Session of 1999
         
HOUSE BILL No. 2333
         
By Committee on Judiciary
          
2-9
          
  9             AN  ACT concerning the code of civil procedure; relating to provisions
10             for child support; amending K.S.A. 1998 Supp. 60-1610 and repealing
11             the existing section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1998 Supp. 60-1610 is hereby amended to read as
15       follows: 60-1610. A decree in an action under this article may include
16       orders on the following matters:
17             (a) Minor children. (1) Child support and education. The court shall
18       make provisions for the support and education of the minor children. In
19       determining the gross income of either parent for child support and ed-
20       ucation expenses, income from employment other than the parent's pri-
21       mary employment, overtime income, and bonuses earned shall not be con-
22       sidered in determining the amounts owed for such support and expenses.
23       The court may modify or change any prior order, including any order
24       issued in a title IV-D case, within three years of the date of the original
25       order or a modification order, when a material change in circumstances
26       is shown, irrespective of the present domicile of the child or the parents.
27       If more than three years has passed since the date of the original order
28       or modification order, a material change in circumstance need not be
29       shown. The court may make a modification of child support retroactive
30       to a date at least one month after the date that the motion to modify was
31       filed with the court. Any increase in support ordered effective prior to
32       the date the court's judgment is filed shall not become a lien on real
33       property pursuant to K.S.A. 60-2202 and amendments thereto. Regard-
34       less of the type of custodial arrangement ordered by the court, the court
35       may order the child support and education expenses to be paid by either
36       or both parents for any child less than 18 years of age, at which age the
37       support shall terminate unless: (A) The parent or parents agree, by written
38       agreement approved by the court, to pay support beyond the time the
39       child reaches 18 years of age; (B) the child reaches 18 years of age before
40       completing the child's high school education in which case the support
41       shall not terminate automatically, unless otherwise ordered by the court,
42       until June 30 of the school year during which the child became 18 years
43       of age if the child is still attending high school; or (C) the child is still a

HB 2333

2

  1       bona fide high school student after June 30 of the school year during
  2       which the child became 18 years of age, in which case the court, on
  3       motion, may order support to continue through the school year during
  4       which the child becomes 19 years of age so long as the child is a bona
  5       fide high school student and the parents jointly participated or knowingly
  6       acquiesced in the decision which delayed the child's completion of high
  7       school. The court, in extending support pursuant to subsection (a)(1)(C),
  8       may impose such conditions as are appropriate and shall set the child
  9       support utilizing the guideline table category for 16-year through 18-year
10       old children. Provision for payment of support and educational expenses
11       of a child after reaching 18 years of age if still attending high school shall
12       apply to any child subject to the jurisdiction of the court, including those
13       whose support was ordered prior to July 1, 1992. If an agreement ap-
14       proved by the court prior to July 1, 1988, provides for termination of
15       support before the date provided by subsection (a)(1)(B), the court may
16       review and modify such agreement, and any order based on such agree-
17       ment, to extend the date for termination of support to the date provided
18       by subsection (a)(1)(B). If an agreement approved by the court prior to
19       July 1, 1992, provides for termination of support before the date provided
20       by subsection (a)(1)(C), the court may review and modify such agreement,
21       and any order based on such agreement, to extend the date for termi-
22       nation of support to the date provided by subsection (a)(1)(C). For pur-
23       poses of this section, "bona fide high school student" means a student
24       who is enrolled in full accordance with the policy of the accredited high
25       school in which the student is pursuing a high school diploma or a grad-
26       uate equivalency diploma (GED). In determining the amount to be paid
27       for child support, the court shall consider all relevant factors, without
28       regard to marital misconduct, including the financial resources and needs
29       of both parents, the financial resources and needs of the child and the
30       physical and emotional condition of the child. Until a child reaches 18
31       years of age, the court may set apart any portion of property of either the
32       husband or wife, or both, that seems necessary and proper for the support
33       of the child. Every order requiring payment of child support under this
34       section shall require that the support be paid through the clerk of the
35       district court or the court trustee except for good cause shown.
36             (2) Child custody and residency. (A) Changes in custody. Subject to
37       the provisions of the uniform child custody jurisdiction act (K.S.A. 38-
38       1301 et seq., and amendments thereto), the court may change or modify
39       any prior order of custody when a material change of circumstances is
40       shown, but no ex parte order shall have the effect of changing the custody
41       of a minor child from the parent who has had the sole de facto custody
42       of the child to the other parent unless there is sworn testimony to support
43       a showing of extraordinary circumstances. If an interlocutory order is

