CHAPTER 78
Senate Bill No. 217
An Act concerning violations of personal rights; relating to the unlawful use of electronic tracking systems or tracking information; relating to stalking; providing criminal penalties for the conduct of utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns when done as part of an unlawful course of conduct; authorizing orders to prohibit such conduct under the Kansas family law code, the revised Kansas code for care of children, the protection from abuse act and the protection from stalking, sexual assault or human trafficking act; increasing the time of initial orders and possible extensions under the protection from abuse and protection from stalking, sexual assault and human trafficking acts; amending K.S.A. 38-2243, 38-2244 and 38-2255 and K.S.A. 2022 Supp. 21-5427, 23-2224, 23-2707, 60-3107 and 60-31a06 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 21-5427 is hereby amended to read as follows: 21-5427. (a) Stalking is:
(1) Recklessly engaging in a course of conduct targeted at a specific person which would cause a reasonable person in the circumstances of the targeted person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear;
(2) engaging in a course of conduct targeted at a specific person with knowledge that the course of conduct will place the targeted person in fear for such person’s safety or the safety of a member of such person’s immediate family;
(3) after being served with, or otherwise provided notice of, any protective order included in K.S.A. 21-3843, prior to its repeal or K.S.A. 2022 Supp. 21-5924, and amendments thereto, that prohibits contact with a targeted person, recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear; or
(4) intentionally engaging in a course of conduct targeted at a specific child under the age of 14 that would cause a reasonable person in the circumstances of the targeted child, or a reasonable person in the circumstances of an immediate family member of such child, to fear for such child’s safety.
(b) Stalking as defined in:
(1) Subsection (a)(1) is a:
(A) Class A person misdemeanor, except as provided in subsection (b)(1)(B); and
(B) severity level 7, person felony upon a second or subsequent conviction;
(2) subsection (a)(2) is a:
(A) Class A person misdemeanor, except as provided in subsection (b)(2)(B); and
(B) severity level 5, person felony upon a second or subsequent conviction;
(3) subsection (a)(3) is a:
(A) Severity level 9, person felony, except as provided in subsection (b)(3)(B); and
(B) severity level 5, person felony, upon a second or subsequent conviction; and
(4) subsection (a)(4) is a:
(A) Severity level 7, person felony, except as provided in subsection (b)(4)(B); and
(B) severity level 4, person felony, upon a second or subsequent conviction.
(c) For the purposes of this section, a person served with a protective order as defined by K.S.A. 21-3843, prior to its repeal or K.S.A. 2022 Supp. 21-5924, and amendments thereto, or a person who engaged in acts which would constitute stalking, after having been advised by a law enforcement officer, that such person’s actions were in violation of this section, shall be presumed to have acted knowingly as to any like future act targeted at the specific person or persons named in the order or as advised by the officer.
(d) In a criminal proceeding under this section, a person claiming an exemption, exception or exclusion has the burden of going forward with evidence of the claim.
(e) The present incarceration of a person alleged to be violating this section shall not be a bar to prosecution under this section.
(f) As used in this section:
(1) “Course of conduct” means two or more acts over a period of time, however short, which evidence a continuity of purpose. A course of conduct shall not include constitutionally protected activity nor conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person. A course of conduct shall include, but not be limited to, any of the following acts or a combination thereof:
(A) Threatening the safety of the targeted person or a member of such person’s immediate family;
(B) following, approaching or confronting the targeted person or a member of such person’s immediate family;
(C) appearing in close proximity to, or entering the targeted person’s residence, place of employment, school or other place where such person can be found, or the residence, place of employment or school of a member of such person’s immediate family;
(D) causing damage to the targeted person’s residence or property or that of a member of such person’s immediate family;
(E) placing an object on the targeted person’s property or the property of a member of such person’s immediate family, either directly or through a third person;
(F) causing injury to the targeted person’s pet or a pet belonging to a member of such person’s immediate family;
(G) utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns; and
(H) any act of communication;
(2) “communication” means to impart a message by any method of transmission, including, but not limited to: Telephoning, personally delivering, sending or having delivered, any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer;
(3) “computer” means a programmable, electronic device capable of accepting and processing data;
(4) “conviction” includes being convicted of a violation of K.S.A. 21-3438, prior to its repeal, this section or a law of another state which prohibits the acts that this section prohibits; and
(5) “immediate family” means:
(A) Father, mother, stepparent, child, stepchild, sibling, spouse or grandparent of the targeted person;
(B) any person residing in the household of the targeted person; or
(C) any person involved in an intimate relationship with the targeted person.
