it is an
inconvenient forum, a court
of this state shall consider whether it is appropriate for a court
of another
state to exercise jurisdiction. For this purpose, the court shall
allow the
parties to submit information and shall consider all relevant
factors, in-
cluding:
(1) Whether domestic violence has
occurred and is likely to continue
in the future and which state could best protect the parties and
the child;
(2) the length of time the child has
resided outside this state;
(3) the distance between the court in
this state and the court in the
state that would assume jurisdiction;
(4) the relative financial circumstances
of the parties;
(5) any agreement of the parties as to
which state should assume
jurisdiction;
(6) the nature and location of the
evidence required to resolve the
pending litigation, including testimony of the child;
(7) the ability of the court of each
state to decide the issue expedi-
tiously and the procedures necessary to present the evidence;
and
(8) the familiarity of the court of each
state with the facts and issues
in the pending litigation.
(c) If a court of this state determines
that it is an inconvenient forum
and that a court of another state is a more appropriate forum, it
shall stay
the proceedings upon condition that a child-custody proceeding
be
promptly commenced in another designated state and may impose
any
other condition the court considers just and proper.
(d) A court of this state may decline to
exercise its jurisdiction under
this act if a child-custody determination is incidental to an
action for
divorce or another proceeding while still retaining jurisdiction
over the
divorce or other proceeding.
New Sec. 50. (UCCJEA 208). (a)
Except as otherwise provided in
section 46 and amendments thereto or by other law of this state, if
a court
of this state has jurisdiction under this act because a person
seeking to
invoke its jurisdiction has engaged in unjustifiable conduct, the
court shall
decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as
parents have acquiesced in
the exercise of jurisdiction;
(2) a court of the state otherwise having
jurisdiction under sections
43 through 45 and amendments thereto, determines that this state is
a
more appropriate forum under section 49 and amendments thereto;
or
(3) no court of any other state would
have jurisdiction under the
criteria specified in sections 43 through 45 and amendments
thereto.
(b) If a court of this state declines to
exercise its jurisdiction pursuant
to subsection (a), it may fashion an appropriate remedy to ensure
the
safety of the child and prevent a repetition of the unjustifiable
conduct,
including staying the proceeding until a child-custody proceeding
is com-
menced in a court having jurisdiction under sections 43 through 45
and
amendments thereto.
(c) If a court dismisses a petition or
stays a proceeding because it
declines to exercise its jurisdiction pursuant to subsection (a),
it shall
assess against the party seeking to invoke its jurisdiction
necessary and
reasonable expenses including costs, communication expenses,
attorney
fees, investigative fees, expenses for witnesses, travel expenses,
and child
care during the course of the proceedings, unless the party from
whom
fees are sought establishes that the assessment would be clearly
inappro-
priate. The court may not assess fees, costs, or expenses against
this state
unless authorized by law other than this act.
New Sec. 51. (UCCJEA 209). (a)
Subject to subsection (e), in a child-
custody proceeding, each party, in its first pleading or in an
attached
affidavit, shall give information, if reasonably ascertainable,
under oath as
to the child's present address or whereabouts, the places where the
child
has lived during the last five years, and the names and present
addresses
of the persons with whom the child has lived during that period.
The
pleading or affidavit must state whether the party:
(1) Has participated, as a party or
witness or in any other capacity, in
any other proceeding concerning the custody of or visitation with
the child
and, if so, identify the court, the case number, and the date of
the child-
custody determination, if any;
(2) knows of any proceeding that could
affect the current proceeding,
including proceedings for enforcement and proceedings relating to
do-
mestic violence, protective orders, termination of parental rights,
and
adoptions and, if so, identify the court, the case number, and the
nature
of the proceeding; and
(3) knows the names and addresses of any
person not a party to the
proceeding who has physical custody of the child or claims rights
of legal
custody or physical custody of, or visitation with, the child and,
if so, the
names and addresses of those persons.
(b) If the information required by
subsection (a) is not furnished, the
court, upon motion of a party or its own motion, may stay the
proceeding
until the information is furnished.
(c) If the declaration as to any of the
items described in subsection
(a)(1) through (3) is in the affirmative, the declarant shall give
additional
information under oath as required by the court. The court may
examine
the parties under oath as to details of the information furnished
and other
matters pertinent to the court's jurisdiction and the disposition
of the
case.
(d) Each party has a continuing duty to
inform the court of any pro-
ceeding in this or any other state that could affect the current
proceeding.
(e) If a party alleges in an affidavit or
a pleading under oath that the
health, safety, or liberty of a party or child would be jeopardized
by dis-
closure of identifying information, the information must be sealed
and
may not be disclosed to the other party or the public unless the
court
orders the disclosure to be made after a hearing in which the court
takes
into consideration the health, safety, or liberty of the party or
child and
determines that the disclosure is in the interest of justice.
New Sec. 52. (UCCJEA 210). (a) In a
child-custody proceeding in
this state, the court may order a party to the proceeding who is in
this
state to appear before the court in person with or without the
child. The
court may order any person who is in this state and who has
physical
custody or control of the child to appear in person with the
child.
(b) If a party to a child-custody
proceeding whose presence is desired
by the court is outside this state, the court may order that a
notice given
pursuant to section 38 and amendments thereto include a statement
di-
recting the party to appear in person with or without the child and
in-
forming the party that failure to appear may result in a decision
adverse
to the party.
(c) The court may enter any orders
necessary to ensure the safety of
the child and of any person ordered to appear under this
section.
(d) If a party to a child-custody
proceeding who is outside this state
is directed to appear under subsection (b) or desires to appear
personally
before the court with or without the child, the court may require
another
party to pay reasonable and necessary travel and other expenses of
the
party so appearing and of the child.
New Sec. 53. (UCCJEA 301). In
sections 53 through 69 and amend-
ments thereto:
(1) ``Petitioner'' means a person who
seeks enforcement of an order
for return of a child under the Hague Convention on the civil
aspects of
international child abduction or enforcement of a child-custody
deter-
mination.
(2) ``Respondent'' means a person against
whom a proceeding has
been commenced for enforcement of an order for return of a child
under
the Hague Convention on the civil aspects of international child
abduction
or enforcement of a child-custody determination.
