SF 2673

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to family law; providing for custody of 
  1.3             children by de facto custodians and third parties; 
  1.4             making related technical changes; amending Minnesota 
  1.5             Statutes 2000, section 518.156, subdivision 1; 
  1.6             Minnesota Statutes 2001 Supplement, section 260C.201, 
  1.7             subdivision 11; proposing coding for new law in 
  1.8             Minnesota Statutes, chapter 518; proposing coding for 
  1.9             new law as Minnesota Statutes, chapter 257C; repealing 
  1.10            Minnesota Statutes 2000, section 518.158. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  [257C.01] [DEFINITIONS.] 
  1.13     Subdivision 1.  [SCOPE.] The definitions in this section 
  1.14  apply to this chapter. 
  1.15     Subd. 2.  [CUSTODY TERMS.] (a) "Custody determination" 
  1.16  means a court decision and court orders and instructions 
  1.17  providing for the custody of a child, including parenting time, 
  1.18  but does not include a decision relating to child support or any 
  1.19  other monetary obligation of any person. 
  1.20     (b) "Custody proceeding" includes proceedings in which a 
  1.21  custody determination is one of several issues, such as an 
  1.22  action for dissolution, divorce, or separation, and proceedings 
  1.23  involving children who are in need of protection or services, 
  1.24  domestic abuse, paternity, guardianship, and de facto or 
  1.25  third-party custody proceedings under this chapter. 
  1.26     (c) "Joint legal custody" means that more than one person, 
  1.27  including parents and de facto and third-party custodians, have 
  1.28  equal rights and responsibilities and the right to participate 
  2.1   in major decisions determining the child's upbringing, including 
  2.2   education, health care, and religious training. 
  2.3      (d) "Joint physical custody" means that the routine daily 
  2.4   care and control and the residence of the child is structured 
  2.5   between the parties. 
  2.6      (e) "Legal custody" means the right to determine the 
  2.7   child's upbringing, including education, health care, and 
  2.8   religious training. 
  2.9      (f) "Parenting time" means the time a parent spends with a 
  2.10  child regardless of the custodial designation regarding the 
  2.11  child. 
  2.12     (g) "Physical custody and residence" means the routine 
  2.13  daily care and control and the residence of the child. 
  2.14     Subd. 3.  [DE FACTO CUSTODIAN.] (a) "De facto custodian" 
  2.15  means a person who has been shown by clear and convincing 
  2.16  evidence to have been the primary caretaker for a child who has, 
  2.17  within the 24 months immediately preceding the filing of the 
  2.18  petition, resided with the person without a parent present and 
  2.19  without a parent's demonstrated consistent participation for a 
  2.20  period of: 
  2.21     (1) six months or more if the child is under three years of 
  2.22  age; or 
  2.23     (2) one year or more if the child is three years of age or 
  2.24  older. 
  2.25     (b) "De facto custodian" does not include a person who has 
  2.26  a child placed in the person's care through a custody consent 
  2.27  decree under section 257.0215. 
  2.28     (c) For purposes of the definition in this subdivision, any 
  2.29  period of time after a legal proceeding has been commenced and 
  2.30  filed must not be included in determining whether the child has 
  2.31  resided with the person for the required minimum period. 
  2.32     (d) For purposes of the definition in this subdivision, 
  2.33  "lack of demonstrated consistent participation" by a parent 
  2.34  means refusal or neglect to comply with the duties imposed upon 
  2.35  the parent by the parent-child relationship, including, but not 
  2.36  limited to, providing the child necessary food, clothing, 
  3.1   shelter, health care, education, creating a nurturing and 
  3.2   consistent relationship, and other care and control necessary 
  3.3   for the child's physical, mental, or emotional health and 
  3.4   development.  The following factors must be considered by the 
  3.5   court in determining a parent's lack of participation: 
  3.6      (1) the intent of the parent or parents in placing the 
  3.7   child with the de facto custodian; 
  3.8      (2) the amount of involvement the parent had with the child 
  3.9   during the parent's absence; 
  3.10     (3) the facts and circumstances of the parent's absence; 
  3.11     (4) the parent's refusal to comply with conditions for 
  3.12  retaining custody set forth in previous court orders; 
  3.13     (5) whether the parent now seeking custody was previously 
  3.14  prevented from doing so as a result of domestic violence; and 
  3.15     (6) whether a sibling of the child is already in the 
  3.16  petitioner's care. 
