HF 2013

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:57am

A bill for an act
relating to joint physical custody; establishing a rebuttable presumption;
amending Minnesota Statutes 2008, section 518.003, subdivision 3; proposing
coding for new law in Minnesota Statutes, chapter 518; repealing Minnesota
Statutes 2008, section 518.17, subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 518.003, subdivision 3, is amended to read:

Subd. 3.

Custody.

Unless otherwise agreed by the parties:

(a) "Legal custody" means the right to determine the child's upbringing, including
education, health care, and religious training.

(b) "Joint legal custody" means that both parents have equal rights and
responsibilities, including the right to participate in major decisions determining the
child's upbringing, including education, health care, and religious training.

(c) "Physical custody and residence" means the routine daily care and control and
the residence of the child.

(d) "Joint physical custody" means that the routine daily care and control and the
residence of the child is structured between the parties. new text begin It means the parents shall share
time with the child as equally as possible.
new text end

(e) Wherever used in this chapter, the term "custodial parent" or "custodian" means
the person who has the physical custody of the child at any particular time.

(f) "Custody determination" means a court decision and court orders and instructions
providing for the custody of a child, including parenting time, but does not include a
decision relating to child support or any other monetary obligation of any person.

(g) "Custody proceeding" includes proceedings in which a custody determination is
one of several issues, such as an action for dissolution, divorce, or separation, and includes
proceedings involving children who are in need of protection or services, domestic abuse,
and paternity.

Sec. 2.

new text begin [518.169] CHILDREN'S EQUAL PARENTING ACCESS ACT.
new text end

new text begin Subdivision 1. new text end

new text begin Public policy. new text end

new text begin (a) The legislature, recognizing the importance
of protections afforded children by their ability to develop strong parental bonds, and
recognizing the fundamental interest of liberty that parents enjoy respecting the care,
custody, and companionship of their children, finds and declares the following with
respect to the intent of Minnesota statutes related to families:
new text end

new text begin (1) an intact, involved two-parent home provides the optimal environment through
which children grow into productive and responsible adult citizens;
new text end

new text begin (2) parents are primary in the nurturing and development of their children. Our
society, state, and statutes are secondary structures designed to support, not supplant, both
parents in their role as the primary shapers of their children;
new text end

new text begin (3) mothers and fathers provide unique and invaluable contributions toward the
development of their children. Each parent's contributions to the upbringing of their
children are indistinguishable and equally necessary to assure children the best opportunity
to develop into healthy citizens;
new text end

new text begin (4) children should be separated from their parents only under the most compelling
and unusual circumstances in order to protect a child from substantial and imminent harm;
new text end

new text begin (5) children should have frequent and continuing physical contact with both parents
under joint legal and physical custody when the parents live separately, including after
parental separation or dissolution of marriage. The proper role of the state is to interfere to
the least degree in familial relationships with the specific purpose of preserving maximum
time allocations with parents and their children;
new text end

new text begin (6) parents may, and should be encouraged to, reach any agreement mutually
acceptable to them regarding their parenting time allocations that reflects the individual
circumstances of the parents. In the event parents cannot reach agreement on a parenting
arrangement, it is the specific intent of Minnesota law that parents have a right to a
rebuttable presumption of equal time with their children; and
new text end

new text begin (7) the judiciary in contested custody proceedings should demonstrate consistent
application of the presumption in favor of joint custody in order to minimize the
adversarial nature of custody proceedings.
new text end

new text begin (b) The purpose of this section is to prevent children from being alienated or
disenfranchised from their parents' lives through the interference of either parent.
new text end

new text begin (c) This section establishes clear legislative policy regarding the relationship of
children with their parents when parents live separately.
new text end

new text begin (d) In accordance with the findings in paragraph (a), the legislature declares that
public policy is advanced and the well-being of Minnesota's children is promoted through
the recognition of both parents' fundamental freedoms to actively participate in the care,
custody, and companionship of their children.
new text end

new text begin Subd. 2. new text end

new text begin Joint custody. new text end

new text begin (a) In cases of marital dissolution or unmarried parentage,
when paternity has been established, both parents enjoy a rebuttable presumption of joint
legal and physical custody of their children.
new text end

new text begin (b) The burden of overcoming the presumption rests on the parent challenging the
presumption. The presumption may only be overcome by demonstrating an unfitness of
the parent being challenged that would cause substantial harm to the children. The clear
and convincing evidence standard must be used in making a fitness determination.
new text end

new text begin (c) Allegations of substance abuse, mental illness, spousal or child abuse or neglect,
and any subsequent issuance of protective orders are not sufficient to cause cessation or
reduction in parent and child contact. Only written findings of substantiated abuse are
sufficient to allow the court to deviate from the joint physical custody arrangement and
award physical custody to one parent. In no instance may the court limit parent and child
contact absent compelling necessity to prevent substantial and imminent harm to the child.
new text end

new text begin (d) Knowingly making false allegations of child or spousal abuse is sufficient
grounds to challenge the parental fitness of the accuser. Allegations raised in the context
of divorce or custody proceedings deserve heightened scrutiny as to their veracity.
new text end

new text begin (e) When the fitness of a parent is challenged, the court must find by clear and
convincing evidence that the parent's past behaviors would qualify the parent's child to be
found a child in need of protection or services under section 260C.007, subdivision 6.
new text end

new text begin (f) The court shall provide written findings of fact and conclusions of law when
entering an order that does not maintain the presumption of joint legal and physical
custody. The court must make written findings that enumerate which of the factors in this
subdivision are applicable and by what evidence these factors were demonstrated.
new text end

new text begin (g) If the court finds that a party has overcome the presumption in favor of joint
custody, the court shall use the best interest standards in section 518.17, subdivision 1, to
makes its determination for custodial arrangements.
new text end

Sec. 3. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, section 518.17, subdivision 2, new text end new text begin is