1.1 	A bill for an act
1.2 	relating to family law; modifying the standard for removal of a child's residence 
1.3 	from the state; creating a presumption of joint physical custody; requiring the 
1.4 	use of parenting plans in certain cases; specifying terminology in absence of 
1.5 	designations in parenting plans; modifying timelines for hearing requirements 
1.6 	in certain order for protection proceedings;amending Minnesota Statutes 
1.7 	2004, sections 518.003, subdivision 3; 518.17, subdivisions 1, 2; 518.1705, 
1.8 	subdivisions 3, 4; 518.175, subdivision 3; 518.18; 518B.01, subdivision 5; 
1.9 	repealing Minnesota Statutes 2004, section 518.1705, subdivision 7.
1.10 	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.11 	Section 1. Minnesota Statutes 2004, section 518.003, subdivision 3, is amended to read:
1.12 		Subd. 3.Custody. Unless otherwise agreed by the parties:
1.13 	(a) "Legal custody" means the right to determine the child's upbringing, including 
1.14 	education, health care, and religious training.
1.15 	(b) "Joint legal custody" means that both parents have equal rights and 
1.16 	responsibilities, including the right to participate in major decisions determining the 
1.17 	child's upbringing, including education, health care, and religious training.
1.18 	(c) "Physical custody and residence" means the routine daily care and control and 
1.19 	the residence of the child.
1.20 	(d) "Joint physical custody" means that the routine daily care and control and the 
1.21 	residence of the child is structured between the parties. Joint physical custody does not 
1.22 	require an equal or nearly equal division of time between the parties.
1.23 	(e) Wherever used in this chapter, the term "custodial parent" or "custodian" means 
1.24 	the person who has the physical custody of the child at any particular time.
2.1 	(f) "Custody determination" means a court decision and court orders and instructions 
2.2 	providing for the custody of a child, including parenting time, but does not include a 
2.3 	decision relating to child support or any other monetary obligation of any person.
2.4 	(g) "Custody proceeding" includes proceedings in which a custody determination is 
2.5 	one of several issues, such as an action for dissolution, divorce, or separation, and includes 
2.6 	proceedings involving children who are in need of protection or services, domestic abuse, 
2.7 	and paternity.

2.8 	Sec. 2. Minnesota Statutes 2004, section 518.17, subdivision 1, is amended to read:
2.9 		Subdivision 1.The best interests of the child. (a) "The best interests of the child" 
2.10 	means all relevant factors to be considered and evaluated by the court including:
2.11 	(1) the wishes of the child's parent or parents as to custody;
2.12 	(2) the reasonable preference of the child, if the court deems the child to be of 
2.13 	sufficient age to express preference;
2.14 	(3) the child's primary caretaker;
2.15 	(4) the intimacy of the relationship between each parent and the child;
2.16 	(5) the interaction and interrelationship of the child with a parent or parents, siblings, 
2.17 	and any other person who may significantly affect the child's best interests;
2.18 	(6) the child's adjustment to home, school, and community;
2.19 	(7) the length of time the child has lived in a stable, satisfactory environment and 
2.20 	the desirability of maintaining continuity;
2.21 	(8) the permanence, as a family unit, of the existing or proposed custodial home;
2.22 	(9) the mental and physical health of all individuals involved; except that a 
2.23 	disability, as defined in section  363A.03, of a proposed custodian or the child shall not be 
2.24 	determinative of the custody of the child, unless the proposed custodial arrangement is not 
2.25 	in the best interest of the child; 
2.26 	(10) the capacity and disposition of the parties to give the child love, affection, 
2.27 	and guidance, and to continue educating and raising the child in the child's culture and 
2.28 	religion or creed, if any;
2.29 	(11) the child's cultural background;
2.30 	(12) the effect on the child of the actions of an abuser, if related to domestic abuse, 
2.31 	as defined in section  518B.01, that has occurred between the parents or between a parent 
2.32 	and another individual, whether or not the individual alleged to have committed domestic 
2.33 	abuse is or ever was a family or household member of the parent; and 
3.1 	(13) except in cases in which a finding of domestic abuse as defined in section  
3.2 	518B.01 has been made, the disposition of each parent to encourage and permit frequent 
3.3 	and continuing contact by the other parent with the child. 