  3.17     (e) A standby custody designation under chapter 257B is not 
  3.18  a designation of de facto custody unless that intent is 
  3.19  indicated within the standby custody designation. 
  3.20     (f) A foster parent or a person who has a child placed in 
  3.21  the person's care for the purposes of adoption under chapter 259 
  3.22  must not be considered de facto custodian. 
  3.23     Subd. 4.  [INTERESTED THIRD PARTY.] (a) "Interested third 
  3.24  party" means a person who is not a de facto custodian but who 
  3.25  can prove that it is in the best interests of the child to be in 
  3.26  that person's custody and that at least one of the following 
  3.27  conditions is met: 
  3.28     (1) the parent has abandoned, neglected, or otherwise 
  3.29  exhibited disregard for the child's well-being such that the 
  3.30  child will be harmed by living with the parent; 
  3.31     (2) placement of the child with that person takes priority 
  3.32  over preserving the day-to-day parent-child relationship because 
  3.33  of the presence of physical or emotional danger to the child, or 
  3.34  both; or 
  3.35     (3) other grave and weighty reasons exist such that it is 
  3.36  in the best interests of the child to be in the custody of that 
  4.1   person. 
  4.2      (b) The following factors must be considered by the court 
  4.3   in determining an interested third party's petition: 
  4.4      (1) the amount of involvement the interested third party 
  4.5   had with the child during the parent's absence or during the 
  4.6   child's lifetime; 
  4.7      (2) the amount of involvement the parent had with the child 
  4.8   during the parent's absence; 
  4.9      (3) the presence or involvement of other interested third 
  4.10  parties; 
  4.11     (4) the facts and circumstances of the parent's absence; 
  4.12     (5) the parent's refusal to comply with conditions for 
  4.13  retaining custody set forth in previous court orders; 
  4.14     (6)  whether the parent now seeking custody was previously 
  4.15  prevented from doing so as a result of domestic violence; 
  4.16     (7) whether a sibling of the child is already in the care 
  4.17  of the interested third party; and 
  4.18     (8) the existence of a standby custody designation under 
  4.19  chapter 257B. 
  4.20     (c) A foster parent or a person who has a child placed in 
  4.21  the person's care for the purposes of adoption under chapter 259 
  4.22  must not be considered an interested third party. 
  4.23     (d) For purposes of filing an order with the family court, 
  4.24  "interested third party" includes a relative or third party if 
  4.25  the juvenile court has determined custody under section 
  4.26  260C.201, subdivision 11, paragraph (e), clause (1). 
  4.27     Sec. 2.  [257C.02] [APPLICATION OF OTHER LAW; 
  4.28  CONSTRUCTION.] 
  4.29     (a) Chapters 257 and 518 and section 525.551 apply to 
  4.30  third-party and de facto custodians unless otherwise specified 
  4.31  in this chapter.  De facto or third-party child custody 
  4.32  proceedings concerning an Indian child are child custody 
  4.33  proceedings governed by the Indian Child Welfare Act, United 
  4.34  States Code, title 25, sections 1901 to 1963; the Minnesota 
  4.35  Indian Family Preservation Act; Minnesota Statutes, sections 
  4.36  260.751 to 260.835; and by this chapter when not inconsistent 
  5.1   with the Indian Child Welfare Act or the Minnesota Indian Family 
  5.2   Preservation Act. 
  5.3      (b) Nothing in this chapter may be construed to relieve any 
  5.4   parent of a duty to support the parent's children.  A 
  5.5   preexisting child support order is not suspended or terminated 
  5.6   when a third party takes custody of a child unless otherwise 
  5.7   provided by court order.  A de facto or third-party custodian 
  5.8   has a cause of action against an absent parent under section 
  5.9   256.87, subdivision 5. 
  5.10     Sec. 3.  [257C.03] [PROCEDURE.] 
  5.11     Subdivision 1.  [COMMENCEMENT OF PROCEEDINGS.] (a) In a 
  5.12  court of this state with jurisdiction to decide child custody 
  5.13  matters, a de facto or third-party child custody proceeding may 
  5.14  be brought by a person other than a parent by filing a petition 
  5.15  seeking custody in the county where: 
  5.16     (1) the child is permanently a resident, the child is 
  5.17  found, or an earlier order for custody of the child has been 
  5.18  entered; and 
  5.19     (2) the court has jurisdiction over the matter under 
  5.20  chapter 518D. 
  5.21     (b) The proceeding is commenced by personal service of the 
  5.22  summons and petition. 
