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Kansas House Bill HB2675

Kansas 2023-2024 Regular Session

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11 Session of 2024
22 HOUSE BILL No. 2675
33 By Committee on Judiciary
44 Requested by Laura Nordgren on behalf of the Kansas Judicial Council
55 2-1
66 AN ACT concerning children and minors; enacting the uniform nonparent
77 visitation act; removing provisions related to grandparent and
88 stepparent visitation rights; repealing K.S.A. 23-3301, 23-3302, 23-
99 3303 and 23-3304.
1010 Be it enacted by the Legislature of the State of Kansas:
1111 Section 1. Sections 1 through 20, and amendments thereto, shall be
1212 known and may be cited as the uniform nonparent visitation act.
1313 Sec. 2. As used in this act:
1414 (a) "Child" means an unemancipated individual who is less than 18
1515 years of age.
1616 (b) "Compensation" means wages or other remuneration paid in
1717 exchange for care of a child. "Compensation" does not include
1818 reimbursement of expenses for care of the child, including payment for
1919 food, clothing and medical expenses.
2020 (c) "Consistent caretaker" means a nonparent who meets the
2121 requirements of section 4(b), and amendments thereto.
2222 (d) "Custody" means physical custody, legal custody or both.
2323 (e) "Harm to a child" means significant adverse effect on a child's
2424 physical, emotional or psychological well-being.
2525 (f) "Legal custody" means the right to make significant decisions
2626 regarding a child, including decisions regarding a child's education,
2727 healthcare and scheduled activity.
2828 (g) "Nonparent" means an individual, other than a parent or person
2929 acting as a parent of a child. "Nonparent" includes a grandparent, sibling
3030 or stepparent of a child.
3131 (h) "Parent" means an individual recognized as a parent under the
3232 laws of Kansas.
3333 (i) "Person" means an individual, estate, business or nonprofit entity,
3434 public corporation, government or governmental subdivision, agency,
3535 instrumentality or other legal entity.
3636 (j) "Person acting as a parent" means a person, other than a parent,
3737 who:
3838 (1) Has physical custody of the child or has had physical custody for
3939 a period of six consecutive months, including any temporary absence,
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7575 within one year immediately preceeding the commencement of a child
7676 custody proceeding; and
7777 (2) has been awarded legal custody by a court or claims a right to
7878 legal custody under the laws of Kansas.
7979 (k) "Physical custody" means living with a child and exercising day-
8080 to-day care of the child.
8181 (l) "Record" means information that is inscribed on a tangible
8282 medium or that is stored in an electronic or other medium and is
8383 retrievable in perceivable form.
8484 (m) "State" means a state of the United States, the District of
8585 Columbia, Puerto Rico, the United States Virgin Islands or any territory or
8686 insular possession subject to the jurisdiction of the United States. "State"
8787 includes a federally recognized Indian tribe.
8888 (n) "Substantial relationship with the child" means a relationship
8989 between a nonparent and child that meets the requirements of section 4(c),
9090 and amendments thereto.
9191 (o) "Visitation" means the right to spend time with a child who is
9292 living with another person and may include an overnight stay.
9393 Sec. 3. (a) Except as provided in subsection (b), this act applies to a
9494 proceeding in which a nonparent seeks visitation, including proceedings in
9595 which the child has a guardian pursuant to article 30 of chapter 59 of the
9696 Kansas Statutes Annotated, and amendments thereto, or a permanent
9797 custodian pursuant to article 22 of chapter 38 of the Kansas Statutes
9898 Annotated, and amendments thereto.
9999 (b) This act does not apply to a proceeding:
100100 (1) Between nonparents, unless a parent or person acting as a parent
101101 is a party to the proceeding;
102102 (2) pertaining to visitation with an Indian child as defined in the
103103 Indian child welfare act of 1978, 25 U.S.C. § 1903(4), to the extent the
104104 proceeding is governed by the Indian child welfare act of 1978, 25 U.S.C.
105105 §§ 1901 through 1963; and
106106 (3) pertaining to a child who is the subject of an ongoing proceeding
107107 under article 22 of chapter 38 of the Kansas Statutes Annotated, and
108108 amendments thereto, or a substantially similar proceeding in another state.
109109 (c) A nonparent shall not maintain a proceeding under this act for
110110 visitation with a child solely because the nonparent served as a foster
111111 parent of the child.