New Sec. 54. (UCCJEA 302). Under
sections 53 through 69 and
amendments thereto, a court of this state may enforce an order for
the
return of the child made under the Hague Convention on the civil
aspects
of international child abduction as if it were a child-custody
determina-
tion.
New Sec. 55. (UCCJEA 303). (a) A
court of this state shall recognize
and enforce a child-custody determination of a court of another
state if
the latter court exercised jurisdiction in substantial conformity
with this
act or the determination was made under factual circumstances
meeting
the jurisdictional standards of this act and the determination has
not been
modified in accordance with this act.
(b) A court of this state may utilize any
remedy available under other
law of this state to enforce a child-custody determination made by
a court
of another state. The remedies provided in sections 53 through 69
and
amendments thereto, are cumulative and do not affect the
availability of
other remedies to enforce a child-custody determination.
New Sec. 56. (UCCJEA 304). (a) A
court of this state which does
not have jurisdiction to modify a child-custody determination, may
issue
a temporary order enforcing:
(1) A visitation schedule made by a court
of another state; or
(2) the visitation provisions of a
child-custody determination of an-
other state that does not provide for a specific visitation
schedule.
(b) If a court of this state makes an
order under subsection (a)(2), it
shall specify in the order a period that it considers adequate to
allow the
petitioner to obtain an order from a court having jurisdiction
under the
criteria specified in sections 43 through 52 and amendments
thereto. The
order remains in effect until an order is obtained from the other
court or
the period expires.
New Sec. 57. (UCCJEA 305). (a) A
child-custody determination is-
sued by a court of another state may be registered in this state,
with or
without a simultaneous request for enforcement, by sending to the
district
court in this state:
(1) A letter or other document requesting
registration;
(2) two copies, including one certified
copy, of the determination
sought to be registered, and a statement under penalty of perjury
that to
the best of the knowledge and belief of the person seeking
registration
the order has not been modified; and
(3) except as otherwise provided in
section 51 and amendments
thereto, the name and address of the person seeking registration
and any
parent or person acting as a parent who has been awarded custody
or
visitation in the child-custody determination sought to be
registered.
(b) On receipt of the documents required
by subsection (a), the reg-
istering court shall:
(1) Cause the determination to be filed
as a foreign judgment, to-
gether with one copy of any accompanying documents and
information,
regardless of their form; and
(2) serve notice upon the persons named
pursuant to subsection
(a)(3) and provide them with an opportunity to contest the
registration
in accordance with this section.
(c) The notice required by subsection
(b)(2) must state that:
(1) A registered determination is
enforceable as of the date of the
registration in the same manner as a determination issued by a
court of
this state;
(2) a hearing to contest the validity of
the registered determination
must be requested within 20 days after service of notice; and
(3) failure to contest the registration
will result in confirmation of the
child-custody determination and preclude further contest of that
deter-
mination with respect to any matter that could have been
asserted.
(d) A person seeking to contest the
validity of a registered order must
request a hearing within 20 days after service of the notice. At
that hear-
ing, the court shall confirm the registered order unless the person
con-
testing registration establishes that:
(1) The issuing court did not have
jurisdiction under sections 43
through 52 and amendments thereto;
(2) the child-custody determination
sought to be registered has been
vacated, stayed, or modified by a court having jurisdiction to do
so under
sections 43 through 52 and amendments thereto; or
(3) the person contesting registration
was entitled to notice, but no-
tice was not given in accordance with the standards of section 38
and
amendments thereto, in the proceedings before the court that issued
the
order for which registration is sought.
(e) If a timely request for a hearing to
contest the validity of the
registration is not made, the registration is confirmed as a matter
of law
and the person requesting registration and all persons served must
be
notified of the confirmation.
(f) Confirmation of a registered order,
whether by operation of law
or after notice and hearing, precludes further contest of the order
with
respect to any matter that could have been asserted at the time of
reg-
istration.
(g) There shall be no fee for registering
a child-custody determination
issued by a court of another state pursuant to this section. The
fee for
enforcement or modification of any child custody determination
shall be
as prescribed in K.S.A. 1999 Supp. 60-1621, and amendments
thereto.
New Sec. 58. (UCCJEA 306). (a) A
court of this state may grant any
relief normally available under the law of this state to enforce a
registered
child-custody determination made by a court of another state.
(b) A court of this state shall recognize
and enforce, but may not
modify, except in accordance with sections 43 through 52 and
amend-
ments thereto, a registered child-custody determination of a court
of an-
other state.
New Sec. 59. (UCCJEA 307). If a
proceeding for enforcement under
sections 53 through 69 and amendments thereto is commenced in a
court
of this state and the court determines that a proceeding to modify
the
determination is pending in a court of another state having
jurisdiction
to modify the determination under sections 43 through 52 and
amend-
ments thereto, the enforcing court shall immediately communicate
with
the modifying court. The proceeding for enforcement continues
unless
the enforcing court, after consultation with the modifying court,
stays or
dismisses the proceeding.
New Sec. 60. (UCCJEA 308). (a) A
petition under sections 53
through 69 and amendments thereto, must be verified. Certified
copies
of all orders sought to be enforced and of any order confirming
registra-
tion must be attached to the petition. A copy of a certified copy
of an
order may be attached instead of the original.
(b) A petition for enforcement of a
child-custody determination must
state:
(1) Whether the court that issued the
determination identified the
jurisdictional basis it relied upon in exercising jurisdiction and,
if so, what
the basis was;
(2) whether the determination for which
enforcement is sought has
been vacated, stayed, or modified by a court whose decision must
be
enforced under this act and, if so, identify the court, the case
number,
and the nature of the proceeding;
(3) whether any proceeding has been
commenced that could affect
the current proceeding, including proceedings relating to domestic
vio-
lence, protective orders, termination of parental rights, and
adoptions
and, if so, identify the court, the case number, and the nature of
the
proceeding;
(4) the present physical address of the
child and the respondent, if
known;
(5) whether relief in addition to the
immediate physical custody of
the child and attorney fees is sought, including a request for
assistance
from law enforcement officials and, if so, the relief sought;
and
(6) if the child-custody determination
has been registered and con-
firmed under section 57 and amendments thereto, the date and place
of
registration.