Sec. 2. K.S.A. 2022 Supp. 23-2224 is hereby amended to read as follows: 23-2224. (a) The court, without requiring bond, may make and enforce orders which that:
(1) Restrain the parties from molesting or interfering with the privacy or rights of each other, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person’s location, movement or travel patterns;
(2) confirm the existing de facto custody of the child subject to further order of the court, if the court has jurisdiction under K.S.A. 2022 Supp. 23-37,101 et seq., and amendments thereto;
(3) appoint an expert to conduct genetic tests for determination of paternity as provided in K.S.A. 2022 Supp. 23-2212, and amendments thereto;
(4) order the mother and child and alleged father to contact the court appointed expert and provide tissue samples for testing within 30 days after service of the order;
(5) order the payment of temporary child support pursuant to subsection (c); or
(6) the court deems appropriate under the provisions of article 22 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto.
(b) (1) Interlocutory orders authorized by this section that relate to genetic testing may be issued ex parte, if:
(A) The appointed expert is a paternity laboratory accredited by the American association of blood banks; and
(B) the order does not require an adverse party to make advance payment toward the cost of the test.
(2) If such ex parte orders are issued, and if an adverse party requests modification thereof, the court will conduct a hearing within 10 days of such request.
(c) After notice and hearing, the court shall enter an order for child support during the pendency of the action as provided in this subsection. The order shall be entered if the pleadings and the motion for temporary support, if separate from the pleadings, indicate there is only one presumed father and if probable paternity by the presumed father is indicated by clear and convincing evidence. For purposes of this subsection, “clear and convincing evidence” may be presented in any form, including, but not limited to, an uncontested allegation in the pleadings, an uncontested affidavit or an agreement between the parties. For purposes of this subsection, “clear and convincing evidence” means:
(1) The presumed father does not deny paternity;
(2) the mother and the presumed father were married to each other, regardless of whether the marriage was void or voidable, at any time between 300 days before the child’s birth and the child’s birth;
(3) a voluntary acknowledgment of paternity was completed by the mother and the presumed father more than 60 days before the motion was filed and no request to revoke the voluntary acknowledgment has been filed; or
(4) results of genetic tests show the probability of paternity by the presumed father is equal to or greater than 97% and the report was received more than 20 days before the motion was filed, unless written notice of intent to challenge the validity of the report has been timely given.
Sec. 3. K.S.A. 2022 Supp. 23-2707 is hereby amended to read as follows: 23-2707. (a) Permissible orders. After the filing of a petition for divorce, annulment or separate maintenance, and during the pendency of the action until the entry of final judgment the judge assigned to hear the action may, without requiring bond, make, modify, vacate and enforce by attachment, orders which that:
(1) Jointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person’s location, movement or travel patterns;
(2) restrain the parties from molesting or interfering with the privacy or rights of each other, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person’s location, movement or travel patterns;
(3) provide for the legal custody and residency of and parenting time with the minor children and the support, if necessary, of either party and of the minor children during the pendency of the action;
(4) require mediation between the parties on issues, including, but not limited to, child custody, residency, division of property, parenting time and development of a parenting plan;
(5) make provisions, if necessary, for the expenses of the suit, including reasonable attorney’s fees, that will insure to either party efficient preparation for the trial of the case;
(6) require an investigation by court service officers into any issue arising in the action; or
(7) require that each parent execute any and all documents, including any releases, necessary so that both parents may obtain information from and to communicate with any health insurance provider regarding the health insurance coverage provided by such health insurance provider to the child. The provisions of this paragraph shall apply irrespective of which parent owns, subscribes or pays for such health insurance coverage.
(b) Ex parte orders. Orders authorized by subsections (a)(1), (2), (3), (4) and (7) may be entered after ex parte hearing upon compliance with rules of the supreme court, except that no ex parte order shall have the effect of changing the residency of a minor child from the parent who has had the sole de facto residency of the child to the other parent unless there is sworn testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued ex parte, the court shall hear a motion to vacate or modify the order within 14 days of the date on which a party requests a hearing whether to vacate or modify the order. In the absence, disability, or disqualification of the judge assigned to hear the action, any other judge of the district court may make any order authorized by this section, including vacation or modification or any order issued by the judge assigned to hear the action.
(c) Support orders. (1) An order of support obtained pursuant to this section may be enforced by an order of garnishment as provided in this section.
(2) No order of garnishment shall be issued under this section unless: (A) Fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and (B) the order of support contained a notice that the order of support may be enforced by garnishment and that the party has a right to request an opportunity for a hearing to contest the issuance of an order of garnishment, if the hearing is requested by motion filed within seven days after service of the order of support upon the party. If a hearing is requested, the court shall hold the hearing within seven days after the motion requesting the hearing is filed with the court or at a later date agreed to by the parties.
(3) No bond shall be required for the issuance of an order of garnishment pursuant to this section. Except as provided in this section, garnishments authorized by this section shall be subject to the procedures and limitations applicable to other orders of garnishment authorized by law.
