Session of 2000
HOUSE BILL No. 2910
By Representative Landwehr
2-8
9 AN ACT
concerning domestic relations; relating to child support and
10 maintenance; amending
K.S.A. 38-1123 and K.S.A. 1999 Supp. 38-
11 1121 and 60-1610 and
repealing the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 1999 Supp. 38-1121 is hereby amended to read as
15 follows: 38-1121. (a) The judgment or order
of the court determining the
16 existence or nonexistence of the parent and
child relationship is deter-
17 minative for all purposes, but if any
person necessary to determine the
18 existence of a father and child
relationship for all purposes has not been
19 joined as a party, a determination of the
paternity of the child shall have
20 only the force and effect of a finding of
fact necessary to determine a
21 duty of support.
22 (b) If the
judgment or order of the court is at variance with the child's
23 birth certificate, the court shall order
that a new birth certificate be is-
24 sued, but only if any man named as the
father on the birth certificate is
25 a party to the action.
26 (c) Upon
adjudging that a party is the parent of a minor child, the
27 court shall make provision for support and
education of the child includ-
28 ing the necessary medical expenses incident
to the birth of the child. The
29 court may order the support and education
expenses to be paid by either
30 or both parents for the minor child. When
the child reaches 18 years of
31 age, the support shall terminate unless:
(1) The parent or parents agree,
32 by written agreement approved by the court,
to pay support beyond that
33 time; (2) the child reaches 18 years of age
before completing the child's
34 high school education in which case the
support shall not automatically
35 terminate, unless otherwise ordered by the
court, until June 30 of the
36 school year during which the child became
18 years of age if the child is
37 still attending high school; or (3) the
child is still a bona fide high school
38 student after June 30 of the school year
during which the child became
39 18 years of age, in which case the court,
on motion, may order support
40 to continue through the school year during
which the child becomes 19
41 years of age so long as the child is a bona
fide high school student and
42 the parents jointly participated or
knowingly acquiesced in the decision
43 which delayed the child's completion of
high school. The court, in ex-
2
1 tending support pursuant to
subsection (c)(3), may impose such condi-
2 tions as are appropriate and shall
set the child support utilizing the guide-
3 line table category for 16-year
through 18-year old children. Provision for
4 payment of support and educational
expenses of a child after reaching 18
5 years of age if still attending high
school shall apply to any child subject
6 to the jurisdiction of the court,
including those whose support was or-
7 dered prior to July 1, 1992. If an
agreement approved by the court prior
8 to July 1, 1988, provides for
termination of support before the date pro-
9 vided by subsection (c)(2), the court
may review and modify such agree-
10 ment, and any order based on such
agreement, to extend the date for
11 termination of support to the date provided
by subsection (c)(2). If an
12 agreement approved by the court prior to
July 1, 1992, provides for ter-
13 mination of support before the date
provided by subsection (c)(3), the
14 court may review and modify such agreement,
and any order based on
15 such agreement, to extend the date for
termination of support to the date
16 provided by subsection (c)(3). For purposes
of this section, "bona fide
17 high school student" means a student who is
enrolled in full accordance
18 with the policy of the accredited high
school in which the student is
19 pursuing a high school diploma or a
graduate equivalency diploma
20 (GED). The judgment shall specify the terms
of payment and shall re-
21 quire payment to be made through the clerk
of the district court or the
22 court trustee except for good cause shown.
If a party presents to the court
23 good cause for not paying support
through the clerk or court trustee, the
24 court shall make written findings of
fact as to the specific reasons that
25 good cause has not been shown. The
judgment may require the party to
26 provide a bond with sureties to secure
payment. The court may at any
27 time during the minority of the child
modify or change the order of sup-
28 port, including any order issued in a title
IV-D case, within three years
29 of the date of the original order or a
modification order, as required by
30 the best interest of the child. If more
than three years has passed since
31 the date of the original order or
modification order, a requirement that
32 such order is in the best interest of the
child need not be shown. The
33 court may make a modification of support
retroactive to a date at least
34 one month after the date that the motion to
modify was filed with the
35 court. Any increase in support ordered
effective prior to the date the
36 court's judgment is filed shall not become
a lien on real property pursuant
37 to K.S.A. 60-2202, and amendments
thereto.
38 (d) If both
parents are parties to the action, the court shall enter such
39 orders regarding custody and visitation as
the court considers to be in the
40 best interest of the child.