  5.23     (c) A person other than a parent who seeks visitation under 
  5.24  this section must qualify under one of the provisions of section 
  5.25  257.022, and must comply with the provisions of this subdivision 
  5.26  to commence the proceeding. 
  5.27     Subd. 2.  [WRITTEN NOTICE.] (a) Notice of a hearing on a 
  5.28  petition to establish de facto or third-party custody of a child 
  5.29  must be given to: 
  5.30     (1) the parent of the child, if: 
  5.31     (i) the person's name appears on the child's birth 
  5.32  certificate as a parent; 
  5.33     (ii) the person has substantially supported the child; 
  5.34     (iii) the person either was married to the person 
  5.35  designated on the birth certificate as the natural mother within 
  5.36  the 352 days before the child's birth or married that person 
  6.1   within the ten days after the child's birth; 
  6.2      (iv) the person is openly living with the child or the 
  6.3   person designated on the birth certificate as the natural mother 
  6.4   of the child, or both; 
  6.5      (v) the person has been adjudicated the child's parent; 
  6.6      (vi) the person has filed a paternity action within 30 days 
  6.7   after the child's birth and the action is still pending; 
  6.8      (vii) the person and the mother of the child signed a 
  6.9   declaration of parentage under section 257.34 before August 1, 
  6.10  1995, which has not been revoked, or a recognition of parentage 
  6.11  under section 257.75 which has not been revoked or vacated; or 
  6.12     (viii) the person is not entitled to notice under items (i) 
  6.13  to (vii) but has timely registered with the father's adoption 
  6.14  registry under section 259.52; 
  6.15     (2) the guardian, if any, of the child; and 
  6.16     (3) the child's tribe pursuant to section 260.761, 
  6.17  subdivision 3, if the child is an Indian child. 
  6.18     (b) Notice under this section need not be given to a person 
  6.19  listed in this subdivision whose parental rights have been 
  6.20  terminated.  
  6.21     Subd. 3.  [APPROVAL WITHOUT HEARING.] Approval of an order 
  6.22  under this section without a hearing is permitted if both 
  6.23  parents consent by stipulation or agreement that it is in the 
  6.24  best interests of the child to be in the custody of the de facto 
  6.25  custodian or interested third party. 
  6.26     Subd. 4.  [EMERGENCY OR TEMPORARY HEARINGS.] (a) The court 
  6.27  must be guided by the factors set forth in sections 518.131, 
  6.28  concerning temporary orders and restraining orders; 518.551, 
  6.29  concerning child support; 518.17 to 518.175, concerning custody 
  6.30  and parenting time; and 518.14, concerning costs and attorney 
  6.31  fees, in making temporary orders and restraining orders. 
  6.32     (b) The court may grant ex parte relief only if requested 
  6.33  by a motion with a properly executed supporting affidavit.  The 
  6.34  affidavit must outline specific supporting facts as to why the 
  6.35  case needs to be expedited. 
  6.36     (c) The court shall grant ex parte or temporary relief if 
  7.1   the petitioner and situation fit the factors outlined for de 
  7.2   facto custodian or third-party custodian under section 257C.01, 
  7.3   subdivisions 2 and 3. 
  7.4      (d) If the court orders temporary custody under this 
  7.5   subdivision, the de facto custodian or interested third party 
  7.6   shall seek temporary or permanent custody of the child pursuant 
  7.7   to a petition under this chapter and the other standards of this 
  7.8   chapter apply. 
  7.9      Subd. 5.  [DISMISSAL OF PETITION.] (a) If the court finds 
  7.10  that the petitioner is not a de facto custodian as set forth in 
  7.11  section 257C.01, subdivision 3, the court shall dismiss the 
  7.12  petition for custody. 
  7.13     (b) If the court finds that an interested third party 
  7.14  cannot establish factors set forth in section 257C.01, 
  7.15  subdivision 4, paragraph (a), clause (1), (2), or (3), the court 
  7.16  shall dismiss the petition for custody. 
  7.17     (c) If the court finds that a party cannot establish 
  7.18  factors for visitation under section 257.022, the court shall 
  7.19  dismiss the petition for visitation. 
  7.20     Subd. 6.  [BURDEN OF PROOF.] (a) The de facto custodian 
  7.21  must prove by a preponderance of the evidence that it is in the 
  7.22  best interests of the child to live with the de facto custodian. 