(c) Upon the filing of a petition, the
court shall issue an order di-
recting the respondent to appear in person with or without the
child at a
hearing and may enter any order necessary to ensure the safety of
the
parties and the child. The hearing must be held on the next
judicial day
after service of the order unless that date is impossible. In that
event, the
court shall hold the hearing on the first judicial day possible.
The court
may extend the date of hearing at the request of the
petitioner.
(d) An order issued under subsection (c)
must state the time and
place of the hearing and advise the respondent that at the hearing
the
court will order that the petitioner may take immediate physical
custody
of the child and the payment of fees, costs, and expenses under
section
64 and amendments thereto, and may schedule a hearing to
determine
whether further relief is appropriate, unless the respondent
appears and
establishes that:
(1) The child-custody determination has
not been registered and con-
firmed under section 57 and amendments thereto and that:
(A) The issuing court did not have
jurisdiction under sections 43
through 52 and amendments thereto;
(B) the child-custody determination for
which enforcement is sought
has been vacated, stayed, or modified by a court having
jurisdiction to do
so under sections 43 through 52 and amendments thereto;
(C) the respondent was entitled to
notice, but notice was not given
in accordance with the standards of section 38 and amendments
thereto,
in the proceedings before the court that issued the order for which
en-
forcement is sought; or
(2) the child-custody determination for
which enforcement is sought
was registered and confirmed under section 56 and amendments
thereto,
but has been vacated, stayed, or modified by a court of a state
having
jurisdiction to do so under sections 43 through 52 and
amendments
thereto.
New Sec. 61. (UCCJEA 309). Except
as otherwise provided in sec-
tion 63 and amendments thereto, the petition and order must be
served,
by any method authorized by the law of this state, upon respondent
and
any person who has physical custody of the child.
New Sec. 62. (UCCJEA 310). (a)
Unless the court issues a temporary
emergency order pursuant to section 46 and amendments thereto,
upon
a finding that a petitioner is entitled to immediate physical
custody of the
child, the court shall order that the petitioner may take immediate
phys-
ical custody of the child unless the respondent establishes
that:
(1) The child-custody determination has
not been registered and con-
firmed under section 57 and amendments thereto, and that:
(A) The issuing court did not have
jurisdiction under sections 43
through 52 and amendments thereto;
(B) the child-custody determination for
which enforcement is sought
has been vacated, stayed, or modified by a court of a state having
juris-
diction to do so under sections 43 through 52 and amendments
thereto;
or
(C) the respondent was entitled to
notice, but notice was not given
in accordance with the standards of section 38 and amendments
thereto,
in the proceedings before the court that issued the order for which
en-
forcement is sought; or
(2) the child-custody determination for
which enforcement is sought
was registered and confirmed under section 57 and amendments
thereto,
but has been vacated, stayed, or modified by a court of a state
having
jurisdiction to do so under sections 43 through 52 and
amendments
thereto.
(b) The court shall award the fees,
costs, and expenses authorized
under section 64 and amendments thereto and may grant additional
relief,
including a request for the assistance of law enforcement
officials, and
set a further hearing to determine whether additional relief is
appropriate.
(c) If a party called to testify refuses
to answer on the ground that
the testimony may be self-incriminating, the court may draw an
adverse
inference from the refusal.
(d) A privilege against disclosure of
communications between spouses
and a defense of immunity based on the relationship of husband and
wife
or parent and child may not be invoked in a proceeding under
sections
53 through 69 and amendments thereto.
New Sec. 63. (UCCJEA 311). (a) Upon
the filing of a petition seek-
ing enforcement of a child-custody determination, the petitioner
may file
a verified application for the issuance of a warrant to take
physical custody
of the child if the child is immediately likely to suffer serious
physical
harm or be removed from this state.
(b) If the court, upon the testimony of
the petitioner or other witness,
finds that the child is imminently likely to suffer serious
physical harm or
be removed from this state, it may issue a warrant to take physical
custody
of the child. The petition must be heard on the next judicial day
after the
warrant is executed unless that date is impossible. In that event,
the court
shall hold the hearing on the first judicial day possible. The
application
for the warrant must include the statements required by subsection
(b)
of section 60 and amendments thereto.
(c) A warrant to take physical custody of
a child must:
(1) Recite the facts upon which a
conclusion of imminent serious
physical harm or removal from the jurisdiction is based;
(2) direct law enforcement officers to
take physical custody of the
child immediately; and
(3) provide for the placement of the
child pending final relief.
(d) The respondent must be served with
the petition, warrant, and
order immediately after the child is taken into physical
custody.
(e) A warrant to take physical custody of
a child is enforceable
throughout this state. If the court finds on the basis of the
testimony of
the petitioner or other witness that a less intrusive remedy is not
effective,
it may authorize law enforcement officers to enter private property
to
take physical custody of the child. If required by exigent
circumstances
of the case, the court may authorize law enforcement officers to
make a
forcible entry at any hour.
(f) The court may impose conditions upon
placement of a child to
ensure the appearance of the child and the child's custodian.
New Sec. 64. (UCCJEA 312). (a) The
court shall award the prevail-
ing party, including a state, necessary and reasonable expenses
incurred
by or on behalf of the party, including costs, communication
expenses,
attorney fees, investigative fees, expenses for witnesses, travel
expenses,
and child care during the course of the proceedings, unless the
party from
whom fees or expenses are sought establishes that the award would
be
clearly inappropriate.
(b) The court may not assess fees, costs,
or expenses against a state
unless authorized by law other than this act.
New Sec. 65. (UCCJEA 313). A court
of this state shall accord full
faith and credit to an order issued by another state and consistent
with
this act which enforces a child-custody determination by a court of
an-
other state unless the order has been vacated, stayed, or modified
by a
court having jurisdiction to do so under sections 43 through 52
and
amendments thereto.
New Sec. 66. (UCCJEA 314). An
appeal may be taken from a final
order in a proceeding under sections 53 through 69 and
amendments
thereto, in accordance with expedited appellate procedures in other
civil
cases. Unless the court enters a temporary emergency order under
section
46 and amendments thereto, the enforcing court may not stay an
order
enforcing a child-custody determination pending appeal.
