Session of 1999
HOUSE BILL No. 2470
By Representatives Pauls, Alldritt, Ballard, Ballou, Barnes, Burroughs,
Dahl, Dreher, Faber, Feuerborn, Findley, Flaharty, Flower, Garner,
Gatewood, Geringer, Gilbert, Grant, Gregory, Haley, Henderson,
Henry, Horst, Huff, Humerickhouse, Klein, Landwehr, Larkin, M.
Long, Mason, Mayans, Mays, McClure, McCreary, McKinney, Myers,
Neufeld, O'Brien, O'Connor, Osborne, E. Peterson, Phelps, Powers,
Reardon, Rehorn, Ruff, Shriver, Swenson, Tanner, Tedder, Thimesch,
Toelkes, Vickrey, Wagle, Weiland and Welshimer
16 AN ACT concerning children and minors; relating to visitation rights of
17 grandparents; amending K.S.A. 38-129 and 38-130 and K.S.A. 1998
18 Supp. 38-1502 and 60-1616 and repealing the existing sections; also
19 repealing K.S.A. 1998 Supp. 38-1502c.
21 Be it enacted by the Legislature of the State of Kansas:
22 Section 1. K.S.A. 38-129 is hereby amended to read as follows: 38-
23 129. (a) The district court
may shall grant the grandparents of an un-
24 married minor child reasonable visitation rights to the child during the
25 child's minority upon a finding that the visitation rights would be in the
26 child's best interests and when a substantial relationship between the
27 child and the grandparent has been established.
28 (b) The district court may grant the parents of a deceased person
29 visitation rights, or may enforce visitation rights previously granted, pur-
30 suant to this section, even if the surviving parent has remarried and the
31 surviving parent's spouse has adopted the child. Visitation rights may be
32 granted pursuant to this subsection without regard to whether the adop-
33 tion of the child occurred before or after the effective date of this act.
34 (c) The district court shall grant grandparents reasonable visitation
35 rights unless the court, after a hearing, finds that visitation would seri-
36 ously endanger the child's physical, mental, moral or emotional health.
37 Sec. 2. K.S.A. 38-130 is hereby amended to read as follows: 38-130.
38 An action for reasonable visitation rights of grandparents as provided by
39 this act shall be brought in the county in which the child resides with the
40 child's parent, guardian or other person having lawful custody. Such ac-
41 tion shall be considered a domestic relations case and shall not be consid-
42 ered a juvenile case unless ordered by the administrative judge. The court
43 shall fix the time and date for a hearing on the petition and shall prescribe
HB 2470 2
1 the manner of giving notice thereof to interested persons.
2 Sec. 3. K.S.A. 1998 Supp. 38-1502 is hereby amended to read as
3 follows: 38-1502. As used in this code, unless the context otherwise
5 (a) "Child in need of care" means a person less than 18 years of age
7 (1) Is without adequate parental care, control or subsistence and the
8 condition is not due solely to the lack of financial means of the child's
9 parents or other custodian;
10 (2) is without the care or control necessary for the child's physical,
11 mental or emotional health;
12 (3) has been physically, mentally or emotionally abused or neglected
13 or sexually abused;
14 (4) has been placed for care or adoption in violation of law;
15 (5) has been abandoned or does not have a known living parent;
16 (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
17 and amendments thereto;
18 (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
19 of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
20 ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
21 4204a and amendments thereto, does an act which, when committed by
22 a person under 18 years of age, is prohibited by state law, city ordinance
23 or county resolution but which is not prohibited when done by an adult;
24 (8) while less than 10 years of age, commits any act which if done by
25 an adult would constitute the commission of a felony or misdemeanor as
26 defined by K.S.A. 21-3105 and amendments thereto;
27 (9) is willfully and voluntarily absent from the child's home without
28 the consent of the child's parent or other custodian;
29 (10) is willfully and voluntarily absent at least a second time from a
30 court ordered or designated placement, or a placement pursuant to court
31 order, if the absence is without the consent of the person with whom the
32 child is placed or, if the child is placed in a facility, without the consent
33 of the person in charge of such facility or such person's designee;
34 (11) has been residing in the same residence with a sibling or another
35 person under 18 years of age, who has been physically, mentally or emo-
36 tionally abused or neglected, or sexually abused; or
37 (12) while less than 10 years of age commits the offense defined in
38 K.S.A. 21-4204a and amendments thereto.
39 (b) "Physical, mental or emotional abuse or neglect" means the in-
40 fliction of physical, mental or emotional injury or the causing of a dete-
41 rioration of a child and may include, but shall not be limited to, failing to
42 maintain reasonable care and treatment, negligent treatment or maltreat-
43 ment or exploiting a child to the extent that the child's health or emotional
HB 2470 3
1 well-being is endangered. A parent legitimately practicing religious beliefs
2 who does not provide specified medical treatment for a child because of
3 religious beliefs shall not for that reason be considered a negligent parent;
4 however, this exception shall not preclude a court from entering an order
5 pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.