  7.23     (b) In all other cases, a petitioner who is an interested 
  7.24  third party must prove by a preponderance of the evidence that 
  7.25  the respondent has abandoned, neglected, or otherwise exhibited 
  7.26  disregard for the child's well-being to the extent that the 
  7.27  child will be harmed by living with the parent, or that the 
  7.28  placement of the child with the interested third party takes 
  7.29  priority over preserving the day-to-day parent-child 
  7.30  relationship because of the presence of physical or emotional 
  7.31  danger to the child, or both, or that other grave and weighty 
  7.32  reasons exist and that it is in the best interests of the child 
  7.33  to be in the custody of the petitioner. 
  7.34     (c) In determining the best interests of the child, the 
  7.35  court shall apply the standards in section 257C.04. 
  7.36     Subd. 7.  [REQUISITES OF PETITION OR MOTION.] A petition 
  8.1   for custody filed under this section must state and allege: 
  8.2      (1) the name and address of the petitioner and any prior or 
  8.3   other name used by the petitioner; 
  8.4      (2) the name and, if known, the address and social security 
  8.5   number of the respondent mother and father or guardian and any 
  8.6   prior or other name used by the respondent and known to the 
  8.7   petitioner; 
  8.8      (3) the name and date of birth of each child for whom 
  8.9   custody is sought; 
  8.10     (4) the relationship of the petitioner to the children for 
  8.11  whom custody is sought; 
  8.12     (5) the petitioner or petitioners' basis for jurisdiction 
  8.13  under section 257C.01, subdivision 3 or 4; 
  8.14     (6) the current legal and physical custodial status of the 
  8.15  children for whom custody is sought and a list of all prior 
  8.16  orders of custody, if known to the petitioner; 
  8.17     (7) whether any party is a member of the armed services; 
  8.18     (8) the length of time the children have resided with the 
  8.19  petitioner and have resided in the state of Minnesota; 
  8.20     (9) whether a separate proceeding for dissolution, legal 
  8.21  separation, or custody is pending in a court in this state or 
  8.22  elsewhere; 
  8.23     (10) whether a permanent or temporary standby custody 
  8.24  designation has been executed or filed in a court in this state 
  8.25  or elsewhere; 
  8.26     (11) whether a permanent or temporary standby custody 
  8.27  designee differs in identity from the de facto custodian and 
  8.28  reasons why the proposed de facto custodian should have 
  8.29  custodial priority over a designated standby custodian; 
  8.30     (12) whether parenting time should be granted to the 
  8.31  respondents; 
  8.32     (13) any temporary or permanent child support, attorney 
  8.33  fees, costs, and disbursements; 
  8.34     (14) whether an order of protection under chapter 518B or a 
  8.35  similar law of another state that governs the parties or a party 
  8.36  and a minor child of the parties is in effect and, if so, the 
  9.1   district court or similar jurisdiction in which it was entered; 
  9.2   and 
  9.3      (15) that it is in the best interests of the children under 
  9.4   section 257C.04 that the petitioner have custody of the children.
  9.5      The petition must be verified by the petitioner or 
  9.6   petitioners and its allegations established by competent 
  9.7   evidence. 
  9.8      Sec. 4.  [257C.04] [BEST INTERESTS OF A CHILD.] 
  9.9      Subdivision 1.  [CUSTODY FACTORS.] (a) If two or more 
  9.10  parties seek custody of a child, the court shall consider and 
  9.11  evaluate all relevant factors in determining the best interests 
  9.12  of the child, including the following factors: 
  9.13     (1) the wishes of the parties as to custody; 
  9.14     (2) the reasonable preference of the child, if the court 
  9.15  considers the child to be of sufficient age to express 
  9.16  preference; 
  9.17     (3) the identity of the child's primary caretaker; 
  9.18     (4) the intimacy of the relationship between each party and 
  9.19  the child; 
  9.20     (5) the interaction and interrelationship of the child with 
  9.21  a party or parties, siblings, and any other person who may 
  9.22  significantly affect the child's best interests; 
  9.23     (6) the child's adjustment to home, school, and community; 
  9.24     (7) the length of time the child has lived in a stable, 
  9.25  satisfactory environment and the desirability of maintaining 
  9.26  continuity; 
  9.27     (8) the permanence, as a family unit, of the existing or 
  9.28  proposed custodial home; 
  9.29     (9) the mental and physical health of all individuals 
  9.30  involved; except that a disability, as defined in section 
  9.31  363.01, subdivision 13, of a proposed custodian or the child 
  9.32  must not be determinative of the custody of the child, unless 
  9.33  the proposed custodial arrangement is not in the best interests 
  9.34  of the child; 
  9.35     (10) the capacity and disposition of the parties to give 
  9.36  the child love, affection, and guidance, and to continue 
 10.1   educating and raising the child in the child's culture and 
 10.2   religion or creed, if any; 
 10.3      (11) the child's cultural background; and 
 10.4      (12) the effect on the child of the actions of an abuser, 
 10.5   if related to domestic abuse, as defined in section 518B.01, 
 10.6   subdivision 2, that has occurred between the parents or the 
 10.7   parties. 