41 (e) In entering
an original order for support of a child under this
42 section, the court may award an additional
judgment to reimburse the
43 expenses of support and education of the
child from the date of birth to
3
1 the date the order is entered. If the
determination of paternity is based
2 upon a presumption arising under
K.S.A. 38-1114 and amendments
3 thereto, the court shall award an
additional judgment to reimburse all or
4 part of the expenses of support and
education of the child from at least
5 the date the presumption first arose
to the date the order is entered,
6 except that no additional judgment
need be awarded for amounts accrued
7 under a previous order for the
child's support.
8 (f) In
determining the amount to be paid by a parent for support of
9 the child and the period during which
the duty of support is owed, a court
10 enforcing the obligation of support shall
consider all relevant facts in-
11 cluding, but not limited to, the
following:
12 (1) The needs of
the child.
13 (2) The standards
of living and circumstances of the parents.
14 (3) The relative
financial means of the parents.
15 (4) The earning
ability of the parents.
16 (5) The need and
capacity of the child for education.
17 (6) The age of
the child.
18 (7) The financial
resources and the earning ability of the child.
19 (8) The
responsibility of the parents for the support of others.
20 (9) The value of
services contributed by the custodial parent.
21 (g) The
provisions of K.S.A. 23-4,107, and amendments thereto, shall
22 apply to all orders of support issued under
this section.
23 (h) An order
granting visitation rights pursuant to this section may
24 be enforced in accordance with K.S.A.
23-701, and amendments thereto.
25 Sec.
2. K.S.A. 38-1123 is hereby amended to read as follows:
38-
26 1123. (a) If existence of the father and
child relationship has been deter-
27 mined and payment of support is ordered
under prior law, the court may
28 order support and any related expenses to
be paid through the clerk of
29 the court or district court trustee. If
payment of support is ordered under
30 this act, the court shall require such
support and any related expense to
31 be paid through the clerk of the court or
the court trustee except for good
32 cause shown. If a party presents
to the court good cause for not paying
33 support through the clerk or court
trustee, the court shall make written
34 findings of fact as to the specific
reasons that good cause has not been
35 shown.
36 (b) The
provisions of K.S.A. 23-4,107 shall apply to orders of support
37 issued under this act or under the
predecessor to this act.
38 (c) Willful
failure to obey the judgment or order of the court is a civil
39 contempt of the court. All remedies for the
enforcement of judgments
40 apply.
41 Sec.
3. K.S.A. 1999 Supp. 60-1610 is hereby amended to read as
42 follows: 60-1610. A decree in an action
under this article may include
43 orders on the following matters:
4
1
(a) Minor children. (1) Child support and
education. The court shall
2 make provisions for the support and
education of the minor children. The
3 court may modify or change any prior
order, including any order issued
4 in a title IV-D case, within three
years of the date of the original order
5 or a modification order, when a
material change in circumstances is
6 shown, irrespective of the present
domicile of the child or the parents. If
7 more than three years has passed
since the date of the original order or
8 modification order, a material change
in circumstance need not be shown.
9 The court may make a modification of
child support retroactive to a date
10 at least one month after the date that the
motion to modify was filed with
11 the court. Any increase in support ordered
effective prior to the date the
12 court's judgment is filed shall not become
a lien on real property pursuant
13 to K.S.A. 60-2202 and amendments thereto.
Regardless of the type of
14 custodial arrangement ordered by the court,
the court may order the child
15 support and education expenses to be paid
by either or both parents for
16 any child less than 18 years of age, at
which age the support shall ter-
17 minate unless: (A) The parent or parents
agree, by written agreement
18 approved by the court, to pay support
beyond the time the child reaches
19 18 years of age; (B) the child reaches 18
years of age before completing
20 the child's high school education in which
case the support shall not ter-
21 minate automatically, unless otherwise
ordered by the court, until June
22 30 of the school year during which the
child became 18 years of age if
23 the child is still attending high school;
or (C) the child is still a bona fide
24 high school student after June 30 of the
school year during which the
25 child became 18 years of age, in which case
the court, on motion, may
26 order support to continue through the
school year during which the child
27 becomes 19 years of age so long as the
child is a bona fide high school
28 student and the parents jointly
participated or knowingly acquiesced in
29 the decision which delayed the child's
completion of high school. The
30 court, in extending support pursuant to
subsection (a)(1)(C), may impose
31 such conditions as are appropriate and
shall set the child support utilizing
32 the guideline table category for 16-year
through 18-year old children.
