Session of 1999
HOUSE BILL No. 2488
By Committee on Judiciary
9 AN ACT enacting the uniform child-custody jurisdiction and enforce-
10 ment act; amending K.S.A. 38-1503, 59-2128, 60-1604, 60-1605, and
11 60-1611 and K.S.A. 1998 Supp. 60-1610 are hereby repealed; also re-
12 pealing K.S.A. 38-1301 through 38-1326 and 38-1335.
14 Be it enacted by the Legislature of the State of Kansas:
15 New Section 1. (UCCJEA 101). This act may be cited as the uniform
16 child-custody jurisdiction and enforcement act.
17 New Sec. 2. (UCCJEA 102). In this act:
18 (1) "Abandoned" means left without provision for reasonable and
19 necessary care or supervision.
20 (2) "Child" means an individual who has not attained 18 years of age.
21 (3) "Child-custody determination" means a judgment, decree, or
22 other order of a court providing for the legal custody, physical custody,
23 or visitation with respect to a child. The term includes a permanent,
24 temporary, initial, and modification order. The term does not include an
25 order relating to child support or other monetary obligation of an
27 (4) "Child-custody proceeding" means a proceeding in which legal
28 custody, physical custody, or visitation with respect to a child is an issue.
29 The term includes a proceeding for divorce, separation, neglect, abuse,
30 dependency, guardianship, paternity, termination of parental rights, and
31 protection from domestic violence, in which the issue may appear. The
32 term does not include a proceeding involving juvenile delinquency, con-
33 tractual emancipation, or enforcement under sections 23 through 39 and
34 amendments thereto.
35 (5) "Commencement" means the filing of the first pleading in a
37 (6) "Court" means an entity authorized under the law of a state to
38 establish, enforce, or modify a child-custody determination.
39 (7) "Home state" means the state in which a child lived with a parent
40 or a person acting as a parent for at least six consecutive months imme-
41 diately before the commencement of a child-custody proceeding. In the
42 case of a child less than six months of age, the term means the state in
43 which the child lived from birth with any of the persons mentioned. A
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1 period of temporary absence of any of the mentioned persons is part of
2 the period.
3 (8) "Initial determination" means the first child-custody determina-
4 tion concerning a particular child.
5 (9) "Issuing court" means the court that makes a child-custody de-
6 termination for which enforcement is sought under this act.
7 (10) "Issuing state" means the state in which a child-custody deter-
8 mination is made.
9 (11) "Modification" means a child-custody determination that
10 changes, replaces, supersedes, or is otherwise made after a previous de-
11 termination concerning the same child, whether or not it is made by the
12 court that made the previous determination.
13 (12) "Person" means an individual, corporation, business trust, estate,
14 trust, partnership, limited liability company, association, joint venture,
15 government; governmental subdivision, agency, or instrumentality; public
16 corporation; or any other legal or commercial entity.
17 (13) "Person acting as a parent" means a person, other than a parent,
19 (A) Has physical custody of the child or has had physical custody for
20 a period of six consecutive months, including any temporary absence,
21 within one year immediately before the commencement of a child-cus-
22 tody proceeding; and
23 (B) has been awarded legal custody by a court or claims a right to
24 legal custody under the law of this state.
25 (14) "Physical custody" means the physical care and supervision of a
27 (15) "State" means a state of the United States, the District of Co-
28 lumbia, Puerto Rico, the United States Virgin Islands, or any territory or
29 insular possession subject to the jurisdiction of the United States.
30 (16) "Tribe" means an Indian tribe or band, or Alaskan Native village,
31 which is recognized by federal law or formally acknowledged by a state.
32 (17) "Warrant" means an order issued by a court authorizing law
33 enforcement officers to take physical custody of a child.
34 New Sec. 3. (UCCJEA 103). This act does not govern an adoption
35 proceeding or a proceeding pertaining to the authorization of emergency
36 medical care for a child.
37 New Sec. 4. (UCCJEA 104). (a) A child-custody proceeding that per-
38 tains to an Indian child as defined in the Indian Child Welfare Act, 25
39 U.S.C. % 1901 et seq., is not subject to this act to the extent that it is
40 governed by the Indian Child Welfare Act.
41 (b) A court of this state shall treat a tribe as if it were a state of the
42 United States for the purpose of applying sections 1 through 22 and
43 amendments thereto.
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1 (c) A child-custody determination made by a tribe under factual cir-
2 cumstances in substantial conformity with the jurisdictional standards of
3 this act must be recognized and enforced under sections 23 through 39
4 and amendments thereto.
5 New Sec. 5. (UCCJEA 105). (a) A court of this state shall treat a
6 foreign country as if it were a state of the United States for the purpose
7 of applying sections 1 through 22 and amendments thereto.
8 (b) Except as otherwise provided in subsection (c), a child-custody
9 determination made in a foreign country under factual circumstances in
10 substantial conformity with the jurisdictional standards of this act must
11 be recognized and enforced under sections 23 through 39 and amend-
12 ments thereto.
13 (c) A court of this state need not apply this act if the child custody
14 law of a foreign country violates fundamental principles of human rights.
15 New Sec. 6. (UCCJEA 106). A child-custody determination made by
16 a court of this state that had jurisdiction under this act binds all persons
17 who have been served in accordance with the laws of this state or notified
18 in accordance with section 8 and amendments thereto, or who have sub-
19 mitted to the jurisdiction of the court, and who have been given an op-
20 portunity to be heard. As to those persons, the determination is conclusive
21 as to all decided issues of law and fact except to the extent the determi-
22 nation is modified.
23 New Sec. 7. (UCCJEA 107). If a question of existence or exercise of
24 jurisdiction under this act is raised in a child-custody proceeding, the
25 question, upon request of a party, must be given priority on the calendar
26 and handled expeditiously.
27 New Sec. 8. (UCCJEA 108). (a) Notice required for the exercise of
28 jurisdiction when a person is outside this state may be given in a manner
29 prescribed by the law of this state for service of process or by the law of
30 the state in which the service is made. Notice must be given in a manner
31 reasonably calculated to give actual notice but may be by publication if
32 other means are not effective.
33 (b) Proof of service may be made in the manner prescribed by the
34 law of this state or by the law of the state in which the service is made.
35 (c) Notice is not required for the exercise of jurisdiction with respect
36 to a person who submits to the jurisdiction of the court.
37 New Sec. 9. (UCCJEA 109). (a) A party to a child-custody proceed-
38 ing, including a modification proceeding, or a petitioner or respondent in
39 a proceeding to enforce or register a child-custody determination, is not
40 subject to personal jurisdiction in this state for another proceeding or
41 purpose solely by reason of having participated, or of having been phys-
42 ically present for the purpose of participating, in the proceeding.
43 (b) A person who is subject to personal jurisdiction in this state on a
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1 basis other than physical presence is not immune from service of process
2 in this state. A party present in this state who is subject to the jurisdiction
3 of another state is not immune from service of process allowable under
4 the laws of that state.
5 (c) The immunity granted by subsection (a) does not extend to civil
6 litigation based on acts unrelated to the participation in a proceeding
7 under this act committed by an individual while present in this state.
8 New Sec. 10. (UCCJEA 110). (a) A court of this state may commu-
9 nicate with a court in another state concerning a proceeding arising under
10 this act.
11 (b) The court may allow the parties to participate in the communi-
12 cation. If the parties are not able to participate in the communication,
13 they must be given the opportunity to present facts and legal arguments
14 before a decision on jurisdiction is made.
15 (c) Communication between courts on schedules, calendars, court
16 records, and similar matters may occur without informing the parties. A
17 record need not be made of the communication.
18 (d) Except as otherwise provided in subsection (c), a record must be
19 made of a communication under this section. The parties must be in-
20 formed promptly of the communication and granted access to the record.
