2006 Kansas Code - 38-1542

      38-1542.   Ex parte orders of protective custody; application; determination of probable cause; period of time; placement; procedures; orders for removal of child from custody of parent, limitations. (a) The court upon verified application may issue ex parte an order directing that a child be held in protective custody and, if the child has not been taken into custody, an order directing that the child be taken into custody. The application shall state for each child:

      (1)   The applicant's belief that the child is a child in need of care and that allowing the child to remain in the home is contrary to the welfare of the child or placement is in the best interest of the child and that the child is likely to sustain harm if not immediately afforded protective custody; and

      (2)   the facts which are relied upon to support the application, including efforts known to the applicant, to maintain the family unit and prevent the unnecessary removal of the child from the child's home, or the specific facts supporting that an emergency exists which threatens the safety of the child.

      (b) (1)   The order of protective custody may be issued only after the court has determined there is probable cause to believe the allegations in the application are true. The order shall remain in effect until the temporary custody hearing provided for in K.S.A. 38-1543, and amendments thereto, unless earlier rescinded by the court.

      (2)   No child shall be held in protective custody for more than 72 hours, excluding Saturdays, Sundays and legal holidays, unless within the 72-hour period a determination is made as to the necessity for temporary custody in a temporary custody hearing. Nothing in this subsection (b)(2) shall be construed to mean that the child must remain in protective custody for 72 hours.

      (c)   Whenever the court determines the necessity for an order of protective custody, the court may place the child in the protective custody of: (1) A parent or other person having custody of the child and may enter a restraining order pursuant to subsection (e); (2) 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; (3) a youth residential facility; or (4) the secretary if the child is alleged to be a child in need of care the court may award custody to the secretary. However, 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 protective 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 protective 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 circumstances require, a child in protective custody may be placed in a juvenile detention facility or other secure facility pursuant to an order of protective custody for not to exceed 24 hours, excluding Saturdays, Sundays and legal holidays.

      (d)   The order of protective custody shall be served on the child's parents and any other person having legal custody of the child. The order shall prohibit all parties from removing the child from the court's jurisdiction without the court's permission.

      (e)   If the court issues an order of protective 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, 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 on any alleged perpetrator to whom the order is directed.

      (f)   The court shall not enter an order removing a child from the custody of a parent pursuant to this section unless the court first finds from evidence presented by the petitioner that 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 of the child and that remaining in the home is contrary to the welfare of the child or that immediate placement is in the best interest of the child. Such findings shall be included in any order entered by the court. If the child is placed in the custody of the secretary, the court shall provide the secretary with a written copy of any orders entered for the purpose of documenting these orders upon making the order.

      History:   L. 1982, ch. 182, § 35; L. 1986, ch. 161, § 4; L. 1988, ch. 138, § 7; L. 1992, ch. 318, § 10; L. 1999, ch. 156, § 6; L. 2000, ch. 150, § 9; June 1.