CINC Code 38-2270 to 38-2279
Revised Kansas Code for Care of Children Part 8
38-2270. Custody for adoption.
(a) When parental rights have been terminated and it appears that adoption is a viable alternative, the court shall enter one of the following orders:
(1) An order granting custody of the child, for adoption proceedings, to the secretary or a corporation organized under the laws of the state of Kansas authorized to care for and surrender children for adoption as provided in K.S.A. 38-112 et seq., and amendments thereto. The person, secretary or corporation shall have authority to place the child in a family home, and give consent for the legal adoption of the child which shall be the only consent required to authorize the entry of an order or decree of adoption.
(2) An order granting custody of the child to proposed adoptive parents and consenting to the adoption of the child by the proposed adoptive parents.
(b) In making an order under subsection (a), the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting such custody for adoption to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.
(c) Discharge upon adoption. When an adoption decree has been filed with the court in the child in need of care case, the secretary's custody shall cease, the court's jurisdiction over the child shall cease and the court shall enter an order to that effect.
38-2271. Presumption of unfitness, when; burden of proof.
(a) It is presumed in the manner provided in K.S.A. 60-414, and amendments thereto, that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:
(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 2015 Supp. 38-2266 et seq., and amendments thereto, or comparable proceedings under the laws of another jurisdiction;
(2) a parent has twice before been convicted of a crime specified in article 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2015 Supp. 21-6104, 21-6325, 21-6326 or 21-6418 through 21-6421, and amendments thereto, or comparable offenses under the laws of another jurisdiction, or an attempt or attempts to commit such crimes and the victim was under the age of 18 years;
(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by K.S.A. 2015 Supp. 38-2202(d)(1), (d)(3), (d)(5) or (d)(11), and amendments thereto, or comparable proceedings under the laws of another jurisdiction;
(4) the parent has been convicted of causing the death of another child or stepchild of the parent;
(5) the child has been in an out-of-home placement, under court order for a cumulative total period of one year or longer and the parent has substantially neglected or willfully refused to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home;
(6) (A) the child has been in an out-of-home placement, under court order for a cumulative total period of two years or longer; (B) the parent has failed to carry out a reasonable plan, approved by the court, directed toward reintegration of the child into the parental home; and (C) there is a substantial probability that the parent will not carry out such plan in the near future;
(7) a parent has been convicted of capital murder, K.S.A. 21-3439, prior to its repeal, or K.S.A. 2015 Supp. 21-5401, and amendments thereto, murder in the first degree, K.S.A. 21-3401, prior to its repeal, or K.S.A. 2015 Supp. 21-5402, and amendments thereto, murder in the second degree, K.S.A. 21-3402, prior to its repeal, or K.S.A. 2015 Supp. 21-5403, and amendments thereto, voluntary manslaughter, K.S.A. 21-3403, prior to its repeal, or K.S.A. 2015 Supp. 21-5404, and amendments thereto, human trafficking or aggravated human trafficking, K.S.A. 21-3446 or 21-3447, prior to their repeal, or K.S.A. 2015 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, K.S.A. 2015 Supp. 21-6422, and amendments thereto, or comparable proceedings under the laws of another jurisdiction or, has been adjudicated a juvenile offender because of an act which if committed by an adult would be an offense as provided in this subsection, and the victim of such murder was the other parent of the child;
(8) a parent abandoned or neglected the child after having knowledge of the child's birth or either parent has been granted immunity from prosecution for abandonment of the child under K.S.A. 21-3604(b), prior to its repeal, or K.S.A. 2015 Supp. 21-5605(d), and amendments thereto; or
(9) a parent has made no reasonable efforts to support or communicate with the child after having knowledge of the child's birth;
(10) a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth;
(11) a father abandoned the mother after having knowledge of the pregnancy;
(12) a parent has been convicted of rape, K.S.A. 21-3502, prior to its repeal, or K.S.A. 2015 Supp. 21-5503, and amendments thereto, or comparable proceedings under the laws of another jurisdiction resulting in the conception of the child; or
(13) a parent has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition. In making this determination the court may disregard incidental visitations, contacts, communications or contributions.