21 (e) For the purposes of this section, "record" means information that
22 is inscribed on a tangible medium or that is stored in an electronic or
23 other medium and is retrievable in perceivable form.
24 New Sec. 11. (UCCJEA 111). (a) In addition to other procedures
25 available to a party, a party to a child-custody proceeding may offer tes-
26 timony of witnesses who are located in another state, including testimony
27 of the parties and the child, by deposition or other means allowable in
28 this state for testimony taken in another state. The court on its own mo-
29 tion may order that the testimony of a person be taken in another state
30 and may prescribe the manner in which and the terms upon which the
31 testimony is taken.
32 (b) A court of this state may permit an individual residing in another
33 state to be deposed or to testify by telephone, audiovisual means, or other
34 electronic means before a designated court or at another location in that
35 state. A court of this state shall cooperate with courts of other states in
36 designating an appropriate location for the deposition or testimony.
37 (c) Documentary evidence transmitted from another state to a court
38 of this state by technological means that do not produce an original writing
39 may not be excluded from evidence on an objection based on the means
40 of transmission.
41 New Sec. 12. (UCCJEA 112). (a) A court of this state may request
42 the appropriate court of another state to:
43 (1) Hold an evidentiary hearing;
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1 (2) order a person to produce or give evidence pursuant to proce-
2 dures of that state;
3 (3) order that an evaluation be made with respect to the custody of
4 a child involved in a pending proceeding;
5 (4) forward to the court of this state a certified copy of the transcript
6 of the record of the hearing, the evidence otherwise presented, and any
7 evaluation prepared in compliance with the request; and
8 (5) order a party to a child-custody proceeding or any person having
9 physical custody of the child to appear in the proceeding with or without
10 the child.
11 (b) Upon request of a court of another state, a court of this state may
12 hold a hearing or enter an order described in subsection (a).
13 (c) Travel and other necessary and reasonable expenses incurred un-
14 der subsections (a) and (b) may be assessed against the parties according
15 to the law of this state.
16 (d) A court of this state shall preserve the pleadings, orders, decrees,
17 records of hearings, evaluations, and other pertinent records with respect
18 to a child-custody proceeding until the child attains 18 years of age. Upon
19 appropriate request by a court or law enforcement official of another
20 state, the court shall forward a certified copy of those records.
21 New Sec. 13. (UCCJEA 201). (a) Except as otherwise provided in
22 section 16 and amendments thereto, a court of this state has jurisdiction
23 to make an initial child-custody determination only if:
24 (1) This state is the home state of the child on the date of the com-
25 mencement of the proceeding, or was the home state of the child within
26 six months before the commencement of the proceeding and the child is
27 absent from this state but a parent or person acting as a parent continues
28 to live in this state;
29 (2) a court of another state does not have jurisdiction under para-
30 graph (1), or a court of the home state of the child has declined to exercise
31 jurisdiction on the ground that this state is the more appropriate forum
32 under section 19 or 20 and amendments thereto, and:
33 (A) The child and the child's parents, or the child and at least one
34 parent or a person acting as a parent, have a significant connection with
35 this state other than mere physical presence; and
36 (B) substantial evidence is available in this state concerning the child's
37 care, protection, training, and personal relationships;
38 (3) all courts having jurisdiction under paragraph (1) or (2) have de-
39 clined to exercise jurisdiction on the ground that a court of this state is
40 the more appropriate forum to determine the custody of the child under
41 section 19 or 20 and amendments thereto; or
42 (4) no court of any other state would have jurisdiction under the
43 criteria specified in paragraph (1), (2), or (3).
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1 (b) Subsection (a) is the exclusive jurisdictional basis for making a
2 child-custody determination by a court of this state.
3 (c) Physical presence of, or personal jurisdiction over, a party or a
4 child is not necessary or sufficient to make a child-custody determination.
5 New Sec. 14. (UCCJEA 202). (a) Except as otherwise provided in
6 section 16 and amendments thereto, a court of this state which has made
7 a child-custody determination consistent with section 13 or 15 and
8 amendments thereto, has exclusive, continuing jurisdiction over the de-
9 termination until:
10 (1) A court of this state determines that neither the child, the child's
11 parents, and any person acting as a parent do not have a significant con-
12 nection with this state and that substantial evidence is no longer available
13 in this state concerning the child's care, protection, training, and personal
14 relationships; or
15 (2) a court of this state or a court of another state determines that
16 the child, the child's parents, and any person acting as a parent do not
17 presently reside in this state.
18 (b) A court of this state which has made a child-custody determina-
19 tion and does not have exclusive, continuing jurisdiction under this section
20 may modify that determination only if it has jurisdiction to make an initial
21 determination under section 13 and amendments thereto.
22 New Sec. 15. (UCCJEA 203). Except as otherwise provided in sec-
23 tion 16 and amendments thereto, a court of this state may not modify a
24 child-custody determination made by a court of another state unless a
25 court of this state has jurisdiction to make an initial determination under
26 subsection (a)(1) or (2) of section 13 and amendments thereto, and:
27 (1) The court of the other state determines it no longer has exclusive,
28 continuing jurisdiction under section 14 and amendments thereto, or that
29 a court of this state would be a more convenient forum under section 19
30 and amendments thereto; or
31 (2) a court of this state or a court of the other state determines that
32 the child, the child's parents, and any person acting as a parent do not
33 presently reside in the other state.
34 New Sec. 16. (UCCJEA 204). (a) A court of this state has temporary
35 emergency jurisdiction if the child is present in this state and the child
36 has been abandoned or it is necessary in an emergency to protect the
37 child because the child, or a sibling or parent of the child, is subjected to
38 or threatened with mistreatment or abuse.
39 (b) If there is no previous child-custody determination that is entitled
40 to be enforced under this act and a child-custody proceeding has not been
41 commenced in a court of a state having jurisdiction under sections 13
42 through 15 and amendments thereto, a child-custody determination made
43 under this section remains in effect until an order is obtained from a
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1 court of a state having jurisdiction under sections 13 through 15 and
2 amendments thereto. If a child-custody proceeding has not been or is not
3 commenced in a court of a state having jurisdiction under sections 13
4 through 15 and amendments thereto, a child-custody determination made
5 under this section becomes a final determination, if it so provides and
6 this state becomes the home state of the child.
7 (c) If there is a previous child-custody determination that is entitled
8 to be enforced under this act, or a child-custody proceeding has been
9 commenced in a court of a state having jurisdiction under sections 13
10 through 15 and amendments thereto, any order issued by a court of this
11 state under this section must specify in the order a period that the court
12 considers adequate to allow the person seeking an order to obtain an
13 order from the state having jurisdiction under sections 13 through 15 and
14 amendments thereto. The order issued in this state remains in effect until
15 an order is obtained from the other state within the period specified or
16 the period expires.
17 (d) A court of this state which has been asked to make a child-custody
18 determination under this section, upon being informed that a child-cus-
19 tody proceeding has been commenced in, or a child-custody determina-
20 tion has been made by, a court of a state having jurisdiction under sections
21 13 through 15 and amendments thereto, shall immediately communicate
22 with the other court. A court of this state which is exercising jurisdiction
23 pursuant to sections 13 through 15 and amendments thereto, upon being
24 informed that a child-custody proceeding has been commenced in, or a
25 child-custody determination has been made by, a court of another state
26 under a statute similar to this section shall immediately communicate with
27 the court of that state to resolve the emergency, protect the safety of the
28 parties and the child, and determine a period for the duration of the
29 temporary order.