(4) A party desiring to have the order of garnishment issued shall file an affidavit with the clerk of the district court stating that:
(A) The order of support contained the notice required by this subsection;
(B) fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and
(C) either no hearing was requested on the issuance of an order of garnishment within the seven days after service of the order of support upon the party required to pay the same or a hearing was requested and held and the court did not prohibit the issuance of an order of garnishment.
(d) If an interlocutory order for legal custody, residency or parenting time is sought, the party seeking such order shall file a proposed temporary parenting plan as provided by K.S.A. 2022 Supp. 23-3211, and amendments thereto, at the time such order is sought. If any motion is filed to modify any such interlocutory orders, or in opposition to a request for issuance of interlocutory orders, that party shall attach to such motion or opposition a proposed alternative parenting plan.
(e) Service of process. Service of process served under subsection (a)(1) and (2) shall be by personal service and not by certified mail return receipt requested.
Sec. 4. K.S.A. 38-2243 is hereby amended to read as follows: 38-2243. (a) Upon notice and hearing, the court may issue an order directing who shall have temporary custody and may modify the order during the pendency of the proceedings as will best serve the child’s welfare.
(b) A hearing pursuant to this section shall be held within 72 hours, excluding Saturdays, Sundays, legal holidays, and days on which the office of the clerk of the court is not accessible, following a child having been taken into protective custody.
(c) Whenever it is determined that a temporary custody hearing is required, the court shall immediately set the time and place for the hearing. Notice of a temporary custody hearing shall be given to all parties and interested parties.
(d) Notice of the temporary custody hearing shall be given at least 24 hours prior to the hearing. The court may continue the hearing to afford the 24 hours prior notice or, with the consent of the party or interested party, proceed with the hearing at the designated time. If an order of temporary custody is entered and the parent or other person having custody of the child has not been notified of the hearing, did not appear or waive appearance and requests a rehearing, the court shall rehear the matter without unnecessary delay.
(e) Oral notice may be used for giving notice of a temporary custody hearing where there is insufficient time to give written notice. Oral notice is completed upon filing a certificate of oral notice.
(f) The court may enter an order of temporary custody after determining there is probable cause to believe that the:
(1) Child is dangerous to self or to others;
(2) child is not likely to be available within the jurisdiction of the court for future proceedings;
(3) health or welfare of the child may be endangered without further care;
(4) child has been subjected to human trafficking or aggravated human trafficking, as defined by K.S.A. 2022 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and amendments thereto;
(5) child is experiencing a mental health crisis and is in need of treatment; or
(6) child committed an act which, if committed by an adult, would constitute a violation of K.S.A. 2022 Supp. 21-6419, and amendments thereto.
(g) (1) Whenever the court determines the necessity for an order of temporary custody the court may place the child in the temporary custody of:
(A) A parent or other person having custody of the child and may enter a restraining order pursuant to subsection (h);
(B) a person, other than the parent or other person having custody, who shall not be required to be licensed under article 5 of chapter 65 of the Kansas Statutes Annotated, and amendments thereto;
(C) a youth residential facility;
(D) a shelter facility;
(E) a staff secure facility, notwithstanding any other provision of law, if the child has been subjected to human trafficking or aggravated human trafficking, as defined by K.S.A. 2022 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and amendments thereto, or the child committed an act which, if committed by an adult, would constitute a violation of K.S.A. 2022 Supp. 21-6419, and amendments thereto;
(F) after written authorization by a community mental health center, a juvenile crisis intervention center, as described in K.S.A. 65-536, and amendments thereto; or
(G) the secretary, if the child is 15 years of age or younger, or 16 or 17 years of age if the child has no identifiable parental or family resources or shows signs of physical, mental, emotional or sexual abuse.
(2) If the secretary presents the court with a plan to provide services to a child or family which the court finds will assure the safety of the child, the court may only place the child in the temporary custody of the secretary until the court finds the services are in place. The court shall have the authority to require any person or entity agreeing to participate in the plan to perform as set out in the plan. When the child is placed in the temporary custody of the secretary, the secretary shall have the discretionary authority to place the child with a parent or to make other suitable placement for the child. When the child is placed in the temporary custody of the secretary and the child has been subjected to human trafficking or aggravated human trafficking, as defined by K.S.A. 2022 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and amendments thereto, or the child committed an act which, if committed by an adult, would constitute a violation of K.S.A. 2022 Supp. 21-6419, and amendments thereto, the secretary shall have the discretionary authority to place the child in a staff secure facility, notwithstanding any other provision of law. When the child is presently alleged, but not yet adjudicated to be a child in need of care solely pursuant to K.S.A. 38-2202(d)(9) or (d)(10), and amendments thereto, the child may be placed in a secure facility, but the total amount of time that the child may be held in such facility under this section and K.S.A. 38-2242, and amendments thereto, shall not exceed 24 hours, excluding Saturdays, Sundays, legal holidays, and days on which the office of the clerk of the court is not accessible. The order of temporary custody shall remain in effect until modified or rescinded by the court or an adjudication order is entered but not exceeding 60 days, unless good cause is shown and stated on the record.