 10.8      (b) The court may not use one factor to the exclusion of 
 10.9   all others.  The court must make detailed findings on each of 
 10.10  the factors and explain how the factors led to its conclusions 
 10.11  and to the determination of the best interests of the child. 
 10.12     (c) The court must not give preference to a party over the 
 10.13  de facto custodian solely because the party is a parent of the 
 10.14  child. 
 10.15     (d) The fact that the parents of the child are not or were 
 10.16  never married to each other must not be determinative of the 
 10.17  custody of the child. 
 10.18     (e) The court shall consider evidence of a violation of 
 10.19  section 609.507 in determining the best interests of the child. 
 10.20     (f) The court shall not consider conduct of a proposed 
 10.21  custodian that does not affect the custodian's relationship to 
 10.22  the child. 
 10.23     (g) Section 518.619 applies to actions under this section. 
 10.24     Subd. 2.  [FACTORS WHEN JOINT CUSTODY IS SOUGHT.] In 
 10.25  addition to the factors listed in subdivision 1, if either joint 
 10.26  legal or joint physical custody is contemplated or sought, the 
 10.27  court shall consider the following relevant factors: 
 10.28     (1) the ability of the parties to cooperate in the rearing 
 10.29  of the child; 
 10.30     (2) methods for resolving disputes regarding any major 
 10.31  decision concerning the life of the child and the parties' 
 10.32  willingness to use those methods; 
 10.33     (3) whether it would be detrimental to the child if one 
 10.34  party were to have sole authority over the child's upbringing; 
 10.35  and 
 10.36     (4) whether domestic abuse, as defined in section 518B.01, 
 11.1   subdivision 2, has occurred between the parties. 
 11.2      If the court awards joint legal or physical custody over 
 11.3   the objection of a party, the court shall make detailed findings 
 11.4   on each of the factors in this subdivision and explain how the 
 11.5   factors led to its determination that joint custody would be in 
 11.6   the best interests of the child. 
 11.7      Sec. 5.  [257C.05] [DE FACTO AND THIRD PARTY CUSTODY 
 11.8   ORDERS.] 
 11.9      Subdivision 1.  [CUSTODY ORDER.] In a child custody 
 11.10  proceeding, the court shall make any additional order it 
 11.11  considers just and proper concerning: 
 11.12     (1) the legal custody of the minor children of the parties, 
 11.13  whether sole or joint; 
 11.14     (2) their physical custody and residence; 
 11.15     (3) the quality and duration of parenting time and whether 
 11.16  it is supervised or unsupervised; 
 11.17     (4) their support; and 
 11.18     (5) other matters reasonably affecting the best interests 
 11.19  of the children. 
 11.20     In determining custody, the court shall consider the best 
 11.21  interests of each child and shall not prefer a parent over the 
 11.22  de facto custodian or third party custodian solely on the basis 
 11.23  of the gender of the parent, de facto custodian, or third party. 
 11.24     Subd. 2.  [ATTACHMENTS TO CUSTODY ORDER.] All de facto and 
 11.25  interested party custody orders must include Form 3:  Appendix A 
 11.26  under the Appendix of Forms in the Family Court Procedure in 
 11.27  General Rules of Practice.  The court may also notify the 
 11.28  parties of the availability and uses of mediation. 
 11.29     Sec. 6.  [257C.06] [MODIFICATION.] 
 11.30     The procedures in section 518.18 for modification of a 
 11.31  custody order also govern modification of an order under this 
 11.32  chapter. 
 11.33     Sec. 7.  Minnesota Statutes 2001 Supplement, section 
 11.34  260C.201, subdivision 11, is amended to read: 
 11.35     Subd. 11.  [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT 
 11.36  PLACEMENT DETERMINATION.] (a) Except for cases where the child 
 12.1   is in placement due solely to the child's developmental 
 12.2   disability or emotional disturbance, and where custody has not 
 12.3   been transferred to the responsible social services agency, and 
 12.4   the court finds compelling reasons under section 260C.007, 
 12.5   subdivision 8, the court shall conduct a hearing to determine 
 12.6   the permanent status of a child not later than 12 months after 
 12.7   the child is placed out of the home of the parent. 