New Sec. 67. (UCCJEA 315). (a) In a
case arising under this act or
involving the Hague Convention on the civil aspects of
international child
abduction, the prosecutor may take any lawful action, including
resort to
a proceeding under sections 53 through 69 and amendments thereto
or
any other available civil proceeding to locate a child, obtain the
return of
a child, or enforce a child-custody determination if there is:
(1) An existing child-custody
determination;
(2) a request to do so from a court in a
pending child-custody pro-
ceeding;
(3) a reasonable belief that a criminal
statute has been violated; or
(4) a reasonable belief that the child
has been wrongfully removed
or retained in violation of the Hague Convention on the civil
aspects of
international child abduction.
(b) A prosecutor acting under this
section acts on behalf of the court
and may not represent any party.
New Sec. 68. (UCCJEA 316). At the
request of a prosecutor acting
under section 67 and amendments thereto, a law enforcement officer
may
take any lawful action reasonably necessary to locate a child or a
party
and assist a prosecutor with responsibilities under section 67 and
amend-
ments thereto.
New Sec. 69. (UCCJEA 317). If the
respondent is not the prevailing
party, the court may assess against the respondent all direct
expenses and
costs incurred by the prosecutor and law enforcement officers under
sec-
tion 67 or 68 and amendments thereto.
New Sec. 70. (UCCJEA 401). In
applying and construing this uni-
form act, consideration must be given to the need to promote
uniformity
of the law with respect to its subject matter among states that
enact it.
New Sec. 71. (UCCJEA 402). If any
provision of this act or its ap-
plication to any person or circumstance is held invalid, the
invalidity does
not affect other provisions or applications of this act which can
be given
effect without the invalid provision or application, and to this
end the
provisions of this act are severable.
New Sec. 72. (UCCJEA 405). A motion
or other request for relief
made in a child-custody proceeding or to enforce a child-custody
deter-
mination which was commenced before the effective date of this act
is
governed by the law in effect at the time the motion or other
request was
made.
Sec. 73. K.S.A. 38-1116 is hereby
amended to read as follows: 38-
1116. (a) The district court has jurisdiction of an action brought
under
this the Kansas parentage act. The action
may be joined with an action
for divorce, annulment, separate maintenance, support or
adoption.
(b) If any determination is sought in
any action under the Kansas
parentage act for custody, residency or parenting time, the
initial pleading
seeking that determination shall include that information
required by sec-
tion 51, and amendments thereto;
(b)(c) The action
may be brought in the county in which the child,
the mother or the presumed or alleged father resides or is found.
If a
parent or an alleged or presumed parent is deceased, an action may
be
brought in the county in which proceedings for probate of the
estate of
the parent or alleged or presumed parent have been or could be
com-
menced.
Sec. 74. K.S.A. 38-1503 is hereby
amended to read as follows: 38-
1503. (a) Proceedings concerning any child who appears to be a
child in
need of care shall be governed by this code, except in those
instances
when the Indian child welfare act of 1978 (25 U.S.C. § §
1901 et seq.)
applies.
(b) Subject to the uniform child custody
jurisdiction and enforcement
act, K.S.A. 38-1301 et
seq. sections 31 through 72 and amendments
thereto, the district court shall have original jurisdiction to
receive and
determine proceedings under this code.
(c) When jurisdiction has been acquired
by the court over the person
of a child in need of care it may continue until the child: (1) Has
attained
the age of 21 years; (2) has been adopted; or (3) has been
discharged by
the court. Any child 18 years of age or over may request, by motion
to
the court, that the jurisdiction of the court cease. Subsequently,
the court
shall enter an order discharging the person from any further
jurisdiction
of the court.
(d) When it is no longer appropriate for
the court to exercise juris-
diction over a child the court, upon its own motion or the motion
of an
interested party, shall enter an order discharging the child.
Except upon
request of the child, the court shall not enter an order
discharging a child
which reaches 18 years of age before completing the child's high
school
education until June 1 of the school year during which the child
became
18 years of age as long as the child is still attending high
school.
(e) Unless the court finds that
substantial injustice would result, the
provisions of this code shall govern with respect to acts or
omissions oc-
curring prior to the effective date of this code and with respect
to children
alleged or adjudicated to have done or to have been affected by the
acts
or omissions, to the same extent as if the acts or omissions had
occurred
on or after the effective date and the children had been alleged or
ad-
judicated to be children in need of care.
Sec. 75. K.S.A. 59-2127 is hereby
amended to read as follows: 59-
2127. (a) If the basis for venue in an agency adoption is
subsection (b)(3)
of K.S.A. 59-2126 and the petitioner does not reside in
Kansas and the
child to be adopted did not reside in Kansas prior to
receipt of custody
by the agency, the court shall determine whether or not to
exercise its
jurisdiction under this act based on the best interests of
the child. For
this purpose the court shall consider the following
factors:
(1) If another state recently was
the child's or mother's home state;
(2) if another state has a closer
connection with the child or the child's
adoptive or genetic parent or parents;
(3) if substantial evidence
concerning the child's present or future
care, protection, training and personal relationships is
more readily avail-
able in another state;
(4) the unavailability of
placement opportunities for such child within
the state of Kansas; and
(5) any other factor the court
deems relevant in its determination of
whether or not to exercise its jurisdiction.
(a) A court of this state may not
exercise jurisdiction over a proceed-
ing for adoption of a minor if at the time the petition for
adoption is filed
a proceeding concerning the custody or adoption of the minor is
pending
in a court of another state exercising jurisdiction
substantially in conform-
ity with the uniform child custody jurisdiction act, or the
uniform child
custody jurisdiction and enforcement act, or this act unless the
proceeding
is stayed by the court of the other state.
(b) If a court of another state has
issued a decree or order concerning
the custody of a minor who may be the subject of a proceeding
for adop-
tion in this state, a court of this state may not exercise
jurisdiction over a
proceeding for adoption of the minor unless:
(1) The court of this state finds that
the court of the state which issued
the decree or order:
(A) Does not have continuing jurisdiction
to modify the decree or order
under jurisdictional prerequisites substantially in accordance
with the
uniform child custody jurisdiction act, or the uniform child
custody ju-
risdiction and enforcement act, or has declined to assume
jurisdiction to
modify the decree or order, or
(B) does not have jurisdiction over a
proceeding for adoption sub-
stantially in conformity with subsection (a)(l) through (4) or
has declined
to assume jurisdiction proceeding for adoption; and
(2) the court of this state has
jurisdiction over the proceeding.