(b) The burden of proof is on the parent to rebut the presumption of unfitness by a preponderance of the evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall terminate parental rights in proceedings pursuant to K.S.A. 2015 Supp. 38-2266 et seq., and amendments thereto.
38-2272. Appointment of permanent custodian.
(a) A permanent custodian may be appointed:
(1) With the consent and agreement of the parents and approval by the court;
(2) after a finding of unfitness pursuant to K.S.A. 2015 Supp. 38-2269, and amendments thereto; or
(3) after termination of parental rights pursuant to K.S.A. 2015 Supp. 38-2270, and amendments thereto.
(b) Upon the appointment of a permanent custodian, the secretary's custody of the child shall cease. The court's jurisdiction over the child shall continue unless the court enters an order terminating jurisdiction.
(c) Subject to subsection (d), a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:
(1) Consent to an adoption of the child; and
(2) be subject to court ordered child support or medical support.
(d) When the court retains jurisdiction after appointment of a permanent custodian, the court, in its order, may impose limitations or conditions upon the rights and responsibilities of the permanent custodian including, but not limited to, the right to:
(1) Determine contact with the biological parent;
(2) consent to marriage;
(3) consent to psychosurgery, removal of a bodily organ or amputation of a limb;
(4) consent to sterilization;
(5) consent to behavioral and medical experiments;
(6) consent to withholding life-prolonging medical treatment;
(7) consent to placement in a treatment facility; or
(8) consent to placement in a psychiatric hospital or an institution for the developmentally disabled.
(e) Absent a judicial finding of unfitness or court-ordered limitations pursuant to subsection (d), a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child's best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.
(f) Parental consent to appointment of a permanent custodian shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If the consent is acknowledged before a judge of a court of record, it shall be the duty of the court before which the consent is acknowledged to advise the consenting parent of the consequences of the consent, including the following:
(1) Do you understand that your parental rights are not being terminated and you can be ordered to pay child support and medical support for your child?
(2) Do you understand that to get the rights you still have with your child, you must keep the court up to date about how to contact you? This means that the court needs to always have your current address and telephone number.
(3) Do you understand that if your child is ever placed for adoption, the court will try to let you know by using the information you have given them? If your address and telephone number are not up to date, you might not know your child is placed for adoption.
(4) Do you understand that if you want information about your child's health or education, you will have to keep the information you give the court about where you are up to date because the information will be sent to the latest address the court has?
(5) Do you understand that you may be able to have some contact with your child, but only if the permanent custodian decides it is in the child's best interests and if the court allows the contact?
(6) Do you understand that unless the court orders differently, the permanent custodian has the right to make the following decisions about your child: The amount and type of contact you have with the child; consent to your child's marriage; consent to medical treatment; consent to mental health treatment; consent to placement in a psychiatric hospital or an institution for the developmentally disabled; consent to behavioral and medical experiments; consent to sterilization and consent to withholding life-prolonging medical treatment?
(1) A consent is final when executed, unless the parent whose consent is at issue, prior to issuance of the order appointing a permanent custodian, proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with that parent.
(2) If a parent has consented to appointment of a permanent custodian based upon a belief that the child's other parent would so consent or would be found unfit, and this does not occur, the consent shall be null and void.
(h) If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the following rights and responsibilities:
(1) The obligation to pay child support and medical support; and
(2) the right to inherit from the child.
(3) The right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.
(i) If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child.
(j) Prior to appointing a permanent custodian, the court shall receive and consider an assessment of any potential permanent custodian as provided in K.S.A. 59-2132, and amendments thereto. In making an order appointing a permanent custodian the court shall give preference, to the extent that the court finds it in the child's best interests, to first appointing a permanent custodian who is a relative of the child or second a person with whom the child has close emotional ties.