 12.8      For purposes of this subdivision, the date of the child's 
 12.9   placement out of the home of the parent is the earlier of the 
 12.10  first court-ordered placement or 60 days after the date on which 
 12.11  the child has been voluntarily placed out of the home. 
 12.12     For purposes of this subdivision, 12 months is calculated 
 12.13  as follows: 
 12.14     (1) during the pendency of a petition alleging that a child 
 12.15  is in need of protection or services, all time periods when a 
 12.16  child is placed out of the home of the parent are cumulated; 
 12.17     (2) if a child has been placed out of the home of the 
 12.18  parent within the previous five years under one or more previous 
 12.19  petitions, the lengths of all prior time periods when the child 
 12.20  was placed out of the home within the previous five years are 
 12.21  cumulated.  If a child under this clause has been out of the 
 12.22  home for 12 months or more, the court, if it is in the best 
 12.23  interests of the child and for compelling reasons, may extend 
 12.24  the total time the child may continue out of the home under the 
 12.25  current petition up to an additional six months before making a 
 12.26  permanency determination.  
 12.27     (b) Unless the responsible social services agency 
 12.28  recommends return of the child to the custodial parent or 
 12.29  parents, not later than 30 days prior to this hearing, the 
 12.30  responsible social services agency shall file pleadings in 
 12.31  juvenile court to establish the basis for the juvenile court to 
 12.32  order permanent placement of the child according to paragraph 
 12.33  (d).  Notice of the hearing and copies of the pleadings must be 
 12.34  provided pursuant to section 260C.152.  If a termination of 
 12.35  parental rights petition is filed before the date required for 
 12.36  the permanency planning determination and there is a trial under 
 13.1   section 260C.163 scheduled on that petition within 90 days of 
 13.2   the filing of the petition, no hearing need be conducted under 
 13.3   this subdivision.  
 13.4      (c) At the conclusion of the hearing, the court shall order 
 13.5   the child returned to the care of the parent or guardian from 
 13.6   whom the child was removed or order a permanent placement in the 
 13.7   child's best interests.  The "best interests of the child" means 
 13.8   all relevant factors to be considered and evaluated.  Transfer 
 13.9   of permanent legal and physical custody, termination of parental 
 13.10  rights, or guardianship and legal custody to the commissioner 
 13.11  through a consent to adopt are preferred permanency options for 
 13.12  a child who cannot return home. 
 13.13     (d) If the child is not returned to the home, the court 
 13.14  must order one of the following dispositions: 
 13.15     (1) permanent legal and physical custody to a relative in 
 13.16  the best interests of the child according to the following 
 13.17  conditions: 
 13.18     (i) an order for transfer of permanent legal and physical 
 13.19  custody to a relative shall only be made after the court has 
 13.20  reviewed the suitability of the prospective legal and physical 
 13.21  custodian; 
 13.22     (ii) in transferring permanent legal and physical custody 
 13.23  to a relative, the juvenile court shall follow the standards and 
 13.24  procedures applicable under this chapter, chapters 260 and 518, 
 13.25  and juvenile court rules; 
 13.26     (iii) an order establishing permanent legal and physical 
 13.27  custody under this subdivision must be filed with the family 
 13.28  court; 
 13.29     (iv) (iii) a transfer of legal and physical custody 
 13.30  includes responsibility for the protection, education, care, and 
 13.31  control of the child and decision making on behalf of the child; 
 13.32     (v) (iv) the social services agency may petition on behalf 
 13.33  of the proposed custodian bring a petition or motion naming a 
 13.34  fit and willing relative as a proposed permanent legal and 
 13.35  physical custodian.  The commissioner of human services shall 
 13.36  annually prepare for counties information that must be given to 
 14.1   proposed custodians about their legal rights and obligations as 
 14.2   custodians together with information on financial and medical 
 14.3   benefits for which the child is eligible; and 
 14.4      (vi) (v) the juvenile court may maintain jurisdiction over 
 14.5   the responsible social services agency, the parents or guardian 
 14.6   of the child, the child, and the permanent legal and physical 
 14.7   custodian for purposes of ensuring appropriate services are 
 14.8   delivered to the child and permanent legal custodian or for the 
 14.9   purpose of ensuring conditions ordered by the court related to 
 14.10  the care and custody of the child are met; 