6 (c) "Sexual abuse" means any act committed with a child which is
7 described in article 35, chapter 21 of the Kansas Statutes Annotated and
8 those acts described in K.S.A. 21-3602 or 21-3603, and amendments
9 thereto, regardless of the age of the child.
10 (d) "Parent," when used in relation to a child or children, includes a
11 guardian, conservator and every person who is by law liable to maintain,
12 care for or support the child.
13 (e) "Interested party" means the state, the petitioner, the child, any
14 parent, any grandparent and any person found to be an interested party
15 pursuant to K.S.A. 38-1541 and amendments thereto.
16 (f) "Law enforcement officer" means any person who by virtue of
17 office or public employment is vested by law with a duty to maintain
18 public order or to make arrests for crimes, whether that duty extends to
19 all crimes or is limited to specific crimes.
20 (g) "Youth residential facility" means any home, foster home or struc-
21 ture which provides 24-hour-a-day care for children and which is licensed
22 pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.
23 (h) "Shelter facility" means any public or private facility or home
24 other than a juvenile detention facility that may be used in accordance
25 with this code for the purpose of providing either temporary placement
26 for the care of children in need of care prior to the issuance of a dispos-
27 itional order or longer term care under a dispositional order.
28 (i) "Juvenile detention facility" means any secure public or private
29 facility used for the lawful custody of accused or adjudicated juvenile
30 offenders which must not be a jail.
31 (j) "Adult correction facility" means any public or private facility, se-
32 cure or nonsecure, which is used for the lawful custody of accused or
33 convicted adult criminal offenders.
34 (k) "Secure facility" means a facility which is operated or structured
35 so as to ensure that all entrances and exits from the facility are under the
36 exclusive control of the staff of the facility, whether or not the person
37 being detained has freedom of movement within the perimeters of the
38 facility, or which relies on locked rooms and buildings, fences or physical
39 restraint in order to control behavior of its residents. No secure facility
40 shall be in a city or county jail.
41 (l) "Ward of the court" means a child over whom the court has ac-
42 quired jurisdiction by the filing of a petition pursuant to this code and
43 who continues subject to that jurisdiction until the petition is dismissed
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1 or the child is discharged as provided in K.S.A. 38-1503 and amendments
3 (m) "Custody," whether temporary, protective or legal, means the
4 status created by court order or statute which vests in a custodian,
5 whether an individual or an agency, the right to physical possession of
6 the child and the right to determine placement of the child, subject to
7 restrictions placed by the court.
8 (n) "Placement" means the designation by the individual or agency
9 having custody of where and with whom the child will live.
10 (o) "Secretary" means the secretary of social and rehabilitation
12 (p) "Relative" means a person related by blood, marriage or adoption
13 but, when referring to a relative of a child's parent, does not include the
14 child's other parent.
15 (q) "Court-appointed special advocate" means a responsible adult
16 other than an attorney guardian ad litem who is appointed by the court
17 to represent the best interests of a child, as provided in K.S.A. 38-1505a
18 and amendments thereto, in a proceeding pursuant to this code.
19 (r) "Multidisciplinary team" means a group of persons, appointed by
20 the court or by the state department of social and rehabilitation services
21 under K.S.A. 38-1523a and amendments thereto, which has knowledge
22 of the circumstances of a child in need of care.
23 (s) "Jail" means:
24 (1) An adult jail or lockup; or
25 (2) a facility in the same building or on the same grounds as an adult
26 jail or lockup, unless the facility meets all applicable standards and licen-
27 sure requirements under law and there is (A) total separation of the ju-
28 venile and adult facility spatial areas such that there could be no haphaz-
29 ard or accidental contact between juvenile and adult residents in the
30 respective facilities; (B) total separation in all juvenile and adult program
31 activities within the facilities, including recreation, education, counseling,
32 health care, dining, sleeping, and general living activities; and (C) separate
33 juvenile and adult staff, including management, security staff and direct
34 care staff such as recreational, educational and counseling.