30 New Sec. 17. (UCCJEA 205). (a) Before a child-custody determi-
31 nation is made under this act, notice and an opportunity to be heard in
32 accordance with the standards of section 8 and amendments thereto, must
33 be given to all persons entitled to notice under the law of this state as in
34 child-custody proceedings between residents of this state, any parent
35 whose parental rights have not been previously terminated, and any per-
36 son having physical custody of the child.
37 (b) This act does not govern the enforceability of a child-custody de-
38 termination made without notice or an opportunity to be heard.
39 (c) The obligation to join a party and the right to intervene as a party
40 in a child-custody proceeding under this act are governed by the law of
41 this state as in child-custody proceedings between residents of this state.
42 New Sec. 18. (UCCJEA 206). (a) Except as otherwise provided in
43 section 16 and amendments thereto, a court of this state may not exercise
HB 2488 8
1 its jurisdiction under sections 13 through 22 and amendments thereto if,
2 at the time of the commencement of the proceeding, a proceeding con-
3 cerning the custody of the child has been commenced in a court of an-
4 other state having jurisdiction substantially in conformity with this act,
5 unless the proceeding has been terminated or is stayed by the court of
6 the other state because a court of this state is a more convenient forum
7 under section 19 and amendments thereto.
8 (b) Except as otherwise provided in section 16 and amendments
9 thereto, a court of this state, before hearing a child-custody proceeding,
10 shall examine the court documents and other information supplied by the
11 parties pursuant to section 21 and amendments thereto. If the court de-
12 termines that a child-custody proceeding has been commenced in a court
13 in another state having jurisdiction substantially in accordance with this
14 act, the court of this state shall stay its proceeding and communicate with
15 the court of the other state. If the court of the state having jurisdiction
16 substantially in accordance with this act does not determine that the court
17 of this state is a more appropriate forum, the court of this state shall
18 dismiss the proceeding.
19 (c) In a proceeding to modify a child-custody determination, a court
20 of this state shall determine whether a proceeding to enforce the deter-
21 mination has been commenced in another state. If a proceeding to en-
22 force a child-custody determination has been commenced in another
23 state, the court may:
24 (1) Stay the proceeding for modification pending the entry of an or-
25 der of a court of the other state enforcing, staying, denying, or dismissing
26 the proceeding for enforcement;
27 (2) enjoin the parties from continuing with the proceeding for en-
28 forcement; or
29 (3) proceed with the modification under conditions it considers
31 New Sec. 19. (UCCJEA 207). (a) A court of this state which has
32 jurisdiction under this act to make a child-custody determination may
33 decline to exercise its jurisdiction at any time if it determines that it is an
34 inconvenient forum under the circumstances and that a court of another
35 state is a more appropriate forum. The issue of inconvenient forum may
36 be raised upon motion of a party, the court's own motion, or request of
37 another court.
38 (b) Before determining whether it is an inconvenient forum, a court
39 of this state shall consider whether it is appropriate for a court of another
40 state to exercise jurisdiction. For this purpose, the court shall allow the
41 parties to submit information and shall consider all relevant factors,
43 (1) Whether domestic violence has occurred and is likely to continue
HB 2488 9
1 in the future and which state could best protect the parties and the child;
2 (2) the length of time the child has resided outside this state;
3 (3) the distance between the court in this state and the court in the
4 state that would assume jurisdiction;
5 (4) the relative financial circumstances of the parties;
6 (5) any agreement of the parties as to which state should assume
8 (6) the nature and location of the evidence required to resolve the
9 pending litigation, including testimony of the child;
10 (7) the ability of the court of each state to decide the issue expedi-
11 tiously and the procedures necessary to present the evidence; and
12 (8) the familiarity of the court of each state with the facts and issues
13 in the pending litigation.
14 (c) If a court of this state determines that it is an inconvenient forum
15 and that a court of another state is a more appropriate forum, it shall stay
16 the proceedings upon condition that a child-custody proceeding be
17 promptly commenced in another designated state and may impose any
18 other condition the court considers just and proper.
19 (d) A court of this state may decline to exercise its jurisdiction under
20 this act if a child-custody determination is incidental to an action for
21 divorce or another proceeding while still retaining jurisdiction over the
22 divorce or other proceeding.
23 New Sec. 20. (UCCJEA 208). (a) Except as otherwise provided in
24 section 16 and amendments thereto or by other law of this state, if a court
25 of this state has jurisdiction under this act because a person seeking to
26 invoke its jurisdiction has engaged in unjustifiable conduct, the court shall
27 decline to exercise its jurisdiction unless:
28 (1) The parents and all persons acting as parents have acquiesced in
29 the exercise of jurisdiction;
30 (2) a court of the state otherwise having jurisdiction under sections
31 13 through 15 and amendments thereto, determines that this state is a
32 more appropriate forum under section 19 and amendments thereto; or
33 (3) no court of any other state would have jurisdiction under the
34 criteria specified in sections 13 through 15 and amendments thereto.
35 (b) If a court of this state declines to exercise its jurisdiction pursuant
36 to subsection (a), it may fashion an appropriate remedy to ensure the
37 safety of the child and prevent a repetition of the unjustifiable conduct,
38 including staying the proceeding until a child-custody proceeding is com-
39 menced in a court having jurisdiction under sections 13 through 15 and
40 amendments thereto.
41 (c) If a court dismisses a petition or stays a proceeding because it
42 declines to exercise its jurisdiction pursuant to subsection (a), it shall
43 assess against the party seeking to invoke its jurisdiction necessary and
HB 2488 10
1 reasonable expenses including costs, communication expenses, attorney
2 fees, investigative fees, expenses for witnesses, travel expenses, and child
3 care during the course of the proceedings, unless the party from whom
4 fees are sought establishes that the assessment would be clearly inappro-
5 priate. The court may not assess fees, costs, or expenses against this state
6 unless authorized by law other than this act.
7 New Sec. 21. (UCCJEA 209). (a) Subject to subsection (e), in a child-
8 custody proceeding, each party, in its first pleading or in an attached
9 affidavit, shall give information, if reasonably ascertainable, under oath as
10 to the child's present address or whereabouts, the places where the child
11 has lived during the last five years, and the names and present addresses
12 of the persons with whom the child has lived during that period. The
13 pleading or affidavit must state whether the party:
14 (1) Has participated, as a party or witness or in any other capacity, in
15 any other proceeding concerning the custody of or visitation with the child
16 and, if so, identify the court, the case number, and the date of the child-
17 custody determination, if any;
18 (2) knows of any proceeding that could affect the current proceeding,
19 including proceedings for enforcement and proceedings relating to do-
20 mestic violence, protective orders, termination of parental rights, and
21 adoptions and, if so, identify the court, the case number, and the nature
22 of the proceeding; and
23 (3) knows the names and addresses of any person not a party to the
24 proceeding who has physical custody of the child or claims rights of legal
25 custody or physical custody of, or visitation with, the child and, if so, the
26 names and addresses of those persons.
27 (b) If the information required by subsection (a) is not furnished, the
28 court, upon motion of a party or its own motion, may stay the proceeding
29 until the information is furnished.
30 (c) If the declaration as to any of the items described in subsection
31 (a)(1) through (3) is in the affirmative, the declarant shall give additional
32 information under oath as required by the court. The court may examine
33 the parties under oath as to details of the information furnished and other
34 matters pertinent to the court's jurisdiction and the disposition of the
36 (d) Each party has a continuing duty to inform the court of any pro-
37 ceeding in this or any other state that could affect the current proceeding.
38 (e) If a party alleges in an affidavit or a pleading under oath that the
39 health, safety, or liberty of a party or child would be jeopardized by dis-
40 closure of identifying information, the information must be sealed and
41 may not be disclosed to the other party or the public unless the court
42 orders the disclosure to be made after a hearing in which the court takes
43 into consideration the health, safety, or liberty of the party or child and
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1 determines that the disclosure is in the interest of justice.