 14.11     (2) termination of parental rights according to the 
 14.12  following conditions: 
 14.13     (i) unless the social services agency has already filed a 
 14.14  petition for termination of parental rights under section 
 14.15  260C.307, the court may order such a petition filed and all the 
 14.16  requirements of sections 260C.301 to 260C.328 remain applicable; 
 14.17  and 
 14.18     (ii) an adoption completed subsequent to a determination 
 14.19  under this subdivision may include an agreement for 
 14.20  communication or contact under section 259.58; 
 14.21     (3) long-term foster care according to the following 
 14.22  conditions: 
 14.23     (i) the court may order a child into long-term foster care 
 14.24  only if it finds compelling reasons that neither an award of 
 14.25  permanent legal and physical custody to a relative, nor 
 14.26  termination of parental rights is in the child's best interests; 
 14.27  and 
 14.28     (ii) further, the court may only order long-term foster 
 14.29  care for the child under this section if it finds the following: 
 14.30     (A) the child has reached age 12 and reasonable efforts by 
 14.31  the responsible social services agency have failed to locate an 
 14.32  adoptive family for the child; or 
 14.33     (B) the child is a sibling of a child described in subitem 
 14.34  (A) and the siblings have a significant positive relationship 
 14.35  and are ordered into the same long-term foster care home; 
 14.36     (4) foster care for a specified period of time according to 
 15.1   the following conditions: 
 15.2      (i) foster care for a specified period of time may be 
 15.3   ordered only if: 
 15.4      (A) the sole basis for an adjudication that the child is in 
 15.5   need of protection or services is the child's behavior; 
 15.6      (B) the court finds that foster care for a specified period 
 15.7   of time is in the best interests of the child; and 
 15.8      (C) the court finds compelling reasons that neither an 
 15.9   award of permanent legal and physical custody to a relative, nor 
 15.10  termination of parental rights is in the child's best interests; 
 15.11     (ii) the order does not specify that the child continue in 
 15.12  foster care for any period exceeding one year; or 
 15.13     (5) guardianship and legal custody to the commissioner of 
 15.14  human services under the following procedures and conditions: 
 15.15     (i) there is an identified prospective adoptive home that 
 15.16  has agreed to adopt the child and the court accepts the parent's 
 15.17  voluntary consent to adopt under section 259.24; 
 15.18     (ii) if the court accepts a consent to adopt in lieu of 
 15.19  ordering one of the other enumerated permanency dispositions, 
 15.20  the court must review the matter at least every 90 days.  The 
 15.21  review will address the reasonable efforts of the agency to 
 15.22  achieve a finalized adoption; 
 15.23     (iii) a consent to adopt under this clause vests all legal 
 15.24  authority regarding the child, including guardianship and legal 
 15.25  custody of the child, with the commissioner of human services as 
 15.26  if the child were a state ward after termination of parental 
 15.27  rights; 
 15.28     (iv) the court must forward a copy of the consent to adopt, 
 15.29  together with a certified copy of the order transferring 
 15.30  guardianship and legal custody to the commissioner, to the 
 15.31  commissioner; and 
 15.32     (v) if an adoption is not finalized by the identified 
 15.33  prospective adoptive parent within 12 months of the execution of 
 15.34  the consent to adopt under this clause, the commissioner of 
 15.35  human services or the commissioner's delegate shall pursue 
 15.36  adoptive placement in another home unless the commissioner 
 16.1   certifies that the failure to finalize is not due to either an 
 16.2   action or a failure to act by the prospective adoptive parent. 
 16.3      (e) In ordering a permanent placement of a child, the court 
 16.4   must be governed by the best interests of the child, including a 
 16.5   review of the relationship between the child and relatives and 
 16.6   the child and other important persons with whom the child has 
 16.7   resided or had significant contact. 
 16.8      (f) Once a permanent placement determination has been made 
 16.9   and permanent placement has been established, further court 
 16.10  reviews are necessary if: 
 16.11     (1) the placement is long-term foster care or foster care 
 16.12  for a specified period of time; 
 16.13     (2) the court orders further hearings because it has 
 16.14  retained jurisdiction of a transfer of permanent legal and 
 16.15  physical custody matter; 
 16.16     (3) an adoption has not yet been finalized; or 
 16.17     (4) there is a disruption of the permanent or long-term 
 16.18  placement.  