(h) If the court issues an order of temporary custody, the court may also enter an order restraining any alleged perpetrator of physical, sexual, mental or emotional abuse of the child from residing in the child’s home; visiting, contacting, harassing or intimidating the child; or attempting to visit, contact, harass or intimidate the child, other family members or witnesses. Such restraining order shall be served by personal service pursuant to K.S.A. 38-2237(a), and amendments thereto, on any alleged perpetrator to whom the order is directed.
(i) (1) The court shall not enter the initial order removing a child from the custody of a parent pursuant to this section unless the court first finds probable cause that: (A) (i) The child is likely to sustain harm if not immediately removed from the home;
(ii) allowing the child to remain in home is contrary to the welfare of the child; or
(iii) immediate placement of the child is in the best interest of the child; and
(B) reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home or that an emergency exists which threatens the safety to the child.
(2) Such findings shall be included in any order entered by the court. If the child is placed in the custody of the secretary, upon making the order the court shall provide the secretary with a written copy.
(j) If the court enters an order of temporary custody that provides for placement of the child with a person other than the parent, the court shall make a child support determination pursuant to K.S.A. 38-2277, and amendments thereto.
(k) For the purposes of this section, “harassing or intimidating” and “harass or intimidate” includes, but is not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns.
Sec. 5. K.S.A. 38-2244 is hereby amended to read as follows: 38-2244. (a) At any time after filing a petition, but prior to an adjudication, the court may enter an order for continuance and informal supervision without an adjudication if no party objects. Upon granting the continuance, the court shall include in the order any conditions with which the parties and interested parties are expected to comply and provide the parties and interested parties with a copy of the order. The conditions may include appropriate dispositional alternatives authorized by K.S.A. 38-2255, and amendments thereto.
(b) An order for informal supervision may remain in force for a period of up to six months and may be extended, upon hearing, for an additional six-month period for a total of one year. For a child under an order for informal supervision who remains in the custody of such child’s parent, such one-year period may be extended if no party objects, upon hearing, for up to an additional one year, with reviews by the court occurring at least every six months.
(c) The court after notice and hearing may revoke or modify the order with respect to a party or interested party upon a showing that the party or interested party, being subject to the order for informal supervision, has substantially failed to comply with the terms of the order, or that modification would be in the best interests of the child. Upon revocation, proceedings shall resume pursuant to this code.
(d) Persons subject to the order for informal supervision who successfully complete the terms and period of supervision shall not again be proceeded against in any court based solely upon the allegations in the original petition and the proceedings shall be dismissed.
(e) If the court issues an order for informal supervision pursuant to this section, the court may also enter an order restraining any alleged perpetrator of physical, mental or emotional abuse or sexual abuse of the child from residing in the child’s home, visiting, contacting, harassing or intimidating the child, other family member or witness; or attempting to visit, contact, harass or intimidate the child, other family member or witness. The restraining order shall be served by personal service pursuant to subsection (a) of K.S.A. 38-2237, and amendments thereto, on any alleged perpetrator to whom the order is directed.
(f) Lack of service on a parent shall not preclude an informal supervision under the provisions of this section. If an order of informal supervision is entered which effects change in custody, any parent not served pursuant to K.S.A. 38-2237, and amendments thereto, who has not consented to the informal supervision, may request reconsideration of the order of informal supervision. The court shall hear the request without unnecessary delay. If the informal supervision order effects a change in custody, efforts to accomplish service pursuant to K.S.A. 38-2237, and amendments thereto, shall continue.
(g) For the purposes of this section, “harassing or intimidating” and “harass or intimidate” includes, but is not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns.
Sec. 6. K.S.A. 38-2255 is hereby amended to read as follows: 38-2255. (a) Considerations. Prior to entering an order of disposition, the court shall give consideration to:
(1) The child’s physical, mental and emotional condition;
(2) the child’s need for assistance;
(3) the manner in which the parent participated in the abuse, neglect or abandonment of the child;
(4) any relevant information from the intake and assessment process; and
(5) the evidence received at the dispositional hearing.
(b) Custody with a parent. The court may place the child in the custody of either of the child’s parents subject to terms and conditions which the court prescribes to assure the proper care and protection of the child, including, but not limited to:
(1) Supervision of the child and the parent by a court services officer;
(2) participation by the child and the parent in available programs operated by an appropriate individual or agency; and
(3) any special treatment or care which the child needs for the child’s physical, mental or emotional health and safety.