2 New Sec. 22. (UCCJEA 210). (a) In a child-custody proceeding in
3 this state, the court may order a party to the proceeding who is in this
4 state to appear before the court in person with or without the child. The
5 court may order any person who is in this state and who has physical
6 custody or control of the child to appear in person with the child.
7 (b) If a party to a child-custody proceeding whose presence is desired
8 by the court is outside this state, the court may order that a notice given
9 pursuant to section 8 and amendments thereto include a statement di-
10 recting the party to appear in person with or without the child and in-
11 forming the party that failure to appear may result in a decision adverse
12 to the party.
13 (c) The court may enter any orders necessary to ensure the safety of
14 the child and of any person ordered to appear under this section.
15 (d) If a party to a child-custody proceeding who is outside this state
16 is directed to appear under subsection (b) or desires to appear personally
17 before the court with or without the child, the court may require another
18 party to pay reasonable and necessary travel and other expenses of the
19 party so appearing and of the child.
20 New Sec. 23. (UCCJEA 301). In sections 23 through 39 and amend-
21 ments thereto:
22 (1) "Petitioner" means a person who seeks enforcement of an order
23 for return of a child under the Hague Convention on the civil aspects of
24 international child abduction or enforcement of a child-custody
26 (2) "Respondent" means a person against whom a proceeding has
27 been commenced for enforcement of an order for return of a child under
28 the Hague Convention on the civil aspects of international child abduction
29 or enforcement of a child-custody determination.
30 New Sec. 24. (UCCJEA 302). Under sections 23 through 39 and
31 amendments thereto, a court of this state may enforce an order for the
32 return of the child made under the Hague Convention on the civil aspects
33 of international child abduction as if it were a child-custody
35 New Sec. 25. (UCCJEA 303). (a) A court of this state shall recognize
36 and enforce a child-custody determination of a court of another state if
37 the latter court exercised jurisdiction in substantial conformity with this
38 act or the determination was made under factual circumstances meeting
39 the jurisdictional standards of this act and the determination has not been
40 modified in accordance with this act.
41 (b) A court of this state may utilize any remedy available under other
42 law of this state to enforce a child-custody determination made by a court
43 of another state. The remedies provided in sections 23 through 39 and
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1 amendments thereto, are cumulative and do not affect the availability of
2 other remedies to enforce a child-custody determination.
3 New Sec. 26. (UCCJEA 304). (a) A court of this state which does
4 not have jurisdiction to modify a child-custody determination, may issue
5 a temporary order enforcing:
6 (1) A visitation schedule made by a court of another state; or
7 (2) the visitation provisions of a child-custody determination of an-
8 other state that does not provide for a specific visitation schedule.
9 (b) If a court of this state makes an order under subsection (a)(2), it
10 shall specify in the order a period that it considers adequate to allow the
11 petitioner to obtain an order from a court having jurisdiction under the
12 criteria specified in sections 13 through 22 and amendments thereto. The
13 order remains in effect until an order is obtained from the other court or
14 the period expires.
15 New Sec. 27. (UCCJEA 305). (a) A child-custody determination is-
16 sued by a court of another state may be registered in this state, with or
17 without a simultaneous request for enforcement, by sending to the district
18 court in this state:
19 (1) A letter or other document requesting registration;
20 (2) two copies, including one certified copy, of the determination
21 sought to be registered, and a statement under penalty of perjury that to
22 the best of the knowledge and belief of the person seeking registration
23 the order has not been modified; and
24 (3) except as otherwise provided in section 21 and amendments
25 thereto, the name and address of the person seeking registration and any
26 parent or person acting as a parent who has been awarded custody or
27 visitation in the child-custody determination sought to be registered.
28 (b) On receipt of the documents required by subsection (a), the reg-
29 istering court shall:
30 (1) Cause the determination to be filed as a foreign judgment, to-
31 gether with one copy of any accompanying documents and information,
32 regardless of their form; and
33 (2) serve notice upon the persons named pursuant to subsection
34 (a)(3) and provide them with an opportunity to contest the registration
35 in accordance with this section.
36 (c) The notice required by subsection (b)(2) must state that:
37 (1) A registered determination is enforceable as of the date of the
38 registration in the same manner as a determination issued by a court of
39 this state;
40 (2) a hearing to contest the validity of the registered determination
41 must be requested within 20 days after service of notice; and
42 (3) failure to contest the registration will result in confirmation of the
43 child-custody determination and preclude further contest of that deter-
HB 2488 13
1 mination with respect to any matter that could have been asserted.
2 (d) A person seeking to contest the validity of a registered order must
3 request a hearing within 20 days after service of the notice. At that hear-
4 ing, the court shall confirm the registered order unless the person con-
5 testing registration establishes that:
6 (1) The issuing court did not have jurisdiction under sections 13
7 through 22 and amendments thereto;
8 (2) the child-custody determination sought to be registered has been
9 vacated, stayed, or modified by a court having jurisdiction to do so under
10 sections 13 through 22 and amendments thereto; or
11 (3) the person contesting registration was entitled to notice, but no-
12 tice was not given in accordance with the standards of section 8 and
13 amendments thereto, in the proceedings before the court that issued the
14 order for which registration is sought.
15 (e) If a timely request for a hearing to contest the validity of the
16 registration is not made, the registration is confirmed as a matter of law
17 and the person requesting registration and all persons served must be
18 notified of the confirmation.
19 (f) Confirmation of a registered order, whether by operation of law
20 or after notice and hearing, precludes further contest of the order with
21 respect to any matter that could have been asserted at the time of
23 New Sec. 28. (UCCJEA 306). (a) A court of this state may grant any
24 relief normally available under the law of this state to enforce a registered
25 child-custody determination made by a court of another state.
26 (b) A court of this state shall recognize and enforce, but may not
27 modify, except in accordance with sections 13 through 22 and amend-
28 ments thereto, a registered child-custody determination of a court of an-
29 other state.
30 New Sec. 29. (UCCJEA 307). If a proceeding for enforcement under
31 this sections 23 through 39 and amendments thereto is commenced in a
32 court of this state and the court determines that a proceeding to modify
33 the determination is pending in a court of another state having jurisdiction
34 to modify the determination under sections 13 through 22 and amend-
35 ments thereto, the enforcing court shall immediately communicate with
36 the modifying court. The proceeding for enforcement continues unless
37 the enforcing court, after consultation with the modifying court, stays or
38 dismisses the proceeding.
39 New Sec. 30. (UCCJEA 308). (a) A petition under this sections 23
40 through 39 and amendments thereto, must be verified. Certified copies
41 of all orders sought to be enforced and of any order confirming registra-
42 tion must be attached to the petition. A copy of a certified copy of an
43 order may be attached instead of the original.
HB 2488 14
1 (b) A petition for enforcement of a child-custody determination must
3 (1) Whether the court that issued the determination identified the
4 jurisdictional basis it relied upon in exercising jurisdiction and, if so, what
5 the basis was;
6 (2) whether the determination for which enforcement is sought has
7 been vacated, stayed, or modified by a court whose decision must be
8 enforced under this act and, if so, identify the court, the case number,
9 and the nature of the proceeding;
10 (3) whether any proceeding has been commenced that could affect
11 the current proceeding, including proceedings relating to domestic vio-
12 lence, protective orders, termination of parental rights, and adoptions
13 and, if so, identify the court, the case number, and the nature of the
15 (4) the present physical address of the child and the respondent, if
17 (5) whether relief in addition to the immediate physical custody of
18 the child and attorney fees is sought, including a request for assistance
19 from law enforcement officials and, if so, the relief sought; and
20 (6) if the child-custody determination has been registered and con-
21 firmed under section 27 and amendments thereto, the date and place of
23 (c) Upon the filing of a petition, the court shall issue an order di-
24 recting the respondent to appear in person with or without the child at a
25 hearing and may enter any order necessary to ensure the safety of the
26 parties and the child. The hearing must be held on the next judicial day
27 after service of the order unless that date is impossible. In that event, the
28 court shall hold the hearing on the first judicial day possible. The court
29 may extend the date of hearing at the request of the petitioner.