(b)(c) Before
determining whether or not to exercise its jurisdiction
the court may communicate with a court of another state and
exchange
information pertinent to the assumption of jurisdiction by either
court
with a view to assuring that jurisdiction will be exercised by such
court
of another state and that a forum will be available to the
parties.
(c)(d) If the
court determines not to exercise its jurisdiction, it may
dismiss the proceedings, or it may stay the proceedings upon
condition
that an adoption proceeding be promptly commenced in another
named
state or upon any other conditions which may be just and
proper.
Sec. 76. K.S.A. 59-2128 is hereby
amended to read as follows: 59-
2128. (a) A petition for adoption shall be filed by the person
desiring to
adopt the child, and shall state the following information, if
reasonably
ascertainable, under oath:
(1) In an independent adoption:
(A) The name, residence and address
of the petitioner;
(B) the name of the child, the
date, time and place of the child's
birth, and the place at which the child
resides;
(C) the suitability of the
petitioner to assume the relationship;
(D) whether one or both parents
are living and the name, date of
birth, residence and address of those living, so far as
known to the peti-
tioner;
(E) the facts relied upon as
eliminating the necessity for the consent,
if the consent of either or both parents is not
obtained;
(F) the information required by
the uniform child custody jurisdic-
tion act under K.S.A. 38-1309 and amendments thereto;
and
(G) whether the interstate
compact on placement of children, K.S.A.
38-1201 et seq.
and amendments thereto, and the Indian child
welfare
act, 25 U.S.C. 1901 et
seq., are applicable and have been or will be
com-
plied with prior to the hearing;
(2) in an agency adoption, all
requirements contained in subsection
(a)(1) except subsection (a)(1)(E), and if applicable, the
factual basis upon
which the court should determine to exercise its
jurisdiction as provided
in K.S.A. 59-2127; or
(3) in a stepparent adoption, all
requirements contained in subsection
(a)(1) except that a statement of compliance with the
interstate compact
on placement of children is not required.
(1) The name, residence and address of
the petitioner;
(2) the suitability of the petitioner
to assume the relationship;
(3) the name of the child, the date,
time and place of the child's birth,
and the present address or whereabouts of the child;
(4) the places where the child has
lived during the last five years;
(5) the names and present addresses of
the persons with whom the
child has lived during that period;
(6) whether the party has
participated, as a party or witness or in
any other capacity, in any other proceeding concerning the
custody of or
visitation with the child and, if so, identify the court, the
case number,
and the date of the child-custody determination, if
any;
(7) whether the party knows of any
proceeding that could affect the
current proceeding, including proceedings for enforcement and
proceed-
ings relating to domestic violence, protective orders,
termination of pa-
rental rights, and adoptions and, if so, identify the court, the
case number,
and the nature of the proceeding;
(8) whether the party knows the names
and addresses of any person
not a party to the proceeding who has physical custody of the
child or
claims rights of legal custody or physical custody of, or
visitation with,
the child and, if so, the names and addresses of those
persons;
(9) whether one or both parents are
living and the name, date of birth,
residence and address of those living, so far as known to the
petitioner;
(10) the facts relied upon as
eliminating the necessity for the consent,
if the consent of either or both parents is not
obtained;
(11) whether the interstate compact on
placement of children, K.S.A.
38-1201 et seq. and amendments thereto, and the Indian child
welfare
act, 25 U.S.C. have been or will be complied with prior to the
hearing.
(b) If the information required by
subsection (a) is not furnished, the
court, upon motion of a party or its own motion, may stay the
proceeding
until the information is furnished.
(c) If the declaration as to any of
the items described in subsection
(a)(6) through (a)(9) is in the affirmative, the declarant shall
give addi-
tional information under oath as required by the court. The
court may
examine the parties under oath as to details of the information
furnished
and other matters pertinent to the court's jurisdiction and the
disposition
of the case.
(d) The petitioner has a continuing
duty to inform the court of any
proceeding in this or any other state that could affect the
current pro-
ceeding.
(e) A petition filed in a step parent
adoption shall not require a state-
ment in compliance with the interstate compact on placement of
children.
(b)(f) The
written consents to adoption required by K.S.A. 59-2129,
and amendments thereto, the background information required by
K.S.A.
59-2130, and amendments thereto, the accounting required by
K.S.A. 59-
2121 and amendments thereto, and any affidavit required by
K.S.A. 59-
2126 shall be filed with the petition for adoption.
Sec. 77. K.S.A. 1999 Supp. 59-3009
is hereby amended to read as
follows: 59-3009. Any person may file in the district court of the
county
of the residence or presence of the proposed ward a verified
petition for
the appointment of a guardian. Any person may file in the district
court
of the county of the residence of the proposed conservatee a
verified
petition for the appointment of a conservator. If the proposed
conservatee
resides without the state, such petition may be filed in any county
in which
any of the property of the proposed conservatee is situated.
(a) If the proposed ward or proposed
conservatee is alleged to be a
disabled person the petition shall state:
(1) The petitioner's belief that the
proposed ward or proposed con-
servatee is a disabled person;
(2) the name, age, residence and present
address of the proposed
ward or proposed conservatee, if known to the petitioner;
(3) the name and address of the nearest
relatives of the proposed
ward or proposed conservatee, if known to the petitioner and if
not
known, that the petitioner has made diligent inquiry to learn the
name
of such relatives;
(4) the general character and probable
value of the real and personal
property, including the amount and sources of income, of the
proposed
ward or proposed conservatee, if known to the petitioner;
(5) the name and address of the person,
if any, having custody and
control of the proposed ward or proposed conservatee, if known to
the
petitioner;
(6) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(7) the reasons for the need of the
appointment of a guardian or
conservator, or both;
(8) a request that the court make a
determination that the proposed
ward or proposed conservatee is a disabled person, make one or more
of
the orders provided for in K.S.A. 59-3010 and 59-3011 and
amendments
thereto, and appoint a guardian or conservator, or both; and
(9) the name, address, and relationship
to the proposed ward or pro-
posed conservatee, if any, of the person whom the court is
requested to
appoint as a guardian or as a conservator. If a proposed
conservator is
under contract with the Kansas guardianship program, the
application for
appointment of guardian or conservator shall so state. Any such
petition
may be accompanied, or the court may require that such petition
be
accompanied by a statement in writing of a physician or
psychologist
stating that the physician or psychologist has examined the
proposed ward
or proposed conservatee and the results of the examination on the
issue
of whether the proposed ward or proposed conservatee is a disabled
per-
son or the court may allow such petition to be accompanied by a
verified
statement by the petitioner that the proposed ward or proposed
conser-
vatee has refused to submit to an examination by a physician or
psychol-
ogist.