(c) Removal of a child from custody of a parent. The court shall not enter the initial order removing a child from the custody of a parent pursuant to this section unless the court first finds probable cause that: (1) (A) The child is likely to sustain harm if not immediately removed from the home;
(B) allowing the child to remain in home is contrary to the welfare of the child; or
(C) immediate placement of the child is in the best interest of the child; and
(2) reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home or that an emergency exists which threatens the safety to the child.
The court shall not enter an order removing a child from the custody of a parent pursuant to this section based solely on the finding that the parent is homeless.
(d) Custody of a child removed from the custody of a parent. If the court has made the findings required by subsection (c), the court shall enter an order awarding custody to: A relative of the child or to a person with whom the child has close emotional ties who shall not be required to be licensed under article 5 of chapter 65 of the Kansas Statutes Annotated, and amendments thereto; any other suitable person; a shelter facility; a youth residential facility; a staff secure facility, notwithstanding any other provision of law, if the child has been subjected to human trafficking or aggravated human trafficking, as defined by K.S.A. 2022 Supp. 21-5426, and amendments thereto, or commercial sexual exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and amendments thereto, or the child committed an act which, if committed by an adult, would constitute a violation of K.S.A. 2022 Supp. 21-6419, and amendments thereto; or, if the child is 15 years of age or younger, or 16 or 17 years of age if the child has no identifiable parental or family resources or shows signs of physical, mental, emotional or sexual abuse, to the secretary. Custody awarded under this subsection shall continue until further order of the court.
(1) When custody is awarded to the secretary, the secretary shall consider any placement recommendation by the court and notify the court of the placement or proposed placement of the child within 10 days of the order awarding custody. After providing the parties or interested parties notice and opportunity to be heard, the court may determine whether the secretary’s placement or proposed placement is contrary to the welfare or in the best interests of the child. In making that determination the court shall consider the health and safety needs of the child and the resources available to meet the needs of children in the custody of the secretary. If the court determines that the placement or proposed placement is contrary to the welfare or not in the best interests of the child, the court shall notify the secretary, who shall then make an alternative placement.
(2) The custodian designated under this subsection shall notify the court in writing at least 10 days prior to any planned placement with a parent. The written notice shall state the basis for the custodian’s belief that placement with a parent is no longer contrary to the welfare or best interest of the child. Upon reviewing the notice, the court may allow the custodian to proceed with the planned placement or may set the date for a hearing to determine if the child shall be allowed to return home. If the court sets a hearing on the matter, the custodian shall not return the child home without written consent of the court.
(3) The court may grant any person reasonable rights to visit the child upon motion of the person and a finding that the visitation rights would be in the best interests of the child.
(4) The court may enter an order restraining any alleged perpetrator of physical, mental or emotional abuse or sexual abuse of the child from: Residing in the child’s home; visiting, contacting, harassing or intimidating the child, other family member or witness; or attempting to visit, contact, harass or intimidate the child, other family member or witness. Such restraining order shall be served by personal service pursuant to K.S.A. 38-2237(a), and amendments thereto, on any alleged perpetrator to whom the order is directed.
(5) The court shall provide a copy of any orders entered within 10 days of entering the order to the custodian designated under this subsection.
(e) Further determinations regarding a child removed from the home. If custody has been awarded under subsection (d) to a person other than a parent, a permanency plan shall be provided or prepared pursuant to K.S.A. 38-2264, and amendments thereto. If a permanency plan is provided at the dispositional hearing, the court may determine whether reintegration is a viable alternative or, if reintegration is not a viable alternative, whether the child should be placed for adoption or a permanent custodian appointed. In determining whether reintegration is a viable alternative, the court shall consider:
(1) Whether a parent has been found by a court to have committed one of the following crimes or to have violated the law of another state prohibiting such crimes or to have aided and abetted, attempted, conspired or solicited the commission of one of these crimes: (A) Murder in the first degree, K.S.A. 21-3401, prior to its repeal, or K.S.A. 2022 Supp. 21-5402, and amendments thereto; (B) murder in the second degree, K.S.A. 21-3402, prior to its repeal, or K.S.A. 2022 Supp. 21-5403, and amendments thereto; (C) capital murder, K.S.A. 21-3439, prior to its repeal, or K.S.A. 2022 Supp. 21-5401, and amendments thereto; (D) voluntary manslaughter, K.S.A. 21-3403, prior to its repeal, or K.S.A. 2022 Supp. 21-5404, and amendments thereto; or (E) a felony battery that resulted in bodily injury;
(2) whether a parent has subjected the child or another child to aggravated circumstances;
(3) whether a parent has previously been found to be an unfit parent in proceedings under this code or in comparable proceedings under the laws of another state or the federal government;
(4) whether the child has been in the custody of the secretary and placed with neither parent for 15 of the most recent 22 months beginning 60 days after the date on which a child in the secretary’s custody was removed from the child’s home;
(5) whether the parents have failed to work diligently toward reintegration;
(6) whether the secretary has provided the family with services necessary for the safe return of the child to the home; and
(7) whether it is reasonable to expect reintegration to occur within a time frame consistent with the child’s developmental needs.