33 Provision for payment of support and
educational expenses of a child after
34 reaching 18 years of age if still attending
high school shall apply to any
35 child subject to the jurisdiction of the
court, including those whose sup-
36 port was ordered prior to July 1, 1992. If
an agreement approved by the
37 court prior to July 1, 1988, provides for
termination of support before the
38 date provided by subsection (a)(1)(B), the
court may review and modify
39 such agreement, and any order based on such
agreement, to extend the
40 date for termination of support to the date
provided by subsection
41 (a)(1)(B). If an agreement approved by the
court prior to July 1, 1992,
42 provides for termination of support before
the date provided by subsec-
43 tion (a)(1)(C), the court may review and
modify such agreement, and any
5
1 order based on such agreement, to
extend the date for termination of
2 support to the date provided by
subsection (a)(1)(C). For purposes of this
3 section, "bona fide high school
student" means a student who is enrolled
4 in full accordance with the policy of
the accredited high school in which
5 the student is pursuing a high school
diploma or a graduate equivalency
6 diploma (GED). In determining the
amount to be paid for child support,
7 the court shall consider all relevant
factors, without regard to marital
8 misconduct, including the financial
resources and needs of both parents,
9 the financial resources and needs of
the child and the physical and emo-
10 tional condition of the child. Until a
child reaches 18 years of age, the
11 court may set apart any portion of property
of either the husband or wife,
12 or both, that seems necessary and proper
for the support of the child.
13 Every order requiring payment of child
support under this section shall
14 require that the support be paid through
the clerk of the district court or
15 the court trustee except for good cause
shown. If a party presents to the
16 court good cause for not paying support
through the clerk or court trustee,
17 the court shall make written findings of
fact as to the specific reasons that
18 good cause has not been shown.
19 (2) Child
custody and residency. (A) Changes in custody. Subject
to
20 the provisions of the uniform child custody
jurisdiction act (K.S.A. 38-
21 1301 et seq., and amendments
thereto), the court may change or modify
22 any prior order of custody when a material
change of circumstances is
23 shown, but no ex parte order shall have the
effect of changing the custody
24 of a minor child from the parent who has
had the sole de facto custody
25 of the child to the other parent unless
there is sworn testimony to support
26 a showing of extraordinary circumstances.
If an interlocutory order is
27 issued ex parte, the court shall hear a
motion to vacate or modify the
28 order within 15 days of the date that a
party requests a hearing whether
29 to vacate or modify the order.
30
(B) Examination of parties. The court may order
physical or mental
31 examinations of the parties if requested
pursuant to K.S.A. 60-235 and
32 amendments thereto.
33 (3) Child
custody or residency criteria. The court shall determine
34 custody or residency of a child in
accordance with the best interests of
35 the child.
36 (A) If the
parties have a written agreement concerning the custody
37 or residency of their minor child, it is
presumed that the agreement is in
38 the best interests of the child. This
presumption may be overcome and
39 the court may make a different order if the
court makes specific findings
40 of fact stating why the agreement is not in
the best interests of the child.
41 (B) In
determining the issue of custody or residency of a child, the
42 court shall consider all relevant factors,
including but not limited to:
43 (i) The length of
time that the child has been under the actual care
6
1 and control of any person other than
a parent and the circumstances
2 relating thereto;
3 (ii) the
desires of the child's parents as to custody or residency;
4 (iii) the
desires of the child as to the child's custody or residency;
5 (iv) the
interaction and interrelationship of the child with parents,
6 siblings and any other person who may
significantly affect the child's best
7 interests;
8 (v) the
child's adjustment to the child's home, school and community;
9 (vi) the
willingness and ability of each parent to respect and appre-
10 ciate the bond between the child and the
other parent and to allow for a
11 continuing relationship between the child
and the other parent; and
12 (vii) evidence of
spousal abuse.
13 Neither parent shall
be considered to have a vested interest in the
14 custody or residency of any child as
against the other parent, regardless
15 of the age of the child, and there shall be
no presumption that it is in the
16 best interests of any infant or young child
to give custody or residency to
17 the mother.
18 (4) Types of
custodial arrangements. Subject to the provisions of this
19 article, the court may make any order
relating to custodial arrangements
20 which is in the best interests of the
child. The order shall include, but
21 not be limited to, one of the following, in
the order of preference:
22 (A) Joint
custody. The court may place the custody of a child with
23 both parties on a shared or joint-custody
basis. In that event, the parties
24 shall have equal rights to make decisions
in the best interests of the child
25 under their custody. When a child is placed
in the joint custody of the
26 child's parents, the court may further
determine that the residency of the
27 child shall be divided either in an equal
manner with regard to time of
28 residency or on the basis of a primary
residency arrangement for the child.
29 The court, in its discretion, may require
the parents to submit a plan for
30 implementation of a joint custody order
upon finding that both parents
31 are suitable parents or the parents, acting
individually or in concert, may
32 submit a custody implementation plan to the
court prior to issuance of a
33 custody decree. If the court does not order
joint custody, it shall include
34 in the record the specific findings of fact
upon which the order for custody
35 other than joint custody is based.