(b) If the proposed ward or proposed
conservatee is alleged to be a
minor the petition shall state:
(1) The proposed ward or proposed
conservatee is a minor;
(2) the name, age, residence and present
address of the proposed
ward or proposed conservatee, if known to the petitioner;
(3) the information required including
that information required by
section 51, and amendments thereto, if the petition seeks
appointment of
a guardian for the minor;
(3)(4) the name
and address of the natural guardian, guardian, con-
servator and custodian, if any, of the proposed ward or proposed
conser-
vatee, if known to the petitioner, and if not known that the
petitioner has
made diligent inquiry to learn their names;
(4)(5) the
general character and probable value of the real and per-
sonal property, including the amount and sources of income, of the
pro-
posed ward or proposed conservatee, if known to the petitioner;
(5)(6) the names
and addresses of witnesses by whom the truth of
the petition may be proved;
(6)(7) the
reasons for the need for the appointment of a guardian or
conservator, or both;
(7)(8) a request
that the court make a determination that the pro-
posed ward or proposed conservatee is a minor, make one or more of
the
orders provided for by K.S.A. 59-3010 and 59-3011 and
amendments
thereto, and appoint a guardian or a conservator, or both; and
(8)(9) the name,
address, and relationship to the proposed ward or
proposed conservatee, if any, of the person whom the court is
requested
to appoint as a guardian or as a conservator.
(c) If the proposed conservatee has been
duly adjudged an incapac-
itated person, a disabled person, an insane person or an
incompetent
person by any court of competent jurisdiction in any other state
and a
domiciliary conservator or guardian for the estate of such person
has been
appointed, a duly authenticated transcript of such adjudication and
ap-
pointment shall be prima facie evidence of such incapacity and may
be
relied upon for the appointment of an ancillary conservator in this
state.
Such authenticated transcript shall be attached to the petition
which shall
state:
(1) That the proposed conservatee has
been duly adjudged an inca-
pacitated person, a disabled person, an insane person or an
incompetent
person by a court of competent jurisdiction of another state and a
dom-
iciliary conservator or guardian for such conservatee's estate has
been
appointed, which adjudication and appointment are still in full
force and
effect;
(2) the name, age, residence and present
address of the proposed
conservatee, if known to the petitioner;
(3) the name and address of the nearest
relatives of the proposed
conservatee, if known to the petitioner and if not known, that the
peti-
tioner has made diligent inquiry to learn the name of such
relatives;
(4) the location and value of Kansas
property for which an ancillary
conservatorship is needed;
(5) the name and address of the person,
if any, having custody and
control of the proposed conservatee, if known to the
petitioner;
(6) the reasons for the need for the
appointment of an ancillary con-
servator; and
(7) a request that the court appoint an
ancillary conservator as pro-
vided in subsection (c) of K.S.A. 59-3010 and amendments
thereto.
Sec. 78. K.S.A. 60-1604 is hereby
amended to read as follows: 60-
1604. (a) Verification of petition. The truth of the
allegations of any pe-
tition under this article must be verified by the petitioner in
person or by
the guardian of an incapacitated person.
(b) Captions. All pleadings shall
be captioned, ``In the matter of the
marriage of
and
.'' In the
caption, the name of the petitioner shall appear first and the name
of the
respondent shall appear second, but the respective parties shall
not be
designated as such.
(c) Contents of petition. The
grounds for divorce, annulment or sep-
arate maintenance shall be alleged as nearly as possible in the
general
language of the statute, without detailed statement of facts. If
there are
minor children of the marriage, the petition shall state their
names and
dates of birth and shall contain, or be accompanied by an affidavit
which
contains, the information required by K.S.A.
38-1309 section 51 and
amendments thereto.
(d) Bill of particulars. The
opposing party may demand a statement
of the facts which shall be furnished in the form of a bill of
particulars.
The facts stated in the bill of particulars shall be the specific
facts upon
which the action shall be tried. If interrogatories have been
served on or
a deposition taken of the party from whom the bill of particulars
is de-
manded, the court in its discretion may refuse to grant the demand
for a
bill of particulars. A copy of the bill of particulars shall be
delivered to
the judge. The bill of particulars shall not be filed with the
clerk of the
court or become a part of the record except on appeal, and then
only
when the issue to be reviewed relates to the facts stated in the
bill of
particulars. The bill of particulars shall be destroyed by the
district judge
unless an appeal is taken, in which case the bill of particulars
shall be
destroyed upon receipt of the final order from the appellate
court.
(e) Service of process. Service of
process shall be made in the manner
provided in article 3 of this chapter.
Sec. 79. K.S.A. 60-1605 is hereby
amended to read as follows: 60-
1605. The respondent may answer and may also file a
counterpetition
counterclaim for divorce, annulment or separate maintenance.
If new
matter is set up in the answer, it shall be verified by the
respondent in
person or by the guardian of an incapacitated person. If a
counterpetition
counterclaim is filed, it shall be subject to the provisions
of subsections
(a), (b) and (c) of K.S.A. 60-1604 and amendments thereto. When
there
are minor children of the marriage, the answer shall contain, or be
ac-
companied by an affidavit which contains, the information required
by
K.S.A. 38-1309 section 51, and amendments
thereto.