3.4 	The court may not use one factor to the exclusion of all others. The primary 
3.5 	caretaker factor may not be used as a presumption in determining the best interests of the 
3.6 	child. The court must make detailed findings on each of the factors and explain how the 
3.7 	factors led to its conclusions and to the determination of the best interests of the child.
3.8 	The court must make detailed findings regarding the rationale for a deviation from the 
3.9 	rebuttable presumptions in subdivision 2.
3.10 	(b) The court shall not consider conduct of a proposed custodian that does not affect 
3.11 	the custodian's relationship to the child.

3.12 	Sec. 3. Minnesota Statutes 2004, section 518.17, subdivision 2, is amended to read:
3.13 		Subd. 2.Factors when joint custody is sought Rebuttable presumptions in 
3.14 	child custody disputes. In addition to the factors listed in subdivision 1, where either 
3.15 	joint legal or joint physical custody is contemplated or sought, the court shall consider the 
3.16 	following relevant factors:
3.17 	(a) the ability of parents to cooperate in the rearing of their children;
3.18 	(b) methods for resolving disputes regarding any major decision concerning the life 
3.19 	of the child, and the parents' willingness to use those methods;
3.20 	(c) whether it would be detrimental to the child if one parent were to have sole 
3.21 	authority over the child's upbringing; and
3.22 	(d) whether domestic abuse, as defined in section  518B.01, has occurred between 
3.23 	the parents.
3.24 	The court shall use a rebuttable presumption that upon request of either or both 
3.25 	parties, joint legal custody is in the best interests of the child. However,
3.26 	(a) The court shall use a rebuttable presumption that joint legal and physical custody 
3.27 	is in the best interests of the child.
3.28 	(b) If the court determines that joint legal and physical custody is not feasible even 
3.29 	with provisions in the judgment and decree to resolve disputes between the parents, the 
3.30 	court shall use a rebuttable presumption that the best interests of the child will be served 
3.31 	by granting legal and physical custody to the parent more disposed to encourage and 
3.32 	permit frequent and continuing contact with the child by the other parent.
3.33 	(c) Notwithstanding paragraph (a) or (b), the court shall use a rebuttable presumption 
3.34 	that joint legal or physical custody is not in the best interests of the child if domestic 
4.1 	abuse, as defined in section  518B.01, has occurred between the parents or by a parent 
4.2 	against the child who is the subject of the matter before the court. 
4.3 	If the court awards joint legal or physical custody over the objection of a party, the 
4.4 	court shall make detailed findings on each of the factors in this subdivision and explain 
4.5 	how the factors led to its determination that joint custody would be in the best interests of 
4.6 	the child.

4.7 	Sec. 4. Minnesota Statutes 2004, section 518.1705, subdivision 3, is amended to read:
4.8 		Subd. 3.Creating parenting plan; restrictions on creation; alternative. (a) 
4.9 	Upon the request of both parents, a parenting plan must be created in lieu of an order for 
4.10 	child custody and parenting time The court shall adopt a parenting plan proposed by 
4.11 	both parents unless the court makes detailed findings that the proposed plan is not in the 
4.12 	best interests of the child.
4.13 	(b) If both parents do not agree to a parenting plan, the court may shall create one on 
4.14 	its own motion, except that the court must not do so if it unless the court:
4.15 	(1) makes detailed findings that use of a parenting plan is not feasible; or
4.16 	(2) finds that a parent has committed domestic abuse against a parent or child who is 
4.17 	a party to, or subject of, the matter before the court. If the court creates a parenting plan 
4.18 	on its own motion, it must not use alternative terminology unless the terminology is 
4.19 	agreed to by the parties.