(k) If permanent custodians are divorced, such custodian's marriage is annulled or the court orders separate maintenance, the court in that case has jurisdiction to make custody determinations between the permanent custodians.
38-2273. Appeals; procedure; verification; continuing jurisdiction.
(a) An appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.
(b) An appeal from an order entered by a district magistrate judge who is not regularly admitted to practice law in Kansas shall be to a district judge. The appeal shall be heard on the basis of the record within 30 days from the date the notice of appeal is filed. If no record was made of the proceedings, the trial shall be de novo.
(c) Procedure on appeal shall be governed by article 21 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
(d) Notwithstanding any other provision of law to the contrary, appeals under this section shall have priority over all other cases.
(e) Every notice of appeal, docketing statement and brief shall be verified by the appellant if the appellant has been personally served at any time during the proceedings. Failure to have the required verification shall result in the dismissal of the appeal.
(f) While a case is on appeal from the district court, the district court or magistrate court shall continue to have jurisdiction over all issues not specifically appealed and shall conduct timely permanency hearings.
38-2274. Temporary orders pending appeal; status of orders appealed from.
(a) Pending the determination of the appeal, any order appealed from shall continue in force unless modified by temporary orders as provided in subsection (b).
(b) The court on appeal, pending a hearing, may modify the order appealed from and may make any temporary orders concerning the care and custody of the child that the court considers advisable.
38-2275. Fees and expenses.
(a) When an appeal is taken pursuant to this code, fees if the guardian ad litem or of an attorney appointed to represent a parent shall be fixed by the district court. The fees, together with the costs of transcripts and records on appeal, shall be taxed as expenses on appeal. The court on appeal may assess the fees and expenses against a party or interested party or order that they be paid from the general fund of the county.
(b) When the court orders the fees and expenses assessed against a party or interested party, such fees shall be paid from the county general fund, subject to reimbursement by the party or interested party against whom the fees were assessed. The county may enforce the order as a civil judgment, except the county shall not be required to pay the docket fee or fee for execution.
38-2276. Prohibiting detainment or placement of child in jail.
No child under 18 years of age shall be detained or placed in any jail pursuant to the code.
38-2277. Determination of child support.
(a) In determining the amount of a child support order under the code, the court shall apply the Kansas child support guidelines adopted pursuant to K.S.A. 20-165, and amendments thereto.
(b) If the appropriate amount of support under the Kansas child support guidelines cannot be determined because any necessary fact is not proven by evidence or by stipulation of the appropriate parent, the court shall apply one or more of the following presumptions:
(1) Both parents have only gross earned income equal to 40 hours per week at the federal minimum wage then in effect;
(2) neither parent's income is subject to adjustment for any reason;
(3) the number of children is as alleged in the petition;
(4) the age of each child is as alleged in the petition or, if unknown, is between seven and 15 years;
(5) no adjustment for child care, health or dental insurance or income tax exemption is appropriate; or
(6) neither parent is entitled to any other credit or adjustment.
(c) If the county or district attorney determines that: (1) A parent will contest the amount of support resulting from application of the guidelines; (2) the parent is or may be entitled to an adjustment pursuant to the guidelines; and (3) it is in the child's best interests to resolve the support issue promptly and with minimal hostility, the county or district attorney may enter into a stipulation with the parent as to the amount of child support for that parent. The amount of support may be based upon one or more of the presumptions in subsection (b). Except for good cause or as otherwise provided in K.S.A. 2015 Supp. 38-2279, and amendments thereto, a stipulation under this subsection shall be binding upon the court and all parties or interested parties. The criteria for application of this subsection shall be incorporated into the journal entry or judgment form.
38-2278. Journal entry for child support.