112112 (d) An individual whose parental rights concerning a child have been
113113 terminated shall not maintain a proceeding under this act concerning such
114114 child.
115115 (e) Relief under this act is not available during the period of a
116116 visitation order entered under K.S.A. 23-3217, and amendments thereto, or
117117 other order related to visitation with a child of a deployed parent. A
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161161 visitation order entered before a parent was deployed remains in effect
162162 unless modified by the court.
163163 Sec. 4. (a) A court may order visitation to a nonparent only if the
164164 nonparent proves that:
165165 (1) The denial of visitation would result in harm to the child;
166166 (2) the nonparent:
167167 (A) Is or has been a consistent caretaker as described in subsection
168168 (b) within one year of the initiation of the action; or
169169 (B) has a substantial relationship with the child as described in
170170 subsection (c); and
171171 (3) an order of visitation to the nonparent is in the best interest of the
172172 child applying the factors in section 11, and amendments thereto.
173173 (b) A nonparent is a consistent caretaker if the nonparent, without
174174 expectation of compensation:
175175 (1) Lived with the child for not less than 12 months, unless the court
176176 finds good cause to accept a shorter period;
177177 (2) regularly exercised care of the child;
178178 (3) made day-to-day decisions regarding the child solely or in
179179 cooperation with an individual having physical custody of the child; and
180180 (4) established a bonded and dependent relationship with the child
181181 with the express or implied consent of a parent of the child or without the
182182 consent of a parent if no parent has been able or willing to perform
183183 parenting functions.
184184 (c) A nonparent has a substantial relationship with the child if:
185185 (1) The nonparent:
186186 (A) Is an individual with a familiar relationship with the child by
187187 blood or law; or
188188 (B) formed a relationship with the child without expectation of
189189 compensation;
190190 (2) a significant emotional bond exists between the nonparent and the
191191 child from the child's point of view; and
192192 (3) the nonparent:
193193 (A) Regularly exercised care of the child; and
194194 (B) established a bonded and dependent relationship with the child
195195 with the express or implied consent of a parent of the child or without the
196196 consent of a parent if no parent has been able or willing to perform
197197 parenting functions.
198198 Sec. 5. (a) In an initial proceeding under this act, there is a rebuttable
199199 presumption that a decision by a parent regarding a request for visitation
200200 by a nonparent is in the best interest of the child.
201201 (b) Subject to section 13, and amendments thereto, a nonparent has
202202 the burden to rebut the presumption described in subsection (a) by clear
203203 and convincing evidence of the facts required by section 4(a), and
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247247 amendments thereto. Proof of unfitness of a parent is not required to rebut
248248 the presumption described in subsection (a).
249249 Sec. 6. A nonparent may commence a proceeding by filing a petition
250250 under section 7, and amendments thereto, in the court having jurisdiction
251251 to determine visitation under the uniform child custody jurisdiction and
252252 enforcement act, K.S.A. 23-37,101 through 23-37,405, and amendments
253253 thereto.
254254 Sec. 7. (a) A nonparent shall verify a petition for vistitation under
255255 penalty of perjury and allege facts showing that the nonparent:
256256 (1) Meets the requirements of a consistent caretaker of the child as
257257 described in section 4(b), and amendments thereto; or
258258 (2) has a substantial relationship with the child as described in section
259259 4(c), and amendments thereto, and denial of visitation would result in
260260 harm to the child.
261261 (b) A petition under subsection (a) shall state the relief sought and
262262 allege specific facts showing:
263263 (1) The duration and nature of the relationship between the nonparent
264264 and the child, including the period, if any, the nonparent lived with the
265265 child and the care provided;
266266 (2) the content of any agreement between the parties to the
267267 proceeding regarding care of the child and custody of or visitation or other
268268 contact with the child;
269269 (3) a description of any previous attempt by the nonparent to obtain
270270 visitation or other contact with the child;
271271 (4) the extent to which the parent is willing to permit the nonparent to
272272 have visitation or other contact with the child;
273273 (5) information about compensation or expectation of compensation
274274 provided to the nonparent in exchange for care of the child;
275275 (6) information required to establish the jurisdiction of the court
276276 under the uniform child custody jurisdiction and enforcement act, K.S.A.
277277 23-37,101 through 23-37,405, and amendments thereto;
278278 (7) the reason the requested visitation is in the best interest of the
279279 child, applying the factors in section 11, and amendments thereto; and
280280 (8) if the nonparent alleges a substantial relationship with the child,
281281 the reason denial of visitation to the nonparent would result in harm to the
282282 child.