HB 2333

3

  1       issued ex parte, the court shall hear a motion to vacate or modify the
  2       order within 15 days of the date that a party requests a hearing whether
  3       to vacate or modify the order.
  4             (B) Examination of parties. The court may order physical or mental
  5       examinations of the parties if requested pursuant to K.S.A. 60-235 and
  6       amendments thereto.
  7             (3) Child custody or residency criteria. The court shall determine
  8       custody or residency of a child in accordance with the best interests of
  9       the child.
10             (A) If the parties have a written agreement concerning the custody
11       or residency of their minor child, it is presumed that the agreement is in
12       the best interests of the child. This presumption may be overcome and
13       the court may make a different order if the court makes specific findings
14       of fact stating why the agreement is not in the best interests of the child.
15             (B) In determining the issue of custody or residency of a child, the
16       court shall consider all relevant factors, including but not limited to:
17             (i) The length of time that the child has been under the actual care
18       and control of any person other than a parent and the circumstances
19       relating thereto;
20             (ii) the desires of the child's parents as to custody or residency;
21             (iii) the desires of the child as to the child's custody or residency;
22             (iv) the interaction and interrelationship of the child with parents,
23       siblings and any other person who may significantly affect the child's best
24       interests;
25             (v) the child's adjustment to the child's home, school and community;
26             (vi) the willingness and ability of each parent to respect and appre-
27       ciate the bond between the child and the other parent and to allow for a
28       continuing relationship between the child and the other parent; and
29             (vii) evidence of spousal abuse.
30             Neither parent shall be considered to have a vested interest in the
31       custody or residency of any child as against the other parent, regardless
32       of the age of the child, and there shall be no presumption that it is in the
33       best interests of any infant or young child to give custody or residency to
34       the mother.
35             (4) Types of custodial arrangements. Subject to the provisions of this
36       article, the court may make any order relating to custodial arrangements
37       which is in the best interests of the child. The order shall include, but
38       not be limited to, one of the following, in the order of preference:
39             (A) Joint custody. The court may place the custody of a child with
40       both parties on a shared or joint-custody basis. In that event, the parties
41       shall have equal rights to make decisions in the best interests of the child
42       under their custody. When a child is placed in the joint custody of the
43       child's parents, the court may further determine that the residency of the

HB 2333

4

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

HB 2333

5

  1       ceedings shall be paid from the general fund of the county. When a final
  2       determination is made that the child is not a child in need of care, the
  3       county or district attorney shall notify the court in writing and the court,
  4       after a hearing, shall enter appropriate custody orders pursuant to this
  5       section. If the same judge presides over both proceedings, the notice is
  6       not required. Any disposition pursuant to the Kansas code for care of
  7       children shall be binding and shall supersede any order under this section.
  8       When the court enters orders awarding temporary custody of the child
  9       to a relative as described in subpart (iii), the court shall annually review
10       the temporary custody to evaluate whether such custody is still in the best
11       interests of the child. If the court finds such custody is in the best interests
12       of the child, such custody shall continue. If the court finds such custody
13       is not in the best interests of the child, the court shall determine the
14       custody pursuant to this section.
15             (5) Postsecondary education trust fund. (A) If a parent is ordered to
16       pay child support and the amount of such child support, pursuant to the
17       child support guidelines, is greater than $2,000 for the first child and
18       $1,500 for any additional children, it shall be discretionary with the court
19       whether to award an amount greater than $2,000 for the first child and
20       $1,500 for any additional children. If the court determines it is necessary
21       to award an amount greater than $2,000 for the first child and $1,500 for
22       any additional children, the money over and above such amounts shall be
23       placed in an educational trust fund for the benefit of such child or
24       children.
25             (B) The educational trust fund shall be used by the child or children
26       for the expenses of attending an institution of postsecondary education.
27       Such fund shall be administered by a trustee selected upon the agreement
28       of both parents. If the parents can not reach an agreement, the court shall
29       appoint a trustee.
30             (C) If the child or children are not attending an institution of postse-
31       condary education at the time such child or children reach the age of 21
32       years, such trust fund shall revert back to the parent who was ordered to
33       pay into such trust fund.
34             (D) There shall be an annual accounting of the trust fund, with both
35       parents receiving written copies of such accounting.
36             (E) If the parent who was ordered to pay into the fund dies, the fund
37       shall be distributed to the child or children when such child or children
38       reach the age of 21 years.
39             (F) This section shall not apply to any child or children who are dis-
40       abled or have special needs.
41             (G) As used in this subsection, "institution of postsecondary educa-
42       tion" means any community college, the municipal university, any state
43       educational institution, any accredited independent institution, any tech-

