SB 356--
Session of 1997
By Senators Brownlee and Harris

AN ACT concerning divorce; relating to child support; amending K.S.A. 1996 Supp. 60-1610 and repealing the existing section. Be it enacted by the Legislature of the State of Kansas: Section 1. K.S.A. 1996 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 when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents. The court may make a modification of child support ret- roactive 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. Re- gardless 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 terminate 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 terminate 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 SB 356

 1  old children. Provision for payment of support and educational expenses
 2  of a child after reaching 18 years of age if still attending high school shall
 3  apply to any child subject to the jurisdiction of the court, including those
 4  whose support was ordered prior to July 1, 1992. If an agreement ap-
 5  proved by the court prior to July 1, 1988, provides for termination of
 6  support before the date provided by subsection (a)(1)(B), the court may
 7  review and modify such agreement, and any order based on such agree-
 8  ment, to extend the date for termination of support to the date provided
 9  by subsection (a)(1)(B). If an agreement approved by the court prior to
10  July 1, 1992, provides for termination of support before the date provided
11  by subsection (a)(1)(C), the court may review and modify such agreement,
12  and any order based on such agreement, to extend the date for termi-
13  nation of support to the date provided by subsection (a)(1)(C). For pur-
14  poses of this section, ``bona fide high school student'' means a student
15  who is enrolled in full accordance with the policy of the accredited high
16  school in which the student is pursuing a high school diploma or a grad-
17  uate equivalency diploma (GED). In determining the amount to be paid
18  for child support, the court shall consider all relevant factors, without
19  regard to marital misconduct, including the financial resources and needs
20  of both parents, the financial resources and needs of the child and the
21  physical and emotional condition of the child. Until a child reaches 18
22  years of age, the court may set apart any portion of property of either the
23  husband or wife, or both, that seems necessary and proper for the support
24  of the child. Every order requiring payment of child support under this
25  section shall require that the support be paid through the clerk of the
26  district court or the court trustee except for good cause shown. The court
27  may order that a party required to pay child support be required to pay
28  an amount equal to six months of child support obligations at the time
29  the order is entered to be held by the clerk of the district court for pay-
30  ment, and if necessary, delaying the granting of a decree for divorce until
31  such payment is made. Nothing contained herein shall alleviate a party
32  ordered to pay such child support obligations from being required to do
33  so by the order of the court specifying the monthly obligations. The court
34  shall specify the disposition of any amounts still held by the clerk at the
35  termination of child support obligation pursuant to law or order of the
36  court.
37    (2)  Child custody and residency. (A) Changes in custody. Subject to
38  the provisions of the uniform child custody jurisdiction act K.S.A. 38-
39  1301 et seq., and amendments thereto, the court may change or modify
40  any prior order of custody when a material change of circumstances is
41  shown.
42    (B)  Examination of parties. The court may order physical or mental
43  examinations of the parties if requested pursuant to K.S.A. 60-235 and
SB 356

 1  amendments thereto.
 2    (3)  Child custody or residency criteria. The court shall determine
 3  custody or residency of a child in accordance with the best interests of
 4  the child.
 5    (A)  If the parties have a written agreement concerning the custody
 6  or residency of their minor child, it is presumed that the agreement is in
 7  the best interests of the child. This presumption may be overcome and
 8  the court may make a different order if the court makes specific findings
 9  of fact stating why the agreement is not in the best interests of the child.
10    (B)  In determining the issue of custody or residency of a child, the
11  court shall consider all relevant factors, including but not limited to:
12    (i)  The length of time that the child has been under the actual care
13  and control of any person other than a parent and the circumstances
14  relating thereto;
15    (ii)  the desires of the child's parents as to custody or residency;
16    (iii)  the desires of the child as to the child's custody or residency;
17    (iv)  the interaction and interrelationship of the child with parents,
18  siblings and any other person who may significantly affect the child's best
19  interests;
20    (v)  the child's adjustment to the child's home, school and community;
21    (vi)  the willingness and ability of each parent to respect and appre-
22  ciate the bond between the child and the other parent and to allow for a
23  continuing relationship between the child and the other parent; and
24    (vii)  evidence of spousal abuse.
25    Neither parent shall be considered to have a vested interest in the
26  custody or residency of any child as against the other parent, regardless
27  of the age of the child, and there shall be no presumption that it is in the
28  best interests of any infant or young child to give custody or residency to
29  the mother.
30    (4)  Types of custodial arrangements. Subject to the provisions of this
31  article, the court may make any order relating to custodial arrangements
32  which is in the best interests of the child. The order shall include, but
33  not be limited to, one of the following, in the order of preference:
34    (A)  Joint custody. The court may place the custody of a child with
35  both parties on a shared or joint-custody basis. In that event, the parties
36  shall have equal rights to make decisions in the best interests of the child
37  under their custody. When a child is placed in the joint custody of the
38  child's parents, the court may further determine that the residency of the
39  child shall be divided either in an equal manner with regard to time of
40  residency or on the basis of a primary residency arrangement for the child.
41  The court, in its discretion, may require the parents to submit a plan for
42  implementation of a joint custody order upon finding that both parents
43  are suitable parents or the parents, acting individually or in concert, may
SB 356