30 (d) An order issued under subsection (c) must state the time and
31 place of the hearing and advise the respondent that at the hearing the
32 court will order that the petitioner may take immediate physical custody
33 of the child and the payment of fees, costs, and expenses under section
34 34 and amendments thereto, and may schedule a hearing to determine
35 whether further relief is appropriate, unless the respondent appears and
36 establishes that:
37 (1) The child-custody determination has not been registered and con-
38 firmed under section 27 and amendments thereto and that:
39 (A) The issuing court did not have jurisdiction under sections 13
40 through 22 and amendments thereto;
41 (B) the child-custody determination for which enforcement is sought
42 has been vacated, stayed, or modified by a court having jurisdiction to do
43 so under sections 13 through 22 and amendments thereto;
HB 2488 15
1 (C) the respondent was entitled to notice, but notice was not given
2 in accordance with the standards of section 8 and amendments thereto,
3 in the proceedings before the court that issued the order for which en-
4 forcement is sought; or
5 (2) the child-custody determination for which enforcement is sought
6 was registered and confirmed under section 26 and amendments thereto,
7 but has been vacated, stayed, or modified by a court of a state having
8 jurisdiction to do so under sections 13 through 22 and amendments
10 New Sec. 31. (UCCJEA 309). Except as otherwise provided in sec-
11 tion 33 and amendments thereto, the petition and order must be served,
12 by any method authorized by the law of this state, upon respondent and
13 any person who has physical custody of the child.
14 New Sec. 32. (UCCJEA 310). (a) Unless the court issues a temporary
15 emergency order pursuant to section 16 and amendments thereto, upon
16 a finding that a petitioner is entitled to immediate physical custody of the
17 child, the court shall order that the petitioner may take immediate phys-
18 ical custody of the child unless the respondent establishes that:
19 (1) The child-custody determination has not been registered and con-
20 firmed under section 27 and amendments thereto, and that:
21 (A) The issuing court did not have jurisdiction under sections 13
22 through 22 and amendments thereto;
23 (B) the child-custody determination for which enforcement is sought
24 has been vacated, stayed, or modified by a court of a state having juris-
25 diction to do so under sections 13 through 22 and amendments thereto;
27 (C) the respondent was entitled to notice, but notice was not given
28 in accordance with the standards of section 8 and amendments thereto,
29 in the proceedings before the court that issued the order for which en-
30 forcement is sought; or
31 (2) the child-custody determination for which enforcement is sought
32 was registered and confirmed under section 27 and amendments thereto,
33 but has been vacated, stayed, or modified by a court of a state having
34 jurisdiction to do so under sections 13 through 22 and amendments
36 (b) The court shall award the fees, costs, and expenses authorized
37 under section 34 and amendments thereto and may grant additional relief,
38 including a request for the assistance of law enforcement officials, and
39 set a further hearing to determine whether additional relief is appropriate.
40 (c) If a party called to testify refuses to answer on the ground that
41 the testimony may be self-incriminating, the court may draw an adverse
42 inference from the refusal.
43 (d) A privilege against disclosure of communications between spouses
HB 2488 16
1 and a defense of immunity based on the relationship of husband and wife
2 or parent and child may not be invoked in a proceeding under sections
3 23 through 39 and amendments thereto.
4 New Sec. 33. (UCCJEA 311). (a) Upon the filing of a petition seek-
5 ing enforcement of a child-custody determination, the petitioner may file
6 a verified application for the issuance of a warrant to take physical custody
7 of the child if the child is immediately likely to suffer serious physical
8 harm or be removed from this state.
9 (b) If the court, upon the testimony of the petitioner or other witness,
10 finds that the child is imminently likely to suffer serious physical harm or
11 be removed from this state, it may issue a warrant to take physical custody
12 of the child. The petition must be heard on the next judicial day after the
13 warrant is executed unless that date is impossible. In that event, the court
14 shall hold the hearing on the first judicial day possible. The application
15 for the warrant must include the statements required by subsection (b)
16 of section 30 and amendments thereto.
17 (c) A warrant to take physical custody of a child must:
18 (1) Recite the facts upon which a conclusion of imminent serious
19 physical harm or removal from the jurisdiction is based;
20 (2) direct law enforcement officers to take physical custody of the
21 child immediately; and
22 (3) provide for the placement of the child pending final relief.
23 (d) The respondent must be served with the petition, warrant, and
24 order immediately after the child is taken into physical custody.
25 (e) A warrant to take physical custody of a child is enforceable
26 throughout this state. If the court finds on the basis of the testimony of
27 the petitioner or other witness that a less intrusive remedy is not effective,
28 it may authorize law enforcement officers to enter private property to
29 take physical custody of the child. If required by exigent circumstances
30 of the case, the court may authorize law enforcement officers to make a
31 forcible entry at any hour.
32 (f) The court may impose conditions upon placement of a child to
33 ensure the appearance of the child and the child's custodian.
34 New Sec. 34. (UCCJEA 312). (a) The court shall award the prevail-
35 ing party, including a state, necessary and reasonable expenses incurred
36 by or on behalf of the party, including costs, communication expenses,
37 attorney fees, investigative fees, expenses for witnesses, travel expenses,
38 and child care during the course of the proceedings, unless the party from
39 whom fees or expenses are sought establishes that the award would be
40 clearly inappropriate.
41 (b) The court may not assess fees, costs, or expenses against a state
42 unless authorized by law other than this act.
43 New Sec. 35. (UCCJEA 313). A court of this state shall accord full
HB 2488 17
1 faith and credit to an order issued by another state and consistent with
2 this act which enforces a child-custody determination by a court of an-
3 other state unless the order has been vacated, stayed, or modified by a
4 court having jurisdiction to do so under sections 13 through 22 and
5 amendments thereto.
6 New Sec. 36. (UCCJEA 314). An appeal may be taken from a final
7 order in a proceeding under sections 23 through 39 and amendments
8 thereto, in accordance with expedited appellate procedures in other civil
9 cases. Unless the court enters a temporary emergency order under section
10 16 and amendments thereto, the enforcing court may not stay an order
11 enforcing a child-custody determination pending appeal.
12 New Sec. 37. (UCCJEA 315). (a) In a case arising under this act or
13 involving the Hague Convention on the civil aspects of international child
14 abduction, the prosecutor may take any lawful action, including resort to
15 a proceeding under sections 23 through 39 and amendments thereto or
16 any other available civil proceeding to locate a child, obtain the return of
17 a child, or enforce a child-custody determination if there is:
18 (1) An existing child-custody determination;
19 (2) a request to do so from a court in a pending child-custody
21 (3) a reasonable belief that a criminal statute has been violated; or
22 (4) a reasonable belief that the child has been wrongfully removed
23 or retained in violation of the Hague Convention on the civil aspects of
24 international child abduction.
25 (b) A prosecutor acting under this section acts on behalf of the court
26 and may not represent any party.
27 New Sec. 38. (UCCJEA 316). At the request of a prosecutor acting
28 under section 37 and amendments thereto, a law enforcement officer may
29 take any lawful action reasonably necessary to locate a child or a party
30 and assist a prosecutor with responsibilities under section 37 and amend-
31 ments thereto.
