HF 1256

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; clarifying use of certain 
  1.3             factors in determining the best interests of a child; 
  1.4             clarifying certain language on division of pension 
  1.5             plans; amending Minnesota Statutes 2000, sections 
  1.6             518.17, subdivision 1; 518.1705, subdivision 5; and 
  1.7             518.58, subdivision 4. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 2000, section 518.17, 
  1.10  subdivision 1, is amended to read: 
  1.11     Subdivision 1.  [THE BEST INTERESTS OF THE CHILD.] (a) "The 
  1.12  best interests of the child" means all relevant factors to be 
  1.13  considered and evaluated by the court including: 
  1.14     (1) the wishes of the child's parent or parents as to 
  1.15  custody; 
  1.16     (2) the reasonable preference of the child, if the court 
  1.17  deems the child to be of sufficient age to express preference; 
  1.18     (3) the child's primary caretaker; 
  1.19     (4) the intimacy of the relationship between each parent 
  1.20  and the child; 
  1.21     (5) the interaction and interrelationship of the child with 
  1.22  a parent or parents, siblings, and any other person who may 
  1.23  significantly affect the child's best interests; 
  1.24     (6) the child's adjustment to home, school, and community; 
  1.25     (7) the length of time the child has lived in a stable, 
  1.26  satisfactory environment and the desirability of maintaining 
  2.1   continuity; 
  2.2      (8) the permanence, as a family unit, of the existing or 
  2.3   proposed custodial home; 
  2.4      (9) the mental and physical health of all individuals 
  2.5   involved; except that a disability, as defined in section 
  2.6   363.01, of a proposed custodian or the child shall not be 
  2.7   determinative of the custody of the child, unless the proposed 
  2.8   custodial arrangement is not in the best interest of the child; 
  2.9      (10) the capacity and disposition of the parties to give 
  2.10  the child love, affection, and guidance, and to continue 
  2.11  educating and raising the child in the child's culture and 
  2.12  religion or creed, if any; 
  2.13     (11) the child's cultural background; 
  2.14     (12) the effect on the child of the actions of an abuser, 
  2.15  if related to domestic abuse, as defined in section 518B.01, 
  2.16  that has occurred between the parents or between a parent and 
  2.17  another individual, whether or not the individual alleged to 
  2.18  have committed domestic abuse is or ever was a family or 
  2.19  household member of the parent; and 
  2.20     (13) except in cases in which a finding of domestic abuse 
  2.21  as defined in section 518B.01 has been made, the disposition of 
  2.22  each parent to encourage and permit frequent and continuing 
  2.23  contact by the other parent with the child. 
  2.24     (b) The court may not use one factor to the exclusion of 
  2.25  all others.  The primary caretaker factor may not be used as a 
  2.26  presumption in determining the best interests of the child.  
  2.27     (c) The court must make detailed findings on each of the 
  2.28  factors and explain how the factors led to its conclusions and 
  2.29  to the determination of the best interests of the child. 
  2.30     (d) The primary caretaker factor in paragraph (a), clause 
  2.31  (3), may not be used as a presumption in determining the best 
  2.32  interests of the child. 
  2.33     (e) If the court awards sole or joint legal or physical 
  2.34  custody, access, or parenting time to a party who has committed 
  2.35  domestic abuse:  (1) which resulted in bodily injury; (2) which 
  2.36  involved the use of a dangerous weapon; or (3) where there 
  3.1   exists a pattern of domestic abuse as defined in section 
  3.2   518B.01, subdivision 2, paragraph (a), the court shall make 
  3.3   detailed findings explaining how the award is consistent with 
  3.4   the emotional and physical safety of the child and the other 
  3.5   party. 
  3.6      (b) (f) The court shall not consider conduct of a proposed 
  3.7   custodian that does not affect the custodian's relationship to 
  3.8   the child. 
  3.9      Sec. 2.  Minnesota Statutes 2000, section 518.1705, 
  3.10  subdivision 5, is amended to read: 
  3.11     Subd. 5.  [ROLE OF COURT.] If both parents agree to the use 
  3.12  of a parenting plan but are unable to agree on all terms, the 
  3.13  court may create a parenting plan under this section.  If the 
  3.14  court is considering a parenting plan, it may require each 
  3.15  parent to submit a proposed parenting plan at any time before 
  3.16  entry of the final judgment and decree.  If parents seek the 
  3.17  court's assistance in deciding the schedule for each parent's 
  3.18  time with the child or designation of decision-making 
  3.19  responsibilities regarding the child, the court may order an 
  3.20  evaluation and should consider the appointment of a guardian ad 
  3.21  litem.  Parenting plans, whether entered on the court's own 
  3.22  motion, following a contested hearing, or reviewed by the court 
  3.23  pursuant to a stipulation, must be based on the best interests 
  3.24  factors in section 518.17 or 257.025, as applicable. 
  3.25     Sec. 3.  Minnesota Statutes 2000, section 518.58, 
  3.26  subdivision 4, is amended to read: 
  3.27     Subd. 4.  [PENSION PLANS.] (a) The division of marital 
  3.28  property that represents pension plan benefits or rights in the 
  3.29  form of future pension plan payments:  
  3.30     (1) is payable only to the extent of the amount of the 
  3.31  pension plan benefit payable under the terms of the plan; 
  3.32     (2) is not payable for a period that exceeds the time that 
  3.33  pension plan benefits are payable to the pension plan benefit 
  3.34  recipient; 
  3.35     (3) is not payable in a lump sum amount from defined 
  3.36  benefit pension plan assets attributable in any fashion to a 
  4.1   spouse with the status of an active member, deferred retiree, or 
  4.2   benefit recipient of a pension plan; 
  4.3      (4) if the former spouse to whom the payments are to be 
  4.4   made dies prior to the end of the specified payment period with 
  4.5   the right to any remaining payments accruing to an estate or to 
  4.6   more than one survivor, is payable only to a trustee on behalf 
  4.7   of the estate or the group of survivors for subsequent 
  4.8   apportionment by the trustee; and 
  4.9      (5) in the case of defined benefit public pension plan 
  4.10  benefits or rights, may not commence until the public plan 
  4.11  member submits a valid application for a public pension plan 
  4.12  benefit and the benefit becomes payable. 
  4.13     (b) The individual retirement account plans established 
  4.14  under chapter 354B may provide in its plan document, if 
  4.15  published and made generally available, for an alternative 
  4.16  marital property division or distribution of individual 
  4.17  retirement account plan assets.  If an alternative division or 
  4.18  distribution procedure is provided, it applies in place of 
  4.19  paragraph (a), clause (5).