35 (t) "Kinship care" means the placement of a child in the home of the
36 child's relative or in the home of another adult with whom the child or
37 the child's parent already has a close emotional attachment.
38 (u) "Juvenile intake and assessment worker" means a responsible
39 adult authorized to perform intake and assessment services as part of the
40 intake and assessment system established pursuant to K.S.A. 75-7023, and
41 amendments thereto.
42 (v) "Abandon" means to forsake, desert or cease providing care for
43 the child without making appropriate provisions for substitute care.
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1 (w) "Permanent guardianship" means a judicially created relationship
2 between child and caretaker which is intended to be permanent and self-
3 sustaining without ongoing state oversight or intervention. The perma-
4 nent guardian stands in loco parentis and exercises all the rights and
5 responsibilities of a parent.
6 (x) "Aggravated circumstances" means the abandonment, torture,
7 chronic abuse, sexual abuse or chronic, life threatening neglect of a child.
8 (y) "Permanency hearing" means a notice and opportunity to be
9 heard is provided to interested parties, foster parents, preadoptive parents
10 or relatives providing care for the child. The court, after consideration of
11 the evidence, shall determine whether progress toward the case plan goal
12 is adequate or reintegration is a viable alternative, or if the case should
13 be referred to the county or district attorney for filing of a petition to
14 terminate parental rights or to appoint a permanent guardian.
15 (z) "Extended out of home placement" means a child has been in the
16 custody of the secretary and placed with neither parent for 15 of the most
17 recent 22 months beginning 60 days after the date at which a child in the
18 custody of the secretary was removed from the home.
19 (aa) "Educational institution" means all schools at the elementary and
20 secondary levels.
21 (bb) "Educator" means any administrator, teacher or other profes-
22 sional or paraprofessional employee of an educational institution who has
23 exposure to a pupil specified in subsection (a)(1) through (5) of K.S.A. 72-
24 89b03 and amendments thereto.
25 Sec. 4. K.S.A. 1998 Supp. 60-1616 is hereby amended to read as
26 follows: 60-1616. (a) Parents. A parent not granted custody or residency
27 of the child is entitled to reasonable visitation rights unless the court
28 after a hearing, finds that visitation would seriously endanger
29 the child's physical, mental, moral or emotional health.
30 (b) Grandparents
and stepparents. Grandparents and stepparents
may be granted are entitled to reasonable visitation rights unless the court,
32 after a hearing, finds that visitation would seriously endanger the child's
33 physical, mental, moral or emotional health.
34 (c) Stepparents. Stepparents are entitled to reasonable visitation
35 rights if the court, after a hearing, finds that the stepparents and the child
36 have significant emotional ties. In all other cases, stepparents may be
37 granted visitation rights.
(c) (d) Modification. The court may modify an order granting or de-
39 nying visitation rights whenever modification would serve the best inter-
40 ests of the child.
(d) (e) Enforcement of rights. An order granting visitation rights to a
42 parent pursuant to this section may be enforced in accordance with K.S.A.
43 23-701, and amendments thereto. Actions to enforce grandparents and
HB 2470 6
1 stepparents visitation rights shall be considered domestic relation cases
2 and not juvenile cases unless ordered by the administrative judge.
(e) (f) Repeated denial of rights, effect. Repeated unreasonable denial
4 of or interference with visitation rights granted to a parent pursuant to
5 this section may be considered a material change of circumstances which
6 justifies modification of a prior order of child custody.
(f) (g) Repeated child support misuse, effect. Repeated child support
8 misuse may be considered a material change of circumstances which jus-
9 tifies modification of a prior order of child custody.
(g) (h) Court ordered exchange or visitation at a child exchange and
11 visitation center. (1) The court may order exchange or visitation to take
12 place at a child exchange and visitation center, as established in K.S.A.
13 75-720 and amendments thereto.
14 (2) A parent may petition the court to modify an order granting vis-
15 itation rights to require that the exchange or transfer of children for vis-
16 itation or visitation take place at a child exchange and visitation center,
17 as established in K.S.A. 75-720 and amendments thereto. The court may
18 modify an order granting visitation rights whenever modification would
19 serve the best interests of the child.
20 Sec. 5. K.S.A. 38-129 and 38-130 and K.S.A. 1998 Supp. 38-1502,
21 38-1502c and 60-1616 are hereby repealed.
22 Sec. 6. This act shall take effect and be in force from and after its
23 publication in the statute book.