4.20 	(c) If an existing order does not contain a parenting plan, the parents must not be 
4.21 	required to create a parenting plan as part of a modification order under section  518.64. 
4.22 	(d) A parenting plan must not be required during an action under section  256.87. 
4.23 	(e) If the parents do not agree to a parenting plan and the court does not create one 
4.24 	on its own motion, orders for custody and parenting time must be entered under sections  
4.25 	518.17 and  518.175 or section  257.541, as applicable. 

4.26 	Sec. 5. Minnesota Statutes 2004, section 518.1705, subdivision 4, is amended to read:
4.27 		Subd. 4.Custody designation. A final judgment and decree that includes a 
4.28 	parenting plan using alternate terms to designate decision-making responsibilities or 
4.29 	allocation of residential time between the parents must designate whether the parents have 
4.30 	joint legal custody or joint physical custody or which parent has sole legal custody or sole 
4.31 	physical custody, or both. This designation is solely for enforcement of the final judgment 
4.32 	and decree where this designation is required for that enforcement and has no effect 
4.33 	under the laws of this state, any other state, or another country that do not require this 
4.34 	designation. If the parenting plan substitutes other terms for legal and physical custody 
5.1 	and if a designation of legal and physical custody is necessary for enforcement of the 
5.2 	judgment and decree in another jurisdiction, it must be deemed solely for that purpose 
5.3 	that the parents have joint legal and joint physical custody.

5.4 	Sec. 6. Minnesota Statutes 2004, section 518.175, subdivision 3, is amended to read:
5.5 		Subd. 3.Move to another state. (a) The parent with whom the child resides shall 
5.6 	not move the residence of the child to another state except upon order of the court or 
5.7 	with the consent of the other parent, if the other parent has been given parenting time by 
5.8 	the decree. If the purpose of the move is to interfere with parenting time given to the 
5.9 	other parent by the decree, the court shall not permit the child's residence to be moved to 
5.10 	another state.
5.11 	(b) The court shall apply a best interests standard when considering the request of 
5.12 	the parent with whom the child resides to move the child's residence to another state. 
5.13 	The factors the court must consider in determining the child's best interests include, but 
5.14 	are not limited to:
5.15 	(1) the nature, quality, extent of involvement, and duration of the child's relationship 
5.16 	with the person proposing to relocate and with the nonrelocating person, siblings, and 
5.17 	other significant persons in the child's life;
5.18 	(2) the age, developmental stage, needs of the child, and the likely impact the 
5.19 	relocation will have on the child's physical, educational, and emotional development, 
5.20 	taking into consideration any special needs of the child;
5.21 	(3) the feasibility of preserving the relationship between the nonrelocating person 
5.22 	and the child through suitable parenting time arrangements, considering the logistics 
5.23 	and financial circumstances of the parties;
5.24 	(4) the child's preference, taking into consideration the age and maturity of the child;
5.25 	(5) whether there is an established pattern of conduct of the person seeking the 
5.26 	relocation either to promote or thwart the relationship of the child and the nonrelocating 
5.27 	person;
5.28 	(6) whether the relocation of the child will enhance the general quality of life for 
5.29 	both the custodial parent seeking the relocation and the child including, but not limited to, 
5.30 	financial or emotional benefit or educational opportunity;
5.31 	(7) the reasons of each person for seeking or opposing the relocation; and
5.32 	(8) the effect on the safety and welfare of the child, or of the parent requesting to 
5.33 	move the child's residence, of domestic abuse, as defined in section 518B.01. 
5.34 	(c) The burden of proof is upon the parent requesting to move the residence of the 
5.35 	child to another state, except that if the court finds that the person requesting permission 
6.1 	to move has been a victim of domestic abuse by the other parent, the burden of proof is 
6.2 	upon the parent opposing the move.  The court must consider all of the factors in this 
6.3 	subdivision in determining the best interests of the child. 