(f) Proceedings if reintegration is not a viable alternative. If the court determines that reintegration is not a viable alternative, proceedings to terminate parental rights and permit placement of the child for adoption or appointment of a permanent custodian shall be initiated unless the court finds that compelling reasons have been documented in the case plan why adoption or appointment of a permanent custodian would not be in the best interests of the child. If compelling reasons have not been documented, the county or district attorney shall file a motion within 30 days to terminate parental rights or a motion to appoint a permanent custodian within 30 days and the court shall hold a hearing on the motion within 90 days of its filing. No hearing is required when the parents voluntarily relinquish parental rights or consent to the appointment of a permanent custodian.
(g) Additional Orders. In addition to or in lieu of any other order authorized by this section:
(1) The court may order the child and the parents of any child who has been adjudicated a child in need of care to attend counseling sessions as the court directs. The expense of the counseling may be assessed as an expense in the case. No mental health provider shall charge a greater fee for court-ordered counseling than the provider would have charged to the person receiving counseling if the person had requested counseling on the person’s own initiative.
(2) If the court has reason to believe that a child is before the court due, in whole or in part, to the use or misuse of alcohol or a violation of K.S.A. 2022 Supp. 21-5701 through 21-5717, and amendments thereto, by the child, a parent of the child, or another person responsible for the care of the child, the court may order the child, parent of the child or other person responsible for the care of the child to submit to and complete an alcohol and drug evaluation by a qualified person or agency and comply with any recommendations. If the evaluation is performed by a community-based alcohol and drug safety program certified pursuant to K.S.A. 8-1008, and amendments thereto, the child, parent of the child or other person responsible for the care of the child shall pay a fee not to exceed the fee established by that statute. If the court finds that the child and those legally liable for the child’s support are indigent, the fee may be waived. In no event shall the fee be assessed against the secretary.
(3) If child support has been requested and the parent or parents have a duty to support the child, the court may order one or both parents to pay child support and, when custody is awarded to the secretary, the court shall order one or both parents to pay child support. The court shall determine, for each parent separately, whether the parent is already subject to an order to pay support for the child. If the parent is not presently ordered to pay support for any child who is subject to the jurisdiction of the court and the court has personal jurisdiction over the parent, the court shall order the parent to pay child support in an amount determined under K.S.A. 38-2277, and amendments thereto. Except for good cause shown, the court shall issue an immediate income withholding order pursuant to K.S.A. 2022 Supp. 23-3101 et seq., and amendments thereto, for each parent ordered to pay support under this subsection, regardless of whether a payor has been identified for the parent. A parent ordered to pay child support under this subsection shall be notified, at the hearing or otherwise, that the child support order may be registered pursuant to K.S.A. 38-2279, and amendments thereto. The parent shall also be informed that, after registration, the income withholding order may be served on the parent’s employer without further notice to the parent and the child support order may be enforced by any method allowed by law. Failure to provide this notice shall not affect the validity of the child support order.
(h) For the purposes of this section, “harassing or intimidating” and “harass or intimidate” includes, but is not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns.
Sec. 7. K.S.A. 2022 Supp. 60-3107 is hereby amended to read as follows: 60-3107. (a) The court may approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children or grant any of the following orders:
(1) Restraining the defendant from abusing, molesting or interfering with the privacy or rights of the plaintiff or of any minor children of the parties, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person’s location, movement or travel patterns. Such order shall contain a statement that if such order is violated, such violation may constitute assault as defined in subsection (a) of K.S.A. 2022 Supp. 21-5412(a), and amendments thereto, battery as defined in subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto, domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
(2) Granting possession of the residence or household to the plaintiff to the exclusion of the defendant, and further restraining the defendant from entering or remaining upon or in such residence or household, subject to the limitation of subsection (d). Such order shall contain a statement that if such order is violated, such violation shall constitute criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp. 21-5808(a)(1)(C), and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto. The court may grant an order, which shall expire 60 days following the date of issuance, restraining the defendant from cancelling utility service to the residence or household.
(3) Requiring defendant to provide suitable, alternate housing for the plaintiff and any minor children of the parties.
(4) Awarding temporary custody and residency and establishing temporary parenting time with regard to minor children.
(5) Ordering a law enforcement officer to evict the defendant from the residence or household.