 1  submit a custody implementation plan to the court prior to issuance of a
 2  custody decree. If the court does not order joint custody, it shall include
 3  in the record the specific findings of fact upon which the order for custody
 4  other than joint custody is based.
 5    (B)  Sole custody. The court may place the custody of a child with one
 6  parent, and the other parent shall be the noncustodial parent. The cus-
 7  todial parent shall have the right to make decisions in the best interests
 8  of the child, subject to the visitation rights of the noncustodial parent.
 9    (C)  Divided custody. In an exceptional case, the court may divide the
10  custody of two or more children between the parties.
11    (D)  Nonparental custody. If during the proceedings the court deter-
12  mines that there is probable cause to believe that: (i) The child is a child
13  in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-
14  1502 and amendments thereto; (ii) neither parent is fit to have custody;
15  or (iii) the child is currently residing with such child's grandparent, grand-
16  parents, aunt or uncle and such relative has had actual physical custody
17  of such child for a significant length of time, the court may award tem-
18  porary custody of the child to such relative, another person or agency if
19  the court finds the award of custody to such relative, another person or
20  agency is in the best interests of the child. In making such a custody
21  order, the court shall give preference, to the extent that the court finds
22  it is in the best interests of the child, first to awarding such custody to a
23  relative of the child by blood, marriage or adoption and second to award-
24  ing such custody to another person with whom the child has close emo-
25  tional ties. The court may make temporary orders for care, support, ed-
26  ucation and visitation that it considers appropriate. Temporary custody
27  orders are to be entered in lieu of temporary orders provided for in K.S.A.
28  38-1542 and 38-1543, and amendments thereto, and shall remain in effect
29  until there is a final determination under the Kansas code for care of
30  children. An award of temporary custody under this paragraph shall not
31  terminate parental rights nor give the court the authority to consent to
32  the adoption of the child. When the court enters orders awarding tem-
33  porary custody of the child to an agency or a person other than the parent
34  but not a relative as described in subpart (iii), the court shall refer a
35  transcript of the proceedings to the county or district attorney. The county
36  or district attorney shall file a petition as provided in K.S.A. 38-1531 and
37  amendments thereto and may request termination of parental rights pur-
38  suant to K.S.A. 38-1581 and amendments thereto. The costs of the pro-
39  ceedings shall be paid from the general fund of the county. When a final
40  determination is made that the child is not a child in need of care, the
41  county or district attorney shall notify the court in writing and the court,
42  after a hearing, shall enter appropriate custody orders pursuant to this
43  section. If the same judge presides over both proceedings, the notice is
SB 356

 1  not required. Any disposition pursuant to the Kansas code for care of
 2  children shall be binding and shall supersede any order under this section.
 3  When the court enters orders awarding temporary custody of the child
 4  to a relative as described in subpart (iii), the court shall annually review
 5  the temporary custody to evaluate whether such custody is still in the best
 6  interests of the child. If the court finds such custody is in the best interests
 7  of the child, such custody shall continue. If the court finds such custody
 8  is not in the best interests of the child, the court shall determine the
 9  custody pursuant to this section.
10    (b)  Financial matters. (1) Division of property. The decree shall di-
11  vide the real and personal property of the parties, including any retire-
12  ment and pension plans, whether owned by either spouse prior to mar-
13  riage, acquired by either spouse in the spouse's own right after marriage
14  or acquired by the spouses' joint efforts, by: (A) a division of the property
15  in kind; (B) awarding the property or part of the property to one of the
16  spouses and requiring the other to pay a just and proper sum; or (C)
17  ordering a sale of the property, under conditions prescribed by the court,
18  and dividing the proceeds of the sale.  Upon request, the trial court shall
19  set a valuation date to be used for all assets at trial, which may be the
20  date of separation, filing or trial as the facts and circumstances of the case
21  may dictate. The trial court may consider evidence regarding changes in
22  value of various assets before and after the valuation date in making the
23  division of property. In dividing defined-contribution types of retirement
24  and pension plans, the court shall allocate profits and losses on the non-
25  participant's portion until date of distribution to that nonparticipant. In
26  making the division of property the court shall consider the age of the
27  parties; the duration of the marriage; the property owned by the parties;
28  their present and future earning capacities; the time, source and manner
29  of acquisition of property; family ties and obligations; the allowance of
30  maintenance or lack thereof; dissipation of assets; the tax consequences
31  of the property division upon the respective economic circumstances of
32  the parties; and such other factors as the court considers necessary to
33  make a just and reasonable division of property. The decree shall provide
34  for any changes in beneficiary designation on: (A) Any insurance or an-
35  nuity policy that is owned by the parties, or in the case of group life
36  insurance policies, under which either of the parties is a covered person;
37  (B) any trust instrument under which one party is the grantor or holds a
38  power of appointment over part or all of the trust assets, that may be
39  exercised in favor of either party; or (C) any transfer on death or payable
40  on death account under which one or both of the parties are owners or
41  beneficiaries. Nothing in this section shall relieve the parties of the ob-
42  ligation to effectuate any change in beneficiary designation by the filing
43  of such change with the insurer or issuer in accordance with the terms
SB 356