6.4 	(d) The parents may agree to a legal standard that will govern a decision concerning 
6.5 	removal of a child's residence from this state that is different from the standard in this 
6.6 	subdivision, provided that: 
6.7 	(1) both parents were represented by counsel when the agreement was approved; or 
6.8 	(2) the court finds that the parents were fully informed of the implications of the 
6.9 	agreement and the agreement was voluntary. 

6.10 	Sec. 7. Minnesota Statutes 2004, section 518.18, is amended to read:
6.11 	518.18 MODIFICATION OF ORDER.
6.12 	(a) Unless agreed to in writing by the parties, no motion to modify a custody order 
6.13 	or parenting plan may be made earlier than one year after the date of the entry of a decree 
6.14 	of dissolution or legal separation containing a provision dealing with custody, except in 
6.15 	accordance with paragraph (c).
6.16 	(b) If a motion for modification has been heard, whether or not it was granted, unless 
6.17 	agreed to in writing by the parties no subsequent motion may be filed within two years 
6.18 	after disposition of the prior motion on its merits, except in accordance with paragraph (c).
6.19 	(c) The time limitations prescribed in paragraphs (a) and (b) shall not prohibit a 
6.20 	motion to modify a custody order or parenting plan if the court finds that there is persistent 
6.21 	and willful denial or interference with parenting time, or has reason to believe that the 
6.22 	child's present environment may endanger the child's physical or emotional health or 
6.23 	impair the child's emotional development.
6.24 	(d) If the court has jurisdiction to determine child custody matters, the court shall 
6.25 	not modify a prior custody order or a parenting plan provision which specifies the child's 
6.26 	primary residence unless it finds, upon the basis of facts, including unwarranted denial of, 
6.27 	or interference with, a duly established parenting time schedule, that have arisen since the 
6.28 	prior order or that were unknown to the court at the time of the prior order, that a change 
6.29 	has occurred in the circumstances of the child or the parties and that the modification is 
6.30 	necessary to serve the best interests of the child. In applying these standards the court 
6.31 	shall retain the custody arrangement or the parenting plan provision specifying the child's 
6.32 	primary residence that was established by the prior order unless:
6.33 	(i) the court finds that a change in the custody arrangement or primary residence is in 
6.34 	the best interests of the child and the parties previously agreed, in a writing approved by 
6.35 	a court, to apply the best interests standard in section  518.17 or  257.025, as applicable
7.1 	pursuant to section 518.175, subdivision 3, or pursuant to a written agreement of the 
7.2 	parties approved by the court to apply the best interests standard of section 257.025 or 
7.3 	518.17; and, with respect to agreements approved by a court on or after April 28, 2000, 
7.4 	both parties were represented by counsel when the agreement was approved or the court 
7.5 	found the parties were fully informed, the agreement was voluntary, and the parties were 
7.6 	aware of its implications; 
7.7 	(ii) both parties agree to the modification;
7.8 	(iii) the child has been integrated into the family of the petitioner with the consent of 
7.9 	the other party; or
7.10 	(iv) the child's present environment endangers the child's physical or emotional 
7.11 	health or impairs the child's emotional development and the harm likely to be caused by a 
7.12 	change of environment is outweighed by the advantage of a change to the child.; or
7.13 	(v) the court has denied a request of the primary custodial parent to move the 
7.14 	residence of the child to another state, and the primary custodial parent has relocated with 
7.15 	the child to another state despite the order of the court.
7.16 	In addition, a court may modify a custody order or parenting plan under section  
7.17 	631.52. 
7.18 	(e) In deciding whether to modify a prior joint custody order, the court shall apply 
7.19 	the standards set forth in paragraph (d) unless: (1) the parties agree in writing to the 
7.20 	application of a different standard, or (2) the party seeking the modification is asking the 
7.21 	court for permission to move the residence of the child to another state.