32 New Sec. 39. (UCCJEA 317). If the respondent is not the prevailing
33 party, the court may assess against the respondent all direct expenses and
34 costs incurred by the prosecutor and law enforcement officers under sec-
35 tion 37 or 38 and amendments thereto.
36 New Sec. 40. (UCCJEA 401). In applying and construing this uni-
37 form act, consideration must be given to the need to promote uniformity
38 of the law with respect to its subject matter among states that enact it.
39 New Sec. 41. (UCCJEA 402). If any provision of this act or its ap-
40 plication to any person or circumstance is held invalid, the invalidity does
41 not affect other provisions or applications of this act which can be given
42 effect without the invalid provision or application, and to this end the
43 provisions of this act are severable.
HB 2488 18
1 New Sec. 42. (UCCJEA 405). A motion or other request for relief
2 made in a child-custody proceeding or to enforce a child-custody deter-
3 mination which was commenced before the effective date of this act is
4 governed by the law in effect at the time the motion or other request was
6 Sec. 43. K.S.A. 38-1503 is hereby amended to read as follows: 38-
7 1503. (a) Proceedings concerning any child who appears to be a child in
8 need of care shall be governed by this code, except in those instances
9 when the Indian child welfare act of 1978 (25 U.S.C. % % 1901 et seq.)
11 (b) Subject to the uniform child custody jurisdiction and enforcement
K.S.A. 38-1301 et seq. sections 1 through 42 and amendments thereto,
13 the district court shall have original jurisdiction to receive and determine
14 proceedings under this code.
15 (c) When jurisdiction has been acquired by the court over the person
16 of a child in need of care it may continue until the child: (1) Has attained
17 the age of 21 years; (2) has been adopted; or (3) has been discharged by
18 the court. Any child 18 years of age or over may request, by motion to
19 the court, that the jurisdiction of the court cease. Subsequently, the court
20 shall enter an order discharging the person from any further jurisdiction
21 of the court.
22 (d) When it is no longer appropriate for the court to exercise juris-
23 diction over a child the court, upon its own motion or the motion of an
24 interested party, shall enter an order discharging the child. Except upon
25 request of the child, the court shall not enter an order discharging a child
26 which reaches 18 years of age before completing the child's high school
27 education until June 1 of the school year during which the child became
28 18 years of age as long as the child is still attending high school.
29 (e) Unless the court finds that substantial injustice would result, the
30 provisions of this code shall govern with respect to acts or omissions oc-
31 curring prior to the effective date of this code and with respect to children
32 alleged or adjudicated to have done or to have been affected by the acts
33 or omissions, to the same extent as if the acts or omissions had occurred
34 on or after the effective date and the children had been alleged or ad-
35 judicated to be children in need of care.
36 Sec. 44. K.S.A. 59-2128 is hereby amended to read as follows: 59-
37 2128. (a) A petition for adoption shall be filed by the person desiring to
38 adopt the child, and shall state:
39 (1) In an independent adoption: (A) The name, residence and address
40 of the petitioner;
41 (B) the name of the child, the date, time and place of the child's
42 birth, and the place at which the child resides;
43 (C) the suitability of the petitioner to assume the relationship;
HB 2488 19
1 (D) whether one or both parents are living and the name, date of
2 birth, residence and address of those living, so far as known to the
4 (E) the facts relied upon as eliminating the necessity for the consent,
5 if the consent of either or both parents is not obtained;
6 (F) the information required by the uniform child custody jurisdic-
7 tion and enforcement act under
K.S.A. 38-1309 section 21 and amend-
8 ments thereto; and
9 (G) whether the interstate compact on placement of children, K.S.A.
10 38-1201 et seq. and amendments thereto, and the Indian child welfare
11 act, 25 U.S.C. 1901 et seq., are applicable and have been or will be com-
12 plied with prior to the hearing;
13 (2) in an agency adoption, all requirements contained in subsection
14 (a)(1) except subsection (a)(1)(E), and if applicable, the factual basis upon
15 which the court should determine to exercise its jurisdiction as provided
16 in K.S.A. 59-2127 and amendments thereto; or
17 (3) in a stepparent adoption, all requirements contained in subsection
18 (a)(1) except that a statement of compliance with the interstate compact
19 on placement of children is not required.
20 (b) The written consents to adoption required by K.S.A. 59-2129, and
21 amendments thereto, the background information required by K.S.A. 59-
22 2130, and amendments thereto, the accounting required by K.S.A. 59-
23 2121 and amendments thereto and any affidavit required by K.S.A. 59-
24 2126 and amendments thereto shall be filed with the petition for adoption.
25 Sec. 45. K.S.A. 60-1604 is hereby amended to read as follows: 60-
26 1604. (a) Verification of petition. The truth of the allegations of any pe-
27 tition under this article must be verified by the petitioner in person or by
28 the guardian of an incapacitated person.
29 (b) Captions. All pleadings shall be captioned, "In the matter of the
30 marriage of ____________ and ____________." In the caption, the
31 name of the petitioner shall appear first and the name of the respondent
32 shall appear second, but the respective parties shall not be designated as
34 (c) Contents of petition. The grounds for divorce, annulment or sep-
35 arate maintenance shall be alleged as nearly as possible in the general
36 language of the statute, without detailed statement of facts. If there are
37 minor children of the marriage, the petition shall state their names and
38 dates of birth and shall contain, or be accompanied by an affidavit which
39 contains, the information required by
K.S.A. 38-1309 section 21 and
40 amendments thereto.
41 (d) Bill of particulars. The opposing party may demand a statement
42 of the facts which shall be furnished in the form of a bill of particulars.
43 The facts stated in the bill of particulars shall be the specific facts upon
HB 2488 20
1 which the action shall be tried. If interrogatories have been served on or
2 a deposition taken of the party from whom the bill of particulars is de-
3 manded, the court in its discretion may refuse to grant the demand for a
4 bill of particulars. A copy of the bill of particulars shall be delivered to
5 the judge. The bill of particulars shall not be filed with the clerk of the
6 court or become a part of the record except on appeal, and then only
7 when the issue to be reviewed relates to the facts stated in the bill of
8 particulars. The bill of particulars shall be destroyed by the district judge
9 unless an appeal is taken, in which case the bill of particulars shall be
10 destroyed upon receipt of the final order from the appellate court.
11 (e) Service of process. Service of process shall be made in the manner
12 provided in article 3 of this chapter.
13 Sec. 46. K.S.A. 60-1605 is hereby amended to read as follows: 60-
14 1605. The respondent may answer and may also file a counterpetition for
15 divorce, annulment or separate maintenance. If new matter is set up in
16 the answer, it shall be verified by the respondent in person or by the
17 guardian of an incapacitated person. If a counterpetition is filed, it shall
18 be subject to the provisions of subsections (a), (b) and (c) of K.S.A. 60-
19 1604 and amendments thereto. When there are minor children of the
20 marriage, the answer shall contain, or be accompanied by an affidavit
21 which contains, the information required by
K.S.A. 38-1309 section 21
22 and amendments thereto.
23 Sec. 47. K.S.A. 1998 Supp. 60-1610 is hereby amended to read as
24 follows: 60-1610. A decree in an action under this article may include
25 orders on the following matters:
26 (a) Minor children. (1) Child support and education. The court shall
27 make provisions for the support and education of the minor children. The
28 court may modify or change any prior order, including any order issued
29 in a title IV-D case, within three years of the date of the original order
30 or a modification order, when a material change in circumstances is
31 shown, irrespective of the present domicile of the child or the parents. If
32 more than three years has passed since the date of the original order or
33 modification order, a material change in circumstance need not be shown.