 16.19     (g) Court reviews of an order for long-term foster care, 
 16.20  whether under this section or section 260C.317, subdivision 3, 
 16.21  paragraph (d), or foster care for a specified period of time 
 16.22  must be conducted at least yearly and must review the child's 
 16.23  out-of-home placement plan and the reasonable efforts of the 
 16.24  agency to: 
 16.25     (1) identify a specific long-term foster home for the child 
 16.26  or a specific foster home for the time the child is specified to 
 16.27  be out of the care of the parent, if one has not already been 
 16.28  identified; 
 16.29     (2) support continued placement of the child in the 
 16.30  identified home, if one has been identified; 
 16.31     (3) ensure appropriate services are provided to the child 
 16.32  during the period of long-term foster care or foster care for a 
 16.33  specified period of time; 
 16.34     (4) plan for the child's independence upon the child's 
 16.35  leaving long-term foster care living as required under section 
 16.36  260C.212, subdivision 1; and 
 17.1      (5) where placement is for a specified period of time, a 
 17.2   plan for the safe return of the child to the care of the parent. 
 17.3      (h) An order under this subdivision must include the 
 17.4   following detailed findings: 
 17.5      (1) how the child's best interests are served by the order; 
 17.6      (2) the nature and extent of the responsible social service 
 17.7   agency's reasonable efforts, or, in the case of an Indian child, 
 17.8   active efforts to reunify the child with the parent or parents; 
 17.9      (3) the parent's or parents' efforts and ability to use 
 17.10  services to correct the conditions which led to the out-of-home 
 17.11  placement; and 
 17.12     (4) whether the conditions which led to the out-of-home 
 17.13  placement have been corrected so that the child can return home. 
 17.14     (i) An order for permanent legal and physical custody of a 
 17.15  child may be modified under sections 518.18 and 518.185.  The 
 17.16  social services agency is a party to the proceeding and must 
 17.17  receive notice.  A parent may only seek modification of an order 
 17.18  for long-term foster care upon motion and a showing by the 
 17.19  parent of a substantial change in the parent's circumstances 
 17.20  such that the parent could provide appropriate care for the 
 17.21  child and that removal of the child from the child's permanent 
 17.22  placement and the return to the parent's care would be in the 
 17.23  best interest of the child. 
 17.24     (j) The court shall issue an order required under this 
 17.25  section within 15 days of the close of the proceedings.  The 
 17.26  court may extend issuing the order an additional 15 days when 
 17.27  necessary in the interests of justice and the best interests of 
 17.28  the child. 
 17.29     Sec. 8.  [518.1551] [DE FACTO CUSTODIAN.] 
 17.30     A de facto custodian under chapter 257C must be allowed to 
 17.31  intervene in any custody proceeding. 
 17.32     Sec. 9.  Minnesota Statutes 2000, section 518.156, 
 17.33  subdivision 1, is amended to read: 
 17.34     Subdivision 1.  [PROCEDURE.] In a court of this state which 
 17.35  has jurisdiction to decide child custody matters, a child 
 17.36  custody proceeding is commenced: 
 18.1      (a) by a parent: 
 18.2      (1) by filing a petition for dissolution or legal 
 18.3   separation; or 
 18.4      (2) where a decree of dissolution or legal separation has 
 18.5   been entered or where none is sought, or when paternity has been 
 18.6   recognized under section 257.75, by filing a petition or motion 
 18.7   seeking custody or parenting time with the child in the county 
 18.8   where the child is permanently resident or where the child is 
 18.9   found or where an earlier order for custody of the child has 
 18.10  been entered; or. 
 18.11     (b) by a person other than a parent, where a decree of 
 18.12  dissolution or legal separation has been entered or where none 
 18.13  is sought by filing a petition or motion seeking custody or 
 18.14  visitation of the child in the county where the child is 
 18.15  permanently resident or where the child is found or where an 
 18.16  earlier order for custody of the child has been entered.  A 
 18.17  person seeking visitation pursuant to this paragraph must 
 18.18  qualify under one of the provisions of section 257.022.  
 18.19     Sec. 10.  [REPEALER.] 
 18.20     Minnesota Statutes 2000, section 518.158, is repealed. 
 18.21     Sec. 11.  [INSTRUCTION TO THE REVISOR.] 
 18.22     The revisor shall renumber Minnesota Statutes, section 
 18.23  257.022 to be 257C.07 and correct all references to that section 
 18.24  in Minnesota Statutes and Minnesota Rules.