Sec. 80. K.S.A. 60-1611 is hereby
amended to read as follows: 60-
1611. A judgment or decree of divorce rendered in any other state
or
territory of the United States, in conformity with the laws
thereof, shall
be given full faith and credit in this state, except that, if the
respondent
in the action, at the time of the judgment or decree, was a
resident of
this state and did not personally appear or defend the action in
the court
of that state or territory and that court did not have jurisdiction
over the
respondent's person, all matters relating to maintenance, property
rights
of the parties and support of the minor children of the parties
shall be
subject to inquiry and determination in any proper action or
proceeding
brought in the courts of this state within two years after the date
of the
foreign judgment or decree, to the same extent as though the
foreign
judgment or decree had not been rendered. Nothing in this section
shall
authorize a court of this state to enter a custody decree,
as defined in
K.S.A. 38-1302, child custody determination, as
defined in section 32 and
amendments thereto contrary to the provisions of the uniform
child cus-
tody jurisdiction and enforcement act.
Sec. 81. K.S.A. 1999 Supp. 60-3103
is hereby amended to read as
follows: 60-3103. Any district court shall have jurisdiction over
all pro-
ceedings under the protection from abuse act. The right of a person
to
obtain relief under the protection from abuse act shall not be
affected by
the person's leaving the residence or household to avoid further
abuse.
Any petition under this act seeking orders regarding a custody
determi-
nation, as defined in section 32, and amendments thereto, shall
state that
information required by section 51, and amendments thereto, and
the
basis under which child-custody jurisdiction is sought to be
invoked.
Sec. 82. K.S.A. 1999 Supp. 38-1502
is hereby amended to read as
follows: 38-1502. As used in this code, unless the context
otherwise in-
dicates:
(a) ``Child in need of care'' means a
person less than 18 years of age
who:
(1) Is without adequate parental care,
control or subsistence and the
condition is not due solely to the lack of financial means of the
child's
parents or other custodian;
(2) is without the care or control
necessary for the child's physical,
mental or emotional health;
(3) has been physically, mentally or
emotionally abused or neglected
or sexually abused;
(4) has been placed for care or adoption
in violation of law;
(5) has been abandoned or does not have a
known living parent;
(6) is not attending school as required
by K.S.A. 72-977 or 72-1111,
and amendments thereto;
(7) except in the case of a violation of
K.S.A. 41-727, subsection (j)
of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and
amend-
ments thereto, or, except as provided in subsection (a)(12) of
K.S.A. 21-
4204a and amendments thereto, does an act which, when committed
by
a person under 18 years of age, is prohibited by state law, city
ordinance
or county resolution but which is not prohibited when done by an
adult;
(8) while less than 10 years of age,
commits any act which if done by
an adult would constitute the commission of a felony or misdemeanor
as
defined by K.S.A. 21-3105 and amendments thereto;
(9) is willfully and voluntarily absent
from the child's home without
the consent of the child's parent or other custodian;
(10) is willfully and voluntarily absent
at least a second time from a
court ordered or designated placement, or a placement pursuant to
court
order, if the absence is without the consent of the person with
whom the
child is placed or, if the child is placed in a facility, without
the consent
of the person in charge of such facility or such person's
designee;
(11) has been residing in the same
residence with a sibling or another
person under 18 years of age, who has been physically, mentally or
emo-
tionally abused or neglected, or sexually abused; or
(12) while less than 10 years of age
commits the offense defined in
K.S.A. 21-4204a and amendments thereto.
(b) ``Physical, mental or emotional abuse
or neglect'' means the in-
fliction of physical, mental or emotional injury or the causing of
a dete-
rioration of a child and may include, but shall not be limited to,
failing to
maintain reasonable care and treatment, negligent treatment or
maltreat-
ment or exploiting a child to the extent that the child's health or
emotional
well-being is endangered. A parent legitimately practicing
religious beliefs
who does not provide specified medical treatment for a child
because of
religious beliefs shall not for that reason be considered a
negligent parent;
however, this exception shall not preclude a court from entering an
order
pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments
thereto.
(c) ``Sexual abuse'' means any act
committed with a child which is
described in article 35, chapter 21 of the Kansas Statutes
Annotated and
those acts described in K.S.A. 21-3602 or 21-3603, and
amendments
thereto, regardless of the age of the child.
(d) ``Parent,'' when used in relation to
a child or children, includes a
guardian, conservator and every person who is by law liable to
maintain,
care for or support the child.
(e) ``Interested party'' means the state,
the petitioner, the child, any
parent, any grandparent and any person found to be an
interested party
pursuant to K.S.A. 38-1541 and amendments thereto.
(f) ``Law enforcement officer'' means any
person who by virtue of
office or public employment is vested by law with a duty to
maintain
public order or to make arrests for crimes, whether that duty
extends to
all crimes or is limited to specific crimes.
(g) ``Youth residential facility'' means
any home, foster home or struc-
ture which provides 24-hour-a-day care for children and which is
licensed
pursuant to article 5 of chapter 65 of the Kansas Statutes
Annotated.
(h) ``Shelter facility'' means any public
or private facility or home
other than a juvenile detention facility that may be used in
accordance
with this code for the purpose of providing either temporary
placement
for the care of children in need of care prior to the issuance of a
dispos-
itional order or longer term care under a dispositional order.
(i) ``Juvenile detention facility'' means
any secure public or private
facility used for the lawful custody of accused or adjudicated
juvenile
offenders which must not be a jail.
(j) ``Adult correction facility'' means
any public or private facility, se-
cure or nonsecure, which is used for the lawful custody of accused
or
convicted adult criminal offenders.
(k) ``Secure facility'' means a facility
which is operated or structured
so as to ensure that all entrances and exits from the facility are
under the
exclusive control of the staff of the facility, whether or not the
person
being detained has freedom of movement within the perimeters of
the
facility, or which relies on locked rooms and buildings, fences or
physical
restraint in order to control behavior of its residents. No secure
facility
shall be in a city or county jail.
(l) ``Ward of the court'' means a child
over whom the court has ac-
quired jurisdiction by the filing of a petition pursuant to this
code and
who continues subject to that jurisdiction until the petition is
dismissed
or the child is discharged as provided in K.S.A. 38-1503 and
amendments
thereto.