34 The court may make a modification of child support retroactive to a date
35 at least one month after the date that the motion to modify was filed with
36 the court. Any increase in support ordered effective prior to the date the
37 court's judgment is filed shall not become a lien on real property pursuant
38 to K.S.A. 60-2202 and amendments thereto. Regardless of the type of
39 custodial arrangement ordered by the court, the court may order the child
40 support and education expenses to be paid by either or both parents for
41 any child less than 18 years of age, at which age the support shall ter-
42 minate unless: (A) The parent or parents agree, by written agreement
43 approved by the court, to pay support beyond the time the child reaches
HB 2488 21
1 18 years of age; (B) the child reaches 18 years of age before completing
2 the child's high school education in which case the support shall not ter-
3 minate automatically, unless otherwise ordered by the court, until June
4 30 of the school year during which the child became 18 years of age if
5 the child is still attending high school; or (C) the child is still a bona fide
6 high school student after June 30 of the school year during which the
7 child became 18 years of age, in which case the court, on motion, may
8 order support to continue through the school year during which the child
9 becomes 19 years of age so long as the child is a bona fide high school
10 student and the parents jointly participated or knowingly acquiesced in
11 the decision which delayed the child's completion of high school. The
12 court, in extending support pursuant to subsection (a)(1)(C), may impose
13 such conditions as are appropriate and shall set the child support utilizing
14 the guideline table category for 16-year through 18-year old children.
15 Provision for payment of support and educational expenses of a child after
16 reaching 18 years of age if still attending high school shall apply to any
17 child subject to the jurisdiction of the court, including those whose sup-
18 port was ordered prior to July 1, 1992. If an agreement approved by the
19 court prior to July 1, 1988, provides for termination of support before the
20 date provided by subsection (a)(1)(B), the court may review and modify
21 such agreement, and any order based on such agreement, to extend the
22 date for termination of support to the date provided by subsection
23 (a)(1)(B). If an agreement approved by the court prior to July 1, 1992,
24 provides for termination of support before the date provided by subsec-
25 tion (a)(1)(C), the court may review and modify such agreement, and any
26 order based on such agreement, to extend the date for termination of
27 support to the date provided by subsection (a)(1)(C). For purposes of this
28 section, "bona fide high school student" means a student who is enrolled
29 in full accordance with the policy of the accredited high school in which
30 the student is pursuing a high school diploma or a graduate equivalency
31 diploma (GED). In determining the amount to be paid for child support,
32 the court shall consider all relevant factors, without regard to marital
33 misconduct, including the financial resources and needs of both parents,
34 the financial resources and needs of the child and the physical and emo-
35 tional condition of the child. Until a child reaches 18 years of age, the
36 court may set apart any portion of property of either the husband or wife,
37 or both, that seems necessary and proper for the support of the child.
38 Every order requiring payment of child support under this section shall
39 require that the support be paid through the clerk of the district court or
40 the court trustee except for good cause shown.
41 (2) Child custody and residency. (A) Changes in custody. Subject to
42 the provisions of the uniform child custody jurisdiction and enforcement
43 act (
K.S.A. 38-1301 et seq., sections 1 through 42 and amendments
HB 2488 22
1 thereto), the court may change or modify any prior order of custody when
2 a material change of circumstances is shown, but no ex parte order shall
3 have the effect of changing the custody of a minor child from the parent
4 who has had the sole de facto custody of the child to the other parent
5 unless there is sworn testimony to support a showing of extraordinary
6 circumstances. If an interlocutory order is issued ex parte, the court shall
7 hear a motion to vacate or modify the order within 15 days of the date
8 that a party requests a hearing whether to vacate or modify the order.
9 (B) Examination of parties. The court may order physical or mental
10 examinations of the parties if requested pursuant to K.S.A. 60-235 and
11 amendments thereto.
12 (3) Child custody or residency criteria. The court shall determine
13 custody or residency of a child in accordance with the best interests of
14 the child.
15 (A) If the parties have a written agreement concerning the custody
16 or residency of their minor child, it is presumed that the agreement is in
17 the best interests of the child. This presumption may be overcome and
18 the court may make a different order if the court makes specific findings
19 of fact stating why the agreement is not in the best interests of the child.
20 (B) In determining the issue of custody or residency of a child, the
21 court shall consider all relevant factors, including but not limited to:
22 (i) The length of time that the child has been under the actual care
23 and control of any person other than a parent and the circumstances
24 relating thereto;
25 (ii) the desires of the child's parents as to custody or residency;
26 (iii) the desires of the child as to the child's custody or residency;
27 (iv) the interaction and interrelationship of the child with parents,
28 siblings and any other person who may significantly affect the child's best
30 (v) the child's adjustment to the child's home, school and community;
31 (vi) the willingness and ability of each parent to respect and appre-
32 ciate the bond between the child and the other parent and to allow for a
33 continuing relationship between the child and the other parent; and
34 (vii) evidence of spousal abuse.
35 Neither parent shall be considered to have a vested interest in the
36 custody or residency of any child as against the other parent, regardless
37 of the age of the child, and there shall be no presumption that it is in the
38 best interests of any infant or young child to give custody or residency to
39 the mother.
40 (4) Types of custodial arrangements. Subject to the provisions of this
41 article, the court may make any order relating to custodial arrangements
42 which is in the best interests of the child. The order shall include, but
43 not be limited to, one of the following, in the order of preference:
HB 2488 23
1 (A) Joint custody. The court may place the custody of a child with
2 both parties on a shared or joint-custody basis. In that event, the parties
3 shall have equal rights to make decisions in the best interests of the child
4 under their custody. When a child is placed in the joint custody of the
5 child's parents, the court may further determine that the residency of the
6 child shall be divided either in an equal manner with regard to time of
7 residency or on the basis of a primary residency arrangement for the child.
8 The court, in its discretion, may require the parents to submit a plan for
9 implementation of a joint custody order upon finding that both parents
10 are suitable parents or the parents, acting individually or in concert, may
11 submit a custody implementation plan to the court prior to issuance of a
12 custody decree. If the court does not order joint custody, it shall include
13 in the record the specific findings of fact upon which the order for custody
14 other than joint custody is based.
15 (B) Sole custody. The court may place the custody of a child with one
16 parent, and the other parent shall be the noncustodial parent. The cus-
17 todial parent shall have the right to make decisions in the best interests
18 of the child, subject to the visitation rights of the noncustodial parent.
19 (C) Divided custody. In an exceptional case, the court may divide the
20 custody of two or more children between the parties.
21 (D) Nonparental custody. If during the proceedings the court deter-
22 mines that there is probable cause to believe that: (i) The child is a child
23 in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-
24 1502 and amendments thereto; (ii) neither parent is fit to have custody;
25 or (iii) the child is currently residing with such child's grandparent, grand-
26 parents, aunt or uncle and such relative has had actual physical custody
27 of such child for a significant length of time, the court may award tem-
28 porary custody of the child to such relative, another person or agency if
29 the court finds the award of custody to such relative, another person or
30 agency is in the best interests of the child. In making such a custody
31 order, the court shall give preference, to the extent that the court finds
32 it is in the best interests of the child, first to awarding such custody to a
33 relative of the child by blood, marriage or adoption and second to award-
34 ing such custody to another person with whom the child has close emo-
35 tional ties. The court may make temporary orders for care, support, ed-
36 ucation and visitation that it considers appropriate. Temporary custody
37 orders are to be entered in lieu of temporary orders provided for in K.S.A.