(6) Ordering support payments by a party for the support of a party’s minor child, if the party is the father or mother of the child, or the plaintiff, if the plaintiff is married to the defendant. Such support orders shall remain in effect until modified or dismissed by the court or until expiration and shall be for a fixed period of time not to exceed one year. On the motion of the plaintiff, the court may extend the effect of such order for 12 months.
(7) Awarding costs and attorney fees to either party.
(8) Making provision for the possession of personal property of the parties and ordering a law enforcement officer to assist in securing possession of that property, if necessary.
(9) Requiring any person against whom an order is issued to seek counseling to aid in the cessation of abuse.
(10) Ordering or restraining any other acts deemed necessary to promote the safety of the plaintiff or of any minor children of the parties.
(b) No protection from abuse order shall be entered against the plaintiff unless:
(1) The defendant properly files a written cross or counter petition seeking such a protection order;
(2) the plaintiff had reasonable notice of the written cross or counter petition by personal service as provided in subsection (d) of K.S.A. 60-3104(d), and amendments thereto; and
(3) the issuing court made specific findings of abuse against both the plaintiff and the defendant and determined that both parties acted primarily as aggressors and neither party acted primarily in self-defense.
(c) Any order entered under the protection from abuse act shall not be subject to modification on ex parte application or on motion for temporary orders in any action filed pursuant to K.S.A. 60-1601 et seq., prior to their transfer or repeal, or article 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, or K.S.A. 38-1101 et seq., and amendments thereto. Orders previously issued in an action filed pursuant to K.S.A. 60-1601 et seq., prior to their transfer or repeal, or article 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, or K.S.A. 38-1101 et seq., and amendments thereto, shall be subject to modification under the protection from abuse act only as to those matters subject to modification by the terms of K.S.A. 2022 Supp. 23-3201 through 23-3207 and 23-3218 and article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, and on sworn testimony to support a showing of good cause. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause. If an action is filed pursuant to K.S.A. 2022 Supp. 23-3201 through 23-3207 or 23-3218 or article 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, during the pendency of a proceeding filed under the protection from abuse act or while an order issued under the protection from abuse act is in effect, the court, on final hearing or on agreement of the parties, may issue final orders authorized by K.S.A. 2022 Supp. 23-3201 through 23-3207 and 23-3218 and articles 22 and 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, that are inconsistent with orders entered under the protection from abuse act. Any inconsistent order entered pursuant to this subsection shall be specific in its terms, reference the protection from abuse order and parts thereof being modified and a copy thereof shall be filed in both actions. The court shall consider whether the actions should be consolidated in accordance with K.S.A. 60-242, and amendments thereto. Any custody or parenting time order, or order relating to the best interests of a child, issued pursuant to the revised Kansas code for care of children or the revised Kansas juvenile justice code, shall be binding and shall take precedence over any such custody or parenting order involving the same child issued under the protection from abuse act, until jurisdiction under the revised Kansas code for care of children or the revised Kansas juvenile justice code is terminated. Any inconsistent custody or parenting order issued in the revised Kansas code for care of children case or the revised Kansas juvenile justice code case shall be specific in its terms, reference any preexisting protection from abuse order and the custody being modified, and a copy of such order shall be filed in the preexisting protection from abuse case.
(d) If the parties to an action under the protection from abuse act are not married to each other and one party owns the residence or household, the court shall not have the authority to grant possession of the residence or household under subsection (a)(2) to the exclusion of the party who owns it.
(e) Subject to the provisions of subsections (b), (c) and (d), a protective order or approved consent agreement shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year less than one year and not more than two years, except as provided in subsection subsections (e)(1) and (e)(2).
(1) Upon motion of the plaintiff, such period may be extended for one an additional year period of not less than one year and not more than three years.
(2) Upon verified motion of the plaintiff and after the defendant has been personally served with a copy of the motion and has had an opportunity to present evidence and cross-examine witnesses at a hearing on the motion, the court shall extend a protective order for not less than one additional year and may extend the protective order up to the lifetime of the defendant if the court determines by a preponderance of the evidence that the defendant has: (A) Violated a valid protection order or (A) has; (B) previously violated a valid protection order,; or (B) has (C) been convicted of a person felony or any conspiracy, criminal solicitation or attempt thereof, under the laws of Kansas or the laws of any other jurisdiction which are substantially similar to such person felony, committed against the plaintiff or any member of the plaintiff’s household, the court shall extend a protective order for not less than two additional years and may extend the protective order up to the lifetime of the defendant. No service fee shall be required for a motion filed pursuant to this subsection.
(f) The court may amend its order or agreement at any time upon motion filed by either party.
(g) No order or agreement under the protection from abuse act shall in any manner affect title to any real property.
