HF 3650

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to marriage dissolution; clarifying the 
  1.3             rights in custody proceedings of de facto custodians; 
  1.4             amending Minnesota Statutes 1998, sections 518.156, 
  1.5             subdivision 2, and by adding a subdivision; and 
  1.6             518.17, subdivisions 1, 2, and 3. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 1998, section 518.156, 
  1.9   subdivision 2, is amended to read: 
  1.10     Subd. 2.  [NOTICE.] Written notice of a child custody or 
  1.11  visitation proceeding shall be given to the child's parent, 
  1.12  guardian, and custodian, who may appear and be heard and may 
  1.13  file a responsive pleading.  If the court determines by clear 
  1.14  and convincing evidence that a person is a de facto custodian, 
  1.15  the court shall join that person in the action as a party needed 
  1.16  for just adjudication under rule 19 of the Minnesota Rules of 
  1.17  Civil Procedure.  The court may, upon a showing of good cause, 
  1.18  permit the intervention of other interested parties. 
  1.19     Sec. 2.  Minnesota Statutes 1998, section 518.156, is 
  1.20  amended by adding a subdivision to read: 
  1.21     Subd. 3.  [DE FACTO CUSTODIAN.] (a) As used in this 
  1.22  chapter, unless the context requires otherwise, "de facto 
  1.23  custodian" means a person who has been shown by clear and 
  1.24  convincing evidence to have been the primary caretaker for and 
  1.25  financial supporter of a child who has resided with the person 
  1.26  for six months or more if the child is under three years of age 
  2.1   or for one year or more if the child is three years of age or 
  2.2   older.  Any time after a legal proceeding has been commenced by 
  2.3   a parent seeking to regain custody of the child must not be 
  2.4   included in determining whether the child has resided with the 
  2.5   person for the minimum time. 
  2.6      (b) A person is not a de facto custodian until a court 
  2.7   determines by clear and convincing evidence that the person 
  2.8   meets the definition of de facto custodian established in 
  2.9   paragraph (a).  On determining that a person meets the 
  2.10  definition of de facto custodian, the court shall give the 
  2.11  person the same standing in custody matters that is given to 
  2.12  each parent under sections 257.025 and 518.17. 
  2.13     Sec. 3.  Minnesota Statutes 1998, section 518.17, 
  2.14  subdivision 1, is amended to read: 
  2.15     Subdivision 1.  [THE BEST INTERESTS OF THE CHILD.] (a) "The 
  2.16  best interests of the child" means all relevant factors to be 
  2.17  considered and evaluated by the court including: 
  2.18     (1) the wishes of the child's parent or parents and any de 
  2.19  facto custodian as to custody; 
  2.20     (2) the reasonable preference of the child, if the court 
  2.21  deems the child to be of sufficient age to express preference; 
  2.22     (3) the child's primary caretaker; 
  2.23     (4) the intimacy of the relationship between each 
  2.24  parent and any de facto custodian and the child; 
  2.25     (5) the interaction and interrelationship of the child with 
  2.26  a parent or parents and any de facto custodian, siblings, and 
  2.27  any other person who may significantly affect the child's best 
  2.28  interests; 
  2.29     (6) the child's adjustment to home, school, and community; 
  2.30     (7) the length of time the child has lived in a stable, 
  2.31  satisfactory environment and the desirability of maintaining 
  2.32  continuity; 
  2.33     (8) the permanence, as a family unit, of the existing or 
  2.34  proposed custodial home; 
  2.35     (9) the mental and physical health of all individuals 
  2.36  involved; except that a disability, as defined in section 
  3.1   363.01, of a proposed custodian or the child shall not be 
  3.2   determinative of the custody of the child, unless the proposed 
  3.3   custodial arrangement is not in the best interest of the child; 
  3.4      (10) the capacity and disposition of the parties to give 
  3.5   the child love, affection, and guidance, and to continue 
  3.6   educating and raising the child in the child's culture and 
  3.7   religion or creed, if any; 
  3.8      (11) the child's cultural background; 
  3.9      (12) the effect on the child of the actions of an abuser, 
  3.10  if related to domestic abuse, as defined in section 518B.01, 
  3.11  that has occurred between the parents or between a parent and 
  3.12  another individual or any de facto custodian, whether or not the 
  3.13  individual alleged to have committed domestic abuse is or ever 
  3.14  was a family or household member of the parent; and 
  3.15     (13) except in cases in which a finding of domestic abuse 
  3.16  as defined in section 518B.01 has been made, the disposition of 
  3.17  each parent or any de facto custodian to encourage and permit 
  3.18  frequent and continuing contact by the other parent with the 
  3.19  child; 
  3.20     (14) the extent to which the child has been cared for, 
  3.21  nurtured, and supported by any de facto custodian; 
  3.22     (15) the intent of the parent or parents in placing the 
  3.23  child with a de facto custodian; and 
  3.24     (16) the circumstances under which the child was placed or 
  3.25  allowed to remain in the custody of a de facto custodian, 
  3.26  including whether the parent now seeking custody was previously 
  3.27  prevented from doing so as a result of domestic violence and 
  3.28  whether the child was placed with a de facto custodian to allow 
  3.29  the parent now seeking custody to seek employment, work, or 
  3.30  attend school. 