 1  of such policy.
 2    (2)  Maintenance. The decree may award to either party an allowance
 3  for future support denominated as maintenance, in an amount the court
 4  finds to be fair, just and equitable under all of the circumstances. The
 5  decree may make the future payments modifiable or terminable under
 6  circumstances prescribed in the decree. The court may make a modifi-
 7  cation of maintenance retroactive to a date at least one month after the
 8  date that the motion to modify was filed with the court. In any event, the
 9  court may not award maintenance for a period of time in excess of 121
10  months. If the original court decree reserves the power of the court to
11  hear subsequent motions for reinstatement of maintenance and such a
12  motion is filed prior to the expiration of the stated period of time for
13  maintenance payments, the court shall have jurisdiction to hear a motion
14  by the recipient of the maintenance to reinstate the maintenance pay-
15  ments. Upon motion and hearing, the court may reinstate the payments
16  in whole or in part for a period of time, conditioned upon any modifying
17  or terminating circumstances prescribed by the court, but the reinstate-
18  ment shall be limited to a period of time not exceeding 121 months. The
19  recipient may file subsequent motions for reinstatement of maintenance
20  prior to the expiration of subsequent periods of time for maintenance
21  payments to be made, but no single period of reinstatement ordered by
22  the court may exceed 121 months. Maintenance may be in a lump sum,
23  in periodic payments, on a percentage of earnings or on any other basis.
24  At any time, on a hearing with reasonable notice to the party affected,
25  the court may modify the amounts or other conditions for the payment
26  of any portion of the maintenance originally awarded that has not already
27  become due, but no modification shall be made without the consent of
28  the party liable for the maintenance, if it has the effect of increasing or
29  accelerating the liability for the unpaid maintenance beyond what was
30  prescribed in the original decree. Every order requiring payment of main-
31  tenance under this section shall require that the maintenance be paid
32  through the clerk of the district court or the court trustee except for good
33  cause shown.
34    (3)  Separation agreement. If the parties have entered into a separa-
35  tion agreement which the court finds to be valid, just and equitable, the
36  agreement shall be incorporated in the decree. The provisions of the
37  agreement on all matters settled by it shall be confirmed in the decree
38  except that any provisions for the custody, support or education of the
39  minor children shall be subject to the control of the court in accordance
40  with all other provisions of this article. Matters settled by an agreement
41  incorporated in the decree, other than matters pertaining to the custody,
42  support or education of the minor children, shall not be subject to sub-
43  sequent modification by the court except: (A) As prescribed by the agree-
SB 356

 1  ment or (B) as subsequently consented to by the parties.
 2    (4)  Costs and fees. Costs and attorney fees may be awarded to either
 3  party as justice and equity require. The court may order that the amount
 4  be paid directly to the attorney, who may enforce the order in the attor-
 5  ney's name in the same case.
 6    (c)  Miscellaneous matters. (1) Restoration of name. Upon the request
 7  of a spouse, the court shall order the restoration of that spouse's maiden
 8  or former name.
 9    (2)  Effective date as to remarriage. Any marriage contracted by a
10  party, within or outside this state, with any other person before a judg-
11  ment of divorce becomes final shall be voidable until the decree of divorce
12  becomes final. An agreement which waives the right of appeal from the
13  granting of the divorce and which is incorporated into the decree or
14  signed by the parties and filed in the case shall be effective to shorten
15  the period of time during which the remarriage is voidable.
16    Sec. 2.  K.S.A. 1996 Supp. 60-1610 is hereby repealed.
17    Sec. 3.  This act shall take effect and be in force from and after its
18  publication in the statute book.