283283 (c) If an agreement described in subsection (b)(2) is in a record, the
284284 nonparent shall attach a copy of the agreement to the petition.
285285 Sec. 8. (a) Based on the petition described in section 7, and
286286 amendments thereto, the court shall determine whether the nonparent has
287287 pleaded a prima facie case that:
288288 (1) A denial of visitation would result in harm to the child;
289289 (2) the nonparent:
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333333 (A) Is or has been a consistent caretaker, as described in section 4(b),
334334 and amendments thereto, during the year immediately preceding filing of
335335 the action; or
336336 (B) has a substantial relationship with the child, as described in
337337 section 4(c), and amendments thereto; and
338338 (3) an order of visitation to the nonparent is in the best interest of the
339339 child applying the factors in section 11, and amendments thereto.
340340 (b) If the court determines that the nonparent has not pleaded a prima
341341 facie case, the court shall dismiss the petition.
342342 Sec. 9. On commencement of a proceeding under the act, the
343343 nonparent shall give notice as described in article 3 of chapter 60 of the
344344 Kansas Statutes Annotated, and amendments thereto, to each:
345345 (a) Parent of the child who is the subject of the proceeding;
346346 (b) person having custody of the child;
347347 (c) individual having court-ordered visitation with the child; and
348348 (d) attorney, guardian ad litem or similar representative appointed for
349349 the child.
350350 Sec. 10. In the manner and to the extent authorized by chapter 23 of
351351 the Kansas Statutes Annotated, and amendments thereto, the court may do
352352 one or more of the following:
353353 (a) Appoint a guardian ad litem for the child;
354354 (b) interview the child if such child is of sufficient age and maturity;
355355 (c) require the parties to participate in mediation or another form of
356356 alternative dispute resolution, except that a party who has been the victim
357357 of a domestic violence offense, as defined in K.S.A. 21-5111, and
358358 amendments thereto, a sex offense described in article 55 of chapter 21 of
359359 the Kansas Statutes Annotated, and amendments thereto, stalking as
360360 described in K.S.A. 21-5427, and amendments thereto, or other offense
361361 committed by another party to the proceeding shall not be required to
362362 participate unless reasonable procedures are in place to protect the party
363363 from a risk of harm, harassment or intimidation; or
364364 (d) order an evaluation, investigation or other assessment of the
365365 child's circumstances and the effect on the child of ordering or denying the
366366 requested visitation or modifying a visitation order.
367367 Sec. 11. (a) When determining whether an order of visitation to a
368368 nonparent is in the best interest of a child, the court shall consider:
369369 (1) The nature and extent of the relationship between the child and
370370 the parent;
371371 (2) the nature and extent of the relationship between the child and the
372372 nonparent;
373373 (3) past or present conduct by a party or individual living with a party
374374 that poses a risk to the physical, emotional or psychological well-being of
375375 the child;
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419419 (4) the likely impact of the requested order on the relationship
420420 between the child and the parent;
421421 (5) the applicable factors in K.S.A. 23-3203, and amendments
422422 thereto; and
423423 (6) any other factor affecting the best interest of the child.
424424 (b) The court may consider the views of the child, taking into account
425425 the age and maturity of the child.
426426 Sec. 12. (a) The court shall presume that ordering visitation to a
427427 nonparent is not in the best interest of the child if the court finds that the
428428 nonparent or an individual living with the nonparent has:
429429 (1) Committed abuse of a child as described in K.S.A. 21-5602, and
430430 amendments thereto;
431431 (2) committed abandonment of a child or aggravated abandonment of
432432 a child as described in K.S.A. 21-5605, and amendments thereto;
433433 (3) committed a domestic violence offense as defined in K.S.A. 21-
434434 5111, and amendments thereto;
435435 (4) committed a sex offense described in article 55 of chapter 21 of
436436 the Kansas Statutes Annotated, and amendments thereto;
437437 (5) committed stalking as described in K.S.A. 21-5427, and
438438 amendments thereto;
439439 (6) been subject to registration requirements under the Kansas
440440 offender registration act, K.S.A. 22-4901 et seq., and amendments thereto;
441441 or
442442 (7) committed an offense or been subjected to a registration
443443 requirement in another state that is comparable to those described in
444444 paragraphs (1) through (6).