When child support is ordered pursuant to the code, a separate journal entry or judgment form shall be made for each parent ordered to pay child support. The journal entry or judgment form shall be entitled:
"In the matter of (obligee's name) and (obligor's name) "
and shall contain no reference to the privileged official file or social file in the case except the facts necessary to establish personal jurisdiction over the parent, the name and date of birth of each child, and findings of fact and conclusions of law directly related to the child support obligation. If the court issues an income withholding order for the parent, it shall be captioned in the same manner.
38-2279. Withholding order for child support; filing; service; jurisdiction; consolidation with child in need of care case; modification.
(a) A person entitled to receive child support under an order issued pursuant to the code may file with the clerk of the district court in the county in which the judgment was rendered the original child support order and the original income withholding order, if any. If the original child support or income withholding order is unavailable for any reason, a certified or authenticated copy of the order may be substituted. The clerk of the district court shall number the child support order as a case filed under chapter 60 of the Kansas Statutes Annotated, and amendments thereto, and enter the numbering of the case on the appearance docket of the case. Registration of a child support order under this section shall be without cost or docket fee.
(b) If the number assigned to a case under the code appears in the caption of a document filed pursuant to this section, the clerk of the district court may obliterate that number and replace it with the new case number assigned pursuant to this section.
(c) The filing of the child support order shall constitute registration under this section. Upon registration of the child support order, all matters related to that order, including, but not limited to, modification of the order, shall proceed under the new case number except as otherwise provided in this section. Registration of a child support order under this section does not confer jurisdiction in the registration case for custody, residency or parenting time issues.
(d) The person registering a child support order shall serve a copy of the registered child support order and income withholding order, if any, upon the party or interested parties by first-class mail. The person registering the child support order shall file, in the official file for each child affected, either a copy of the registered order showing the new case number or a statement that includes the caption, new case number and date of registration of the child support order.
(e) If the secretary is entitled to receive payment under an order which may be registered under this section, the county or district attorney shall take the actions permitted or required in subsections (a) and (d) upon request of the secretary.
(f) A child support order registered pursuant to this section shall have the same force and effect as an original child support order entered under chapter 60 of the Kansas Statutes Annotated, and amendments thereto, including, but not limited to:
(1) The registered order shall become a lien on the real estate of the judgment debtor in the county from the date of registration;
(2) execution or other action to enforce the registered order may be had from the date of registration;
(3) the registered order may itself be registered pursuant to any law, including, but not limited to, the uniform interstate family support act, K.S.A. 23-9,101 et seq., and amendments thereto; and
(4) if any installment of support due under the registered order becomes a dormant judgment, it may be revived pursuant to K.S.A. 60-2404, and amendments thereto.
(g) Subject to the provisions of K.S.A. 23-9,207, and amendments thereto, the court in the registration case shall have continuing jurisdiction over the child support action and the parties thereto and subject matter and, except as otherwise provided in subsection (h) or (i), may modify any prior support order if a material change in circumstances is shown irrespective of the present domicile of the child or parents. If more than three years have passed since the date of the original support order or the most recent modification order, a material change in circumstances need not be shown. The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.
(h) At the direction of the judge in the child in need of care case, the registration case may be consolidated with the child in need of care case pursuant to the code of civil procedure so long as the child in need of care case is open. While the cases are consolidated, any motion to modify the registered support order shall be filed in the child in need of care case. If any support rights are assigned, the assignee shall be treated as an interested party in the consolidated cases for all proceedings involving the support order. Nothing in this subsection shall be construed to prevent or limit enforcement of the support order.
(i) If the person requesting modification of current support shows that the support order was based upon one or more of the presumptions provided in K.S.A. 2015 Supp. 38-2277, and amendments thereto, or upon a stipulation pursuant to subsection (c) of K.S.A. 2015 Supp. 38-2277, and amendments thereto, the court shall apply the Kansas child support guidelines adopted pursuant to K.S.A. 20-165, and amendments thereto, without requiring a showing that a material change of circumstances has occurred, without regard to any previous presumption or stipulation used to determine the amount of the child support order and irrespective of the present domicile of the child or parents.