7.22 	(f) If a parent has been granted sole physical custody of a minor and the child 
7.23 	subsequently lives with the other parent, and temporary sole physical custody has been 
7.24 	approved by the court or by a court-appointed referee, the court may suspend the obligor's 
7.25 	child support obligation pending the final custody determination. The court's order 
7.26 	denying the suspension of child support must include a written explanation of the reasons 
7.27 	why continuation of the child support obligation would be in the best interests of the child.

7.28 	Sec. 8. Minnesota Statutes 2004, section 518B.01, subdivision 5, is amended to read:
7.29 		Subd. 5.Hearing on application; notice. (a) Upon receipt of the petition, the court 
7.30 	shall order a hearing which shall be held not later than 14 days from the date of the order 
7.31 	for hearing unless an ex parte order is issued.
7.32 	(b) If an ex parte order has been issued under subdivision 7 and the petitioner seeks 
7.33 	only the relief under subdivision 7, paragraph (a), a hearing is not required unless:
7.34 	(1) the court declines to order the requested relief; or
7.35 	(2) one of the parties requests a hearing.
8.1 	(c) If an ex parte order has been issued under subdivision 7 and the petitioner 
8.2 	seeks relief beyond that specified in subdivision 7, paragraph (a), or if the court declines 
8.3 	to order relief requested by the petitioner, a hearing must be held within seven days. 
8.4 	Personal service of the ex parte order may be made upon the respondent at any time up 
8.5 	to 12 24 hours prior to the time set for the hearing, provided that the respondent at the 
8.6 	hearing may request a continuance of up to five 30 days if served fewer than five days 
8.7 	prior to the hearing, which continuance shall must be granted unless there are compelling 
8.8 	reasons not to.
8.9 	(d) If an ex parte order has been issued only granting relief under subdivision 7, 
8.10 	paragraph (a), and the respondent requests a hearing, the hearing shall be held within ten 
8.11 	days of the court's receipt of the respondent's request. Service of the notice of hearing 
8.12 	must be made upon the petitioner not less than five days prior to the hearing. The court 
8.13 	shall serve the notice of hearing upon the petitioner by mail in the manner provided in 
8.14 	the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and 
8.15 	shall also mail notice of the date and time of the hearing to the respondent. In the event 
8.16 	that service cannot be completed in time to give the respondent or petitioner the minimum 
8.17 	notice required under this subdivision, the court may set a new hearing date no more 
8.18 	than five days later.
8.19 	(e) If for good cause shown either party is unable to proceed at the initial hearing 
8.20 	and prior to or at the hearing requests a continuance and the court finds that a continuance 
8.21 	is appropriate, the hearing may be continued. Unless otherwise agreed by the parties and 
8.22 	approved by the court, the continuance shall be for no more than five 30 days. If the court 
8.23 	grants the requested continuance, the court shall also issue a written order continuing all 
8.24 	provisions of the ex parte order pending the issuance of an order after the hearing.
8.25 	(f) Notwithstanding the preceding provisions of this subdivision, service on the 
8.26 	respondent may be made by one week published notice, as provided under section  645.11, 
8.27 	provided the petitioner files with the court an affidavit stating that an attempt at personal 
8.28 	service made by a sheriff or other law enforcement or corrections officer was unsuccessful 
8.29 	because the respondent is avoiding service by concealment or otherwise, and that a copy 
8.30 	of the petition and notice of hearing has been mailed to the respondent at the respondent's 
8.31 	residence or that the residence is not known to the petitioner. Service under this paragraph 
8.32 	is complete seven days after publication. The court shall set a new hearing date if necessary 
8.33 	to allow the respondent the five-day minimum notice required under paragraph (d). 

8.34 	Sec. 9.  REPEALER.
 8.35 	Minnesota Statutes 2004, section 518.1705, subdivision 7, is repealed.