445445 (b) A finding that conduct described in subsection (a) occurred shall
446446 be based on:
447447 (1) Evidence of a conviction in a criminal proceeding or final
448448 judgment in a civil proceeding; or
449449 (2) proof by a preponderance of the evidence.
450450 (c) A nonparent may rebut the presumption described in subsection
451451 (a) by proving by clear and convincing evidence that ordering visitation to
452452 the nonparent will not endanger the health, safety or welfare of the child
453453 and is in the best interest of the child.
454454 Sec. 13. (a) On verified motion subject to subsection (c), the court
455455 may modify a final visitation order on a showing by a preponderance of
456456 the evidence that:
457457 (1) A material change in circumstance has occurred relevant to the
458458 visitation with the child; and
459459 (2) modification is in the best interest of the child.
460460 (b) Except as provided in subsection (c), if a nonparent has rebutted
461461 the presumption described in section 5, and amendments thereto, in an
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505505 initial proceeding, the presumption remains rebutted.
506506 (c) On agreement of the parties, the court may modify a visitation
507507 order unless the court finds that the agreement is not in the best interest of
508508 the child.
509509 Sec. 14. When issuing a final order of visitation, the court shall make
510510 findings of fact and conclusions of law as required by K.S.A. 60-252, and
511511 amendments thereto, in support of its decision or, if the petition is
512512 dismissed pursuant to section 8, and amendments thereto, or a motion for
513513 modification is denied pursuant to section 13, and amendments thereto,
514514 state the reasons for the dismissal or denial.
515515 Sec. 15. (a) (1) A nonparent who is entitled to visitation with a child
516516 under this act shall give written notice to the parent if the nonparent:
517517 (A) Is subject to the registration requirements of the Kansas offender
518518 registration act, K.S.A. 22-4901 et seq., and amendments thereto, or any
519519 comparable registration requirements of another jurisdiction;
520520 (B) has been convicted of abuse of a child as described in K.S.A. 21-
521521 5602, and amendments thereto; or
522522 (C) is residing with an individual who is known by the nonparent to
523523 be subject to the registration requirements or convicted as described in
524524 subparagraphs (A) or (B).
525525 (2) The notice described in this subsection shall be sent by restricted
526526 mail, return receipt requested, to the last known address of the parent
527527 within 14 days following knowledge of an event described in paragraph
528528 (1).
529529 (b) Failure to give notice as required in this section is an indirect civil
530530 contempt punishable as provided by law. The court may order the
531531 nonparent required to give notice to pay reasonable attorney fees and any
532532 other expenses incurred by the parent as a result of the failure to give
533533 notice.
534534 (c) An event described in subsection (a)(1) may be considered a
535535 material change of circumstances that justifies modification of a prior
536536 order of visitation.
537537 Sec. 16. (a) The expense of facilitating visitation, including the
538538 expense of transportation, shall be paid by the nonparent unless the court
539539 determines justice and equity require otherwise.
540540 (b) The nonparent shall pay for services ordered under section 10,
541541 and amendments thereto, unless the court determines that justice and
542542 equity require otherwise.
543543 (c) Costs and reasonable attorney fees shall be awarded to the parent
544544 or person acting as a parent unless the court determines that justice and
545545 equity require otherwise.
546546 Sec. 17. In applying and construing this uniform act, consideration
547547 shall be given to the need to promote uniformity of the law with respect to
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591591 its subject matter among states that enact it.
592592 Sec. 18. This act modifies, limits or supersedes the electronic
593593 signatures in global and national commerce act, 15 U.S.C. § 7001 et seq.,
594594 but does not modify, limit or supersede section 101(c) of that act, 15
595595 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices
596596 described in section 103(b) of that act, 15 U.S.C. § 7003(b).
597597 Sec. 19. This act applies to a proceeding:
598598 (a) Commenced before July 1, 2024, in which a final order has not
599599 been entered; and
600600 (b) commenced on or after July 1, 2024.
601601 Sec. 20. If any provision of this act or its application to any person or
602602 circumstance is held invalid, the invalidity does not affect other provisions
603603 of applications of this act that can be given effect without the invalid
604604 provisions or application, and to this end the provisions of this act are
605605 severable.
606606 Sec. 21. K.S.A. 23-3301, 23-3302, 23-3303 and 23-3304 are hereby
607607 repealed.
608608 Sec. 22. This act shall take effect and be in force from and after its
609609 publication in the statute book.
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