38 38-1542 and 38-1543, and amendments thereto, and shall remain in effect
39 until there is a final determination under the Kansas code for care of
40 children. An award of temporary custody under this paragraph shall not
41 terminate parental rights nor give the court the authority to consent to
42 the adoption of the child. When the court enters orders awarding tem-
43 porary custody of the child to an agency or a person other than the parent
HB 2488 24
1 but not a relative as described in subpart (iii), the court shall refer a
2 transcript of the proceedings to the county or district attorney. The county
3 or district attorney shall file a petition as provided in K.S.A. 38-1531 and
4 amendments thereto and may request termination of parental rights pur-
5 suant to K.S.A. 38-1581 and amendments thereto. The costs of the pro-
6 ceedings shall be paid from the general fund of the county. When a final
7 determination is made that the child is not a child in need of care, the
8 county or district attorney shall notify the court in writing and the court,
9 after a hearing, shall enter appropriate custody orders pursuant to this
10 section. If the same judge presides over both proceedings, the notice is
11 not required. Any disposition pursuant to the Kansas code for care of
12 children shall be binding and shall supersede any order under this section.
13 When the court enters orders awarding temporary custody of the child
14 to a relative as described in subpart (iii), the court shall annually review
15 the temporary custody to evaluate whether such custody is still in the best
16 interests of the child. If the court finds such custody is in the best interests
17 of the child, such custody shall continue. If the court finds such custody
18 is not in the best interests of the child, the court shall determine the
19 custody pursuant to this section.
20 (b) Financial matters. (1) Division of property. The decree shall di-
21 vide the real and personal property of the parties, including any retire-
22 ment and pension plans, whether owned by either spouse prior to mar-
23 riage, acquired by either spouse in the spouse's own right after marriage
24 or acquired by the spouses' joint efforts, by: (A) a division of the property
25 in kind; (B) awarding the property or part of the property to one of the
26 spouses and requiring the other to pay a just and proper sum; or (C)
27 ordering a sale of the property, under conditions prescribed by the court,
28 and dividing the proceeds of the sale. Upon request, the trial court shall
29 set a valuation date to be used for all assets at trial, which may be the
30 date of separation, filing or trial as the facts and circumstances of the case
31 may dictate. The trial court may consider evidence regarding changes in
32 value of various assets before and after the valuation date in making the
33 division of property. In dividing defined-contribution types of retirement
34 and pension plans, the court shall allocate profits and losses on the non-
35 participant's portion until date of distribution to that nonparticipant. In
36 making the division of property the court shall consider the age of the
37 parties; the duration of the marriage; the property owned by the parties;
38 their present and future earning capacities; the time, source and manner
39 of acquisition of property; family ties and obligations; the allowance of
40 maintenance or lack thereof; dissipation of assets; the tax consequences
41 of the property division upon the respective economic circumstances of
42 the parties; and such other factors as the court considers necessary to
43 make a just and reasonable division of property. The decree shall provide
HB 2488 25
1 for any changes in beneficiary designation on: (A) Any insurance or an-
2 nuity policy that is owned by the parties, or in the case of group life
3 insurance policies, under which either of the parties is a covered person;
4 (B) any trust instrument under which one party is the grantor or holds a
5 power of appointment over part or all of the trust assets, that may be
6 exercised in favor of either party; or (C) any transfer on death or payable
7 on death account under which one or both of the parties are owners or
8 beneficiaries. Nothing in this section shall relieve the parties of the ob-
9 ligation to effectuate any change in beneficiary designation by the filing
10 of such change with the insurer or issuer in accordance with the terms
11 of such policy.
12 (2) Maintenance. The decree may award to either party an allowance
13 for future support denominated as maintenance, in an amount the court
14 finds to be fair, just and equitable under all of the circumstances. The
15 decree may make the future payments modifiable or terminable under
16 circumstances prescribed in the decree. The court may make a modifi-
17 cation of maintenance retroactive to a date at least one month after the
18 date that the motion to modify was filed with the court. In any event, the
19 court may not award maintenance for a period of time in excess of 121
20 months. If the original court decree reserves the power of the court to
21 hear subsequent motions for reinstatement of maintenance and such a
22 motion is filed prior to the expiration of the stated period of time for
23 maintenance payments, the court shall have jurisdiction to hear a motion
24 by the recipient of the maintenance to reinstate the maintenance pay-
25 ments. Upon motion and hearing, the court may reinstate the payments
26 in whole or in part for a period of time, conditioned upon any modifying
27 or terminating circumstances prescribed by the court, but the reinstate-
28 ment shall be limited to a period of time not exceeding 121 months. The
29 recipient may file subsequent motions for reinstatement of maintenance
30 prior to the expiration of subsequent periods of time for maintenance
31 payments to be made, but no single period of reinstatement ordered by
32 the court may exceed 121 months. Maintenance may be in a lump sum,
33 in periodic payments, on a percentage of earnings or on any other basis.
34 At any time, on a hearing with reasonable notice to the party affected,
35 the court may modify the amounts or other conditions for the payment
36 of any portion of the maintenance originally awarded that has not already
37 become due, but no modification shall be made without the consent of
38 the party liable for the maintenance, if it has the effect of increasing or
39 accelerating the liability for the unpaid maintenance beyond what was
40 prescribed in the original decree. Every order requiring payment of main-
41 tenance under this section shall require that the maintenance be paid
42 through the clerk of the district court or the court trustee except for good
43 cause shown.
HB 2488 26
1 (3) Separation agreement. If the parties have entered into a separa-
2 tion agreement which the court finds to be valid, just and equitable, the
3 agreement shall be incorporated in the decree. The provisions of the
4 agreement on all matters settled by it shall be confirmed in the decree
5 except that any provisions for the custody, support or education of the
6 minor children shall be subject to the control of the court in accordance
7 with all other provisions of this article. Matters settled by an agreement
8 incorporated in the decree, other than matters pertaining to the custody,
9 support or education of the minor children, shall not be subject to sub-
10 sequent modification by the court except: (A) As prescribed by the agree-
11 ment or (B) as subsequently consented to by the parties.
12 (4) Costs and fees. Costs and attorney fees may be awarded to either
13 party as justice and equity require. The court may order that the amount
14 be paid directly to the attorney, who may enforce the order in the attor-
15 ney's name in the same case.
16 (c) Miscellaneous matters. (1) Restoration of name. Upon the request
17 of a spouse, the court shall order the restoration of that spouse's maiden
18 or former name.
19 (2) Effective date as to remarriage. Any marriage contracted by a
20 party, within or outside this state, with any other person before a judg-
21 ment of divorce becomes final shall be voidable until the decree of divorce
22 becomes final. An agreement which waives the right of appeal from the
23 granting of the divorce and which is incorporated into the decree or
24 signed by the parties and filed in the case shall be effective to shorten
25 the period of time during which the remarriage is voidable.
26 Sec. 48. K.S.A. 60-1611 is hereby amended to read as follows: 60-
27 1611. A judgment or decree of divorce rendered in any other state or
28 territory of the United States, in conformity with the laws thereof, shall
29 be given full faith and credit in this state, except that, if the respondent
30 in the action, at the time of the judgment or decree, was a resident of
31 this state and did not personally appear or defend the action in the court
32 of that state or territory and that court did not have jurisdiction over the
33 respondent's person, all matters relating to maintenance, property rights
34 of the parties and support of the minor children of the parties shall be
35 subject to inquiry and determination in any proper action or proceeding
36 brought in the courts of this state within two years after the date of the
37 foreign judgment or decree, to the same extent as though the foreign
38 judgment or decree had not been rendered. Nothing in this section shall
39 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 2 and
41 amendments thereto contrary to the provisions of the uniform child cus-
42 tody jurisdiction act.
43 Sec. 49. K.S.A. 38-1301 through 38-1326, 38-1335, 38-1503, 59-
HB 2488 27
1 2128, 60-1604, 60-1605, and 60-1611 and K.S.A. 1998 Supp. 60-1610 are
2 hereby repealed.
3 Sec. 50. This act shall take effect and be in force from and after its
4 publication in the statute book.