HB 2333

6

  1       nical college, any area vocational school, any area vocational-technical
  2       school and any foreign institution of postsecondary education, as defined
  3       in K.S.A. 74-3249, and amendments thereto.
  4             (b) Financial matters. (1) Division of property. The decree shall di-
  5       vide the real and personal property of the parties, including any retire-
  6       ment and pension plans, whether owned by either spouse prior to mar-
  7       riage, acquired by either spouse in the spouse's own right after marriage
  8       or acquired by the spouses' joint efforts, by: (A) a division of the property
  9       in kind; (B) awarding the property or part of the property to one of the
10       spouses and requiring the other to pay a just and proper sum; or (C)
11       ordering a sale of the property, under conditions prescribed by the court,
12       and dividing the proceeds of the sale. Upon request, the trial court shall
13       set a valuation date to be used for all assets at trial, which may be the
14       date of separation, filing or trial as the facts and circumstances of the case
15       may dictate. The trial court may consider evidence regarding changes in
16       value of various assets before and after the valuation date in making the
17       division of property. In dividing defined-contribution types of retirement
18       and pension plans, the court shall allocate profits and losses on the non-
19       participant's portion until date of distribution to that nonparticipant. In
20       making the division of property the court shall consider the age of the
21       parties; the duration of the marriage; the property owned by the parties;
22       their present and future earning capacities; the time, source and manner
23       of acquisition of property; family ties and obligations; the allowance of
24       maintenance or lack thereof; dissipation of assets; the tax consequences
25       of the property division upon the respective economic circumstances of
26       the parties; and such other factors as the court considers necessary to
27       make a just and reasonable division of property. The decree shall provide
28       for any changes in beneficiary designation on: (A) Any insurance or an-
29       nuity policy that is owned by the parties, or in the case of group life
30       insurance policies, under which either of the parties is a covered person;
31       (B) any trust instrument under which one party is the grantor or holds a
32       power of appointment over part or all of the trust assets, that may be
33       exercised in favor of either party; or (C) any transfer on death or payable
34       on death account under which one or both of the parties are owners or
35       beneficiaries. Nothing in this section shall relieve the parties of the ob-
36       ligation to effectuate any change in beneficiary designation by the filing
37       of such change with the insurer or issuer in accordance with the terms
38       of such policy.
39             (2) Maintenance. The decree may award to either party an allowance
40       for future support denominated as maintenance, in an amount the court
41       finds to be fair, just and equitable under all of the circumstances. The
42       decree may make the future payments modifiable or terminable under
43       circumstances prescribed in the decree. The court may make a modifi-

HB 2333

7

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

HB 2333

8

  1       of a spouse, the court shall order the restoration of that spouse's maiden
  2       or former name.
  3             (2) Effective date as to remarriage. Any marriage contracted by a
  4       party, within or outside this state, with any other person before a judg-
  5       ment of divorce becomes final shall be voidable until the decree of divorce
  6       becomes final. An agreement which waives the right of appeal from the
  7       granting of the divorce and which is incorporated into the decree or
  8       signed by the parties and filed in the case shall be effective to shorten
  9       the period of time during which the remarriage is voidable. 
10       Sec.  2. K.S.A. 1998 Supp. 60-1610 is hereby repealed.
11        Sec.  3. This act shall take effect and be in force from and after its
12       publication in the statute book.