  3.31     The court may not use one factor to the exclusion of all 
  3.32  others.  The primary caretaker factor may not be used as a 
  3.33  presumption in determining the best interests of the child.  The 
  3.34  court must make detailed findings on each of the factors and 
  3.35  explain how the factors led to its conclusions and to the 
  3.36  determination of the best interests of the child.  
  4.1      (b) The court shall not consider conduct of a proposed 
  4.2   custodian that does not affect the custodian's relationship to 
  4.3   the child. 
  4.4      Sec. 4.  Minnesota Statutes 1998, section 518.17, 
  4.5   subdivision 2, is amended to read: 
  4.6      Subd. 2.  [FACTORS WHEN JOINT CUSTODY IS SOUGHT.] In 
  4.7   addition to the factors listed in subdivision 1, where either 
  4.8   joint legal or joint physical custody is contemplated or sought, 
  4.9   the court shall consider the following relevant factors:  
  4.10     (a) The ability of parents and any de facto custodian to 
  4.11  cooperate in the rearing of their the children; 
  4.12     (b) Methods for resolving disputes regarding any major 
  4.13  decision concerning the life of the child, and the parents' and 
  4.14  any de facto custodian's willingness to use those methods; 
  4.15     (c) Whether it would be detrimental to the child if one 
  4.16  parent or the de facto custodian were to have sole authority 
  4.17  over the child's upbringing; and 
  4.18     (d) Whether domestic abuse, as defined in section 518B.01, 
  4.19  has occurred between the parents or between one or both of the 
  4.20  parents and any de facto custodian.  
  4.21     The court shall use a rebuttable presumption that upon 
  4.22  request of either or both parties any party, joint legal custody 
  4.23  is in the best interests of the child.  However, the court shall 
  4.24  use a rebuttable presumption that joint legal or physical 
  4.25  custody is not in the best interests of the child if domestic 
  4.26  abuse, as defined in section 518B.01, has occurred between the 
  4.27  parents or the de facto custodian. 
  4.28     If the court awards joint legal or physical custody over 
  4.29  the objection of a party, the court shall make detailed findings 
  4.30  on each of the factors in this subdivision and explain how the 
  4.31  factors led to its determination that joint custody would be in 
  4.32  the best interests of the child. 
  4.33     Sec. 5.  Minnesota Statutes 1998, section 518.17, 
  4.34  subdivision 3, is amended to read: 
  4.35     Subd. 3.  [CUSTODY ORDER.] (a) Upon adjudging the nullity 
  4.36  of a marriage, or in a dissolution or separation proceeding, or 
  5.1   in a child custody proceeding, the court shall make such further 
  5.2   order as it deems just and proper concerning:  
  5.3      (1) the legal custody of the minor children of the parties 
  5.4   which shall be sole or joint; 
  5.5      (2) their physical custody and residence; and 
  5.6      (3) their support.  In determining custody, the court shall 
  5.7   consider the best interests of each child and shall not prefer 
  5.8   one parent over the other solely on the basis of the sex of the 
  5.9   parent or prefer a parent over the de facto custodian.  The 
  5.10  court shall grant legal custody to a person if the court 
  5.11  determines that the person meets the definition of de facto 
  5.12  custodian and that the best interests of the child will be 
  5.13  served by awarding custody to the de facto custodian.  
  5.14     (b) The court shall grant the following rights to each of 
  5.15  the parties, unless specific findings are made under section 
  5.16  518.68, subdivision 1.  Each party has the right of access to, 
  5.17  and to receive copies of, school, medical, dental, religious 
  5.18  training, and other important records and information about the 
  5.19  minor children.  Each party has the right of access to 
  5.20  information regarding health or dental insurance available to 
  5.21  the minor children.  Each party shall keep the other party 
  5.22  informed as to the name and address of the school of attendance 
  5.23  of the minor children.  Each party has the right to be informed 
  5.24  by school officials about the children's welfare, educational 
  5.25  progress and status, and to attend school and parent-teacher 
  5.26  conferences.  The school is not required to hold a separate 
  5.27  conference for each party.  In case of an accident or serious 
  5.28  illness of a minor child, each party shall notify the other 
  5.29  party of the accident or illness, and the name of the health 
  5.30  care provider and the place of treatment.  Each party has the 
  5.31  right to reasonable access and telephone contact with the minor 
  5.32  children.  The court may waive any of the rights under this 
  5.33  section if it finds it is necessary to protect the welfare of a 
  5.34  party or child.