36 (B) Sole
custody. The court may place the custody of a child with
one
37 parent, and the other parent shall be the
noncustodial parent. The cus-
38 todial parent shall have the right to make
decisions in the best interests
39 of the child, subject to the visitation
rights of the noncustodial parent.
40 (C) Divided
custody. In an exceptional case, the court may divide the
41 custody of two or more children between the
parties.
42
(D) Nonparental custody. If during the proceedings the
court deter-
43 mines that there is probable cause to
believe that: (i) The child is a child
7
1 in need of care as defined by
subsections (a)(1), (2) or (3) of K.S.A. 38-
2 1502 and amendments thereto; (ii)
neither parent is fit to have custody;
3 or (iii) the child is currently
residing with such child's grandparent, grand-
4 parents, aunt or uncle and such
relative has had actual physical custody
5 of such child for a significant
length of time, the court may award tem-
6 porary custody of the child to such
relative, another person or agency if
7 the court finds the award of custody
to such relative, another person or
8 agency is in the best interests of
the child. In making such a custody
9 order, the court shall give
preference, to the extent that the court finds
10 it is in the best interests of the child,
first to awarding such custody to a
11 relative of the child by blood, marriage or
adoption and second to award-
12 ing such custody to another person with
whom the child has close emo-
13 tional ties. The court may make temporary
orders for care, support, ed-
14 ucation and visitation that it considers
appropriate. Temporary custody
15 orders are to be entered in lieu of
temporary orders provided for in K.S.A.
16 38-1542 and 38-1543, and amendments
thereto, and shall remain in effect
17 until there is a final determination under
the Kansas code for care of
18 children. An award of temporary custody
under this paragraph shall not
19 terminate parental rights nor give the
court the authority to consent to
20 the adoption of the child. When the court
enters orders awarding tem-
21 porary custody of the child to an agency or
a person other than the parent
22 but not a relative as described in subpart
(iii), the court shall refer a
23 transcript of the proceedings to the county
or district attorney. The county
24 or district attorney shall file a petition
as provided in K.S.A. 38-1531 and
25 amendments thereto and may request
termination of parental rights pur-
26 suant to K.S.A. 38-1581 and amendments
thereto. The costs of the pro-
27 ceedings shall be paid from the general
fund of the county. When a final
28 determination is made that the child is not
a child in need of care, the
29 county or district attorney shall notify
the court in writing and the court,
30 after a hearing, shall enter appropriate
custody orders pursuant to this
31 section. If the same judge presides over
both proceedings, the notice is
32 not required. Any disposition pursuant to
the Kansas code for care of
33 children shall be binding and shall
supersede any order under this section.
34 When the court enters orders awarding
temporary custody of the child
35 to a relative as described in subpart
(iii), the court shall annually review
36 the temporary custody to evaluate whether
such custody is still in the best
37 interests of the child. If the court finds
such custody is in the best interests
38 of the child, such custody shall continue.
If the court finds such custody
39 is not in the best interests of the child,
the court shall determine the
40 custody pursuant to this section.
41 (b) Financial
matters. (1) Division of property. The decree shall
di-
42 vide the real and personal property of the
parties, including any retire-
43 ment and pension plans, whether owned by
either spouse prior to mar-
8
1 riage, acquired by either spouse in
the spouse's own right after marriage
2 or acquired by the spouses' joint
efforts, by: (A) a division of the property
3 in kind; (B) awarding the property or
part of the property to one of the
4 spouses and requiring the other to
pay a just and proper sum; or (C)
5 ordering a sale of the property,
under conditions prescribed by the court,
6 and dividing the proceeds of the
sale. Upon request, the trial court shall
7 set a valuation date to be used for
all assets at trial, which may be the
8 date of separation, filing or trial
as the facts and circumstances of the case
9 may dictate. The trial court may
consider evidence regarding changes in
10 value of various assets before and after
the valuation date in making the
11 division of property. In dividing
defined-contribution types of retirement
12 and pension plans, the court shall allocate
profits and losses on the non-
13 participant's portion until date of
distribution to that nonparticipant. In
14 making the division of property the court
shall consider the age of the
15 parties; the duration of the marriage; the
property owned by the parties;
16 their present and future earning
capacities; the time, source and manner
17 of acquisition of property; family ties and
obligations; the allowance of
18 maintenance or lack thereof; dissipation of
assets; the tax consequences
19 of the property division upon the
respective economic circumstances of
20 the parties; and such other factors as the
court considers necessary to
21 make a just and reasonable division of
property. The decree shall provide
22 for any changes in beneficiary designation
on: (A) Any insurance or an-
23 nuity policy that is owned by the parties,
or in the case of group life
24 insurance policies, under which either of
the parties is a covered person;
25 (B) any trust instrument under which one
party is the grantor or holds a
26 power of appointment over part or all of
the trust assets, that may be
27 exercised in favor of either party; or (C)
any transfer on death or payable
28 on death account under which one or both of
the parties are owners or
29 beneficiaries. Nothing in this section
shall relieve the parties of the ob-
30 ligation to effectuate any change in
beneficiary designation by the filing
31 of such change with the insurer or issuer
in accordance with the terms
32 of such policy.
