Adding consideration of whether the offender has physical custody of such offender's minor child or is a legal guardian or custodian with physical custody of a minor child to the factors considered for diversions and dispositional departures.

2025-2026 Regular Session

HB 2326 lets courts consider a caregiver’s physical custody of a minor child as a mitigating factor for diversions or downward departures, not guaranteed.

Died in Committee

#crimes #punishmentandcriminalprocedure

Purpose and intent

HB 2326 adds the fact that an offender has, or had at the time of the offense, physical custody of a minor child (or is a legal guardian/custodian with physical custody) to two decision-making frameworks in Kansas criminal procedure: (1) the list of mitigating factors judges may consider when imposing a dispositional departure sentence under the sentencing guidelines (K.S.A. 21‑6815); and (2) the factors considered in diversion decisions (K.S.A. 22‑2908). The stated effect is to make caregiver status a recognized non‑exclusive mitigating factor court officials may weigh when deciding diversion or downward departures.

Key provisions / changes

Amends K.S.A. 21‑6815 (sentencing guidelines): inserts a new mitigating factor in the nonexclusive list (subsection (c)(1)(G)) stating that a court may consider that the offender:

has physical custody of the offender’s minor child or is a legal guardian/custodian with physical custody at the time of sentencing; or
had physical custody of the offender’s minor child or was a legal guardian/custodian with physical custody at the time the current crime was committed.

Amends K.S.A. 22‑2908 (diversion statute) to add the same caregiver/physical‑custody consideration to the factors decisionmakers weigh when determining eligibility for and suitability of diversion.

Both additions are framed as nonexclusive, discretionary factors — they do not create an automatic entitlement to diversion or a downward departure.

Who would be affected

Defendants who are primary caregivers (parents, legal guardians, custodians) with physical custody of minor children: courts would be explicitly permitted to treat caregiver status as mitigating when considering diversion or reduced sentences.

Children and families: potential to reduce disruptions to children caused by incarceration or more severe sentencing of their caregivers.

Judiciary, prosecutors, defense counsel, probation/diversion program administrators: these actors would consider caregiver status as part of case assessment and disposition decisions.

State and local government finances: according to the Kansas Division of the Budget fiscal note (Feb 20, 2025), enactment would have a negligible fiscal effect on Judicial Branch operations.

Procedural / timeline notes

Introduced: February 3, 2025 (by the House Committee on Corrections and Juvenile Justice; requested by Brenna Visocsky on behalf of Kansas Appleseed).

Referred to: House Committee on Judiciary (per bill information).

Fiscal note issued: Feb 20, 2025 — negligible fiscal impact.

As drafted, the bill modifies existing statutory lists of mitigating/aggravating factors; courts retain discretion and must continue to state reasons on the record when departing from presumptive sentences.

Practical implications

HB 2326 expressly directs judges and diversion decisionmakers to consider caregiver status as a mitigating factor. If enacted, it may modestly increase the likelihood that primary caregivers avoid incarceration or receive diversion or lesser dispositions in appropriate cases — while preserving judicial discretion and individualized assessments.

Bill