(h) If a person enters or remains on premises or property violating an order issued pursuant to subsection (a)(2), such violation shall constitute criminal trespass as defined in subsection (a)(1)(C) of K.S.A. 2022 Supp. 21-5808(a)(1)(C), and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto. If a person abuses, molests or interferes with the privacy or rights of another violating an order issued pursuant to subsection (a)(1), such violation may constitute assault as defined in subsection (a) of K.S.A. 2022 Supp. 21-5412(a), and amendments thereto, battery as defined in subsection (a) of K.S.A. 2022 Supp. 21-5413(a), and amendments thereto, domestic battery as defined in K.S.A. 2022 Supp. 21-5414, and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
Sec. 8. K.S.A. 2022 Supp. 60-31a06 is hereby amended to read as follows: 60-31a06. (a) The court may issue a protection from stalking, sexual assault or human trafficking order granting any one or more of the following orders:
(1) Restraining the defendant from following, harassing, telephoning, contacting or otherwise communicating with the victim. The order shall contain a statement that, if the order is violated, the violation may constitute stalking as defined in K.S.A. 2022 Supp. 21-5427, and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
(2) Restraining the defendant from abusing, molesting or interfering with the privacy rights of the victim. The order shall contain a statement that, if the order is violated, the violation may constitute stalking as defined in K.S.A. 2022 Supp. 21-5427, and amendments thereto, assault as defined in K.S.A. 2022 Supp. 21-5412(a), and amendments thereto, battery as defined in K.S.A. 2022 Supp. 21-5413(a), and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
(3) Restraining the defendant from entering upon or in the victim’s residence or the immediate vicinity thereof. The order shall contain a statement that, if the order is violated, the violation shall constitute criminal trespass as defined in K.S.A. 2022 Supp. 21-5808(a)(1)(C), and amendments thereto, and violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto.
(4) Restraining the defendant from committing or attempting to commit a sexual assault upon the victim. The order shall contain a statement that, if the order is violated, the violation shall constitute violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto. The order shall also contain a statement that, if the order is violated, the violation may constitute a sex offense under article 55 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, and the accused may be prosecuted, convicted of and punished for such sex offense.
(5) Restraining the defendant from following, harassing, telephoning, contacting, recruiting, harboring, transporting, or committing or attempting to commit human trafficking upon the human trafficking victim, or otherwise communicating with the human trafficking victim. The order shall contain a statement that, if the order is violated, the violation shall constitute violation of a protective order as defined in K.S.A. 2022 Supp. 21-5924, and amendments thereto. The order shall also contain a statement that, if the order is violated, the violation may constitute an offense under chapter 21 of the Kansas Statutes Annotated, and amendments thereto, and the accused may be prosecuted, convicted of and punished for such offense.
(6) Any other order deemed necessary by the court to carry out the provisions of this act.
(b) A protection from stalking, sexual abuse assault or human trafficking order shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year less than one year and not more than two years, except as provided in subsections (c) and (d).
(c) Upon motion of the plaintiff the court may extend the order for an additional year period of not less than one year and not more than three years.
(d) Upon verified motion of the plaintiff and after the defendant has been personally served with a copy of the motion and has had an opportunity to present evidence and cross-examine witnesses at a hearing on the motion, the court shall extend a protective order for not less than two additional years and up to a period of time not to exceed the lifetime of the defendant, if the court determines by a preponderance of the evidence that the defendant has:
(1) Violated a valid protection order;
(2) previously violated a valid protection order; or
(3) been convicted of a person felony or any conspiracy, criminal solicitation or attempt thereof, under the laws of Kansas or the laws of any other jurisdiction which are substantially similar to such person felony, committed against the plaintiff or any member of the plaintiff’s household.
No service fee shall be required for a motion filed pursuant to this subsection.
(e) The court may amend its order at any time upon motion filed by either party.
(f) The court shall assess costs against the defendant and may award attorney fees to the victim in any case in which the court issues a protection from stalking, sexual assault or human trafficking order pursuant to this act. The court may award attorney fees to the defendant in any case where the court finds that the petition to seek relief pursuant to this act is without merit.
(g) A no contact or restraining provision in a protective order issued pursuant to this section shall not be construed to prevent:
(1) Contact between the attorneys representing the parties;
(2) a party from appearing at a scheduled court or administrative hearing; or
(3) a defendant or defendant’s attorney from sending the plaintiff copies of any legal pleadings filed in court relating to civil or criminal matters presently relevant to the plaintiff.
(h) For the purposes of this section, “harassing” or “interfering with the privacy rights” includes, but is not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the targeted person’s location, movement or travel patterns.
Sec. 9. K.S.A. 38-2243, 38-2244 and 38-2255 and K.S.A. 2022 Supp. 21-5427, 23-2224, 23-2707, 60-3107 and 60-31a06 are hereby repealed.
Sec. 10. This act shall take effect and be in force from and after its publication in the statute book.
Approved April 24, 2023.