33
(2) Maintenance. The decree may award to either party
an allowance
34 for future support denominated as
maintenance, in an amount the court
35 finds to be fair, just and equitable under
all of the circumstances. The
36 decree may make the future payments
modifiable or terminable under
37 circumstances prescribed in the decree. The
court may make a modifi-
38 cation of maintenance retroactive to a date
at least one month after the
39 date that the motion to modify was filed
with the court. In any event, the
40 court may not award maintenance for a
period of time in excess of 121
41 months. If the original court decree
reserves the power of the court to
42 hear subsequent motions for reinstatement
of maintenance and such a
43 motion is filed prior to the expiration of
the stated period of time for
9
1 maintenance payments, the court shall
have jurisdiction to hear a motion
2 by the recipient of the maintenance
to reinstate the maintenance pay-
3 ments. Upon motion and hearing, the
court may reinstate the payments
4 in whole or in part for a period of
time, conditioned upon any modifying
5 or terminating circumstances
prescribed by the court, but the reinstate-
6 ment shall be limited to a period of
time not exceeding 121 months. The
7 recipient may file subsequent motions
for reinstatement of maintenance
8 prior to the expiration of subsequent
periods of time for maintenance
9 payments to be made, but no single
period of reinstatement ordered by
10 the court may exceed 121 months.
Maintenance may be in a lump sum,
11 in periodic payments, on a percentage of
earnings or on any other basis.
12 At any time, on a hearing with reasonable
notice to the party affected,
13 the court may modify the amounts or other
conditions for the payment
14 of any portion of the maintenance
originally awarded that has not already
15 become due, but no modification shall be
made without the consent of
16 the party liable for the maintenance, if it
has the effect of increasing or
17 accelerating the liability for the unpaid
maintenance beyond what was
18 prescribed in the original decree. Every
order requiring payment of main-
19 tenance under this section shall require
that the maintenance be paid
20 through the clerk of the district court or
the court trustee except for good
21 cause shown. If a party presents to the
court good cause for not paying
22 maintenance through the clerk or court
trustee, the court shall make writ-
23 ten findings of fact as to the specific
reasons that good cause has not been
24 shown.
25 (3) Separation
agreement. If the parties have entered into a separa-
26 tion agreement which the court finds to be
valid, just and equitable, the
27 agreement shall be incorporated in the
decree. The provisions of the
28 agreement on all matters settled by it
shall be confirmed in the decree
29 except that any provisions for the custody,
support or education of the
30 minor children shall be subject to the
control of the court in accordance
31 with all other provisions of this article.
Matters settled by an agreement
32 incorporated in the decree, other than
matters pertaining to the custody,
33 support or education of the minor children,
shall not be subject to sub-
34 sequent modification by the court except:
(A) As prescribed by the agree-
35 ment or (B) as subsequently consented to by
the parties.
36 (4) Costs and
fees. Costs and attorney fees may be awarded to either
37 party as justice and equity require. The
court may order that the amount
38 be paid directly to the attorney, who may
enforce the order in the attor-
39 ney's name in the same case.
40
(c) Miscellaneous matters. (1) Restoration of
name. Upon the request
41 of a spouse, the court shall order the
restoration of that spouse's maiden
42 or former name.
43 (2) Effective
date as to remarriage. Any marriage contracted by a
10
1 party, within or outside this state,
with any other person before a judg-
2 ment of divorce becomes final shall
be voidable until the decree of divorce
3 becomes final. An agreement which
waives the right of appeal from the
4 granting of the divorce and which is
incorporated into the decree or
5 signed by the parties and filed in
the case shall be effective to shorten
6 the period of time during which the
remarriage is voidable.
7 Sec. 4. K.S.A. 38-1123 and
K.S.A. 1999 Supp. 38-1121 and 60-1610
8 are hereby repealed.
9 Sec. 5. This act
shall take effect and be in force from and after its
10 publication in the statute book.