(m) ``Custody,'' whether temporary,
protective or legal, means the
status created by court order or statute which vests in a
custodian,
whether an individual or an agency, the right to physical
possession of
the child and the right to determine placement of the child,
subject to
restrictions placed by the court.
(n) ``Placement'' means the designation
by the individual or agency
having custody of where and with whom the child will live.
(o) ``Secretary'' means the secretary of
social and rehabilitation serv-
ices.
(p) ``Relative'' means a person related
by blood, marriage or adoption
but, when referring to a relative of a child's parent, does not
include the
child's other parent.
(q) ``Court-appointed special advocate''
means a responsible adult
other than an attorney guardian ad litem who is appointed by
the court
to represent the best interests of a child, as provided in K.S.A.
38-1505a
and amendments thereto, in a proceeding pursuant to this code.
(r) ``Multidisciplinary team'' means a
group of persons, appointed by
the court or by the state department of social and rehabilitation
services
under K.S.A. 38-1523a and amendments thereto, which has
knowledge
of the circumstances of a child in need of care.
(s) ``Jail'' means:
(1) An adult jail or lockup; or
(2) a facility in the same building or on
the same grounds as an adult
jail or lockup, unless the facility meets all applicable standards
and licen-
sure requirements under law and there is (A) total separation of
the ju-
venile and adult facility spatial areas such that there could be no
haphaz-
ard or accidental contact between juvenile and adult residents in
the
respective facilities; (B) total separation in all juvenile and
adult program
activities within the facilities, including recreation, education,
counseling,
health care, dining, sleeping, and general living activities; and
(C) separate
juvenile and adult staff, including management, security staff and
direct
care staff such as recreational, educational and counseling.
(t) ``Kinship care'' means the placement
of a child in the home of the
child's relative or in the home of another adult with whom the
child or
the child's parent already has a close emotional attachment.
(u) ``Juvenile intake and assessment
worker'' means a responsible
adult authorized to perform intake and assessment services as part
of the
intake and assessment system established pursuant to K.S.A.
75-7023, and
amendments thereto.
(v) ``Abandon'' means to forsake, desert
or cease providing care for
the child without making appropriate provisions for substitute
care.
(w) ``Permanent guardianship'' means a
judicially created relationship
between child and caretaker which is intended to be permanent and
self-
sustaining without ongoing state oversight or intervention. The
perma-
nent guardian stands in loco parentis and exercises all the rights
and
responsibilities of a parent. Upon appointment of a permanent
guardian,
the child in need of care proceedings shall be dismissed. A
permanent
guardian may be appointed after termination of parental rights.
(x) ``Aggravated circumstances'' means
the abandonment, torture,
chronic abuse, sexual abuse or chronic, life threatening neglect of
a child.
(y) ``Permanency hearing'' means a notice
and opportunity to be
heard is provided to interested parties, foster parents,
preadoptive parents
or relatives providing care for the child. The court, after
consideration of
the evidence, shall determine whether progress toward the case plan
goal
is adequate or reintegration is a viable alternative, or if the
case should
be referred to the county or district attorney for filing of a
petition to
terminate parental rights or to appoint a permanent guardian.
(z) ``Extended out of home placement''
means a child has been in the
custody of the secretary and placed with neither parent for 15 of
the most
recent 22 months beginning 60 days after the date at which a child
in the
custody of the secretary was removed from the home.
(aa) ``Educational institution'' means
all schools at the elementary and
secondary levels.
(bb) ``Educator'' means any
administrator, teacher or other profes-
sional or paraprofessional employee of an educational institution
who has
exposure to a pupil specified in subsection (a) of K.S.A. 1999
Supp. 72-
89b03 and amendments thereto.
Sec. 83. K.S.A. 38-1533 is hereby
amended to read as follows: 38-
1533. (a) Persons upon whom served. The summons and a copy
of the
petition shall be served on the child alleged to be a child in need
of care
by serving the guardian ad litem appointed for the child,
the parents or
parent having legal custody or who may be ordered to pay child
support
by the court, the person with whom the child is residing and any
other
person designated by the county or district attorney. A copy of
the petition
and notice of hearing shall be mailed by regular mail, to the
child's grand-
parents with whom the child does not reside.
(b) Form of summons. The summons
shall be issued by the clerk,
dated the day it is issued, contain the name of the court and the
caption
of the case and be in substantially the following form:
(Name of Court)
In the Interest of ________ Case No. ________
(Name[s])
Date of birth ____________
Each a child under 18 years of age
S U M M O N S
TO:
(Names)
|
(Relationship)
|
(Addresses)
|
|
|
|
|
|
|
|
|
|
|
|
|
A petition has been filed in this court, a
copy of which is attached.
On ________, 19 __, at __ o'clock __m. the
above parent(s), and any other
person having legal custody are required to appear before this
court at ________, or
prior to that time file your written response to the petition with
the clerk of this court.
Failure to respond or to appear before the
court at the above time will not prevent the
court from entering judgment that each child is a child in need of
care if it finds judgment
should be granted and removing the child from the custody of
parent, parents or any other
present legal custodian until the further order of the court. The
court may order one or
both parents to pay child support. If, after a child has been
adjudged to be a child in need
of care, the court finds a parent or parents to be unfit, the court
may make an order
permanently terminating the parent's or parents' parental
rights.
__________, an attorney, has been appointed as
guardian ad litem for the child or
children. Each parent or legal custodian has the right to appear
and be heard personally
either with or without an attorney. The court will appoint an
attorney for any parent who
is financially unable to hire one.
Date ________, 19 __ Clerk of the
District Court
(Seal) by
Sec. 84. K.S.A. 20-164, 21-3422a, 23-601, 23-602,
38-1116, 38-1301
through 38-1326, 38-1335, 38-1503, 38-1533, 59-2127, 59-2128,
60-1604,
60-1605, 60-1611, 60-1612, 60-1614, 60-1615 and 60-1617 and
K.S.A.
1999 Supp. 5-509, 20-302b, 23-701, 23-1001, 23-1002, 38-1121,
38-1132,
38-1138, 38-1502, 59-3009, 60-1607, 60-1610, 60-1616, 60-1620,
60-
1621, 60-3103, 60-3106 and 60-3107 are hereby repealed.
Sec. 85. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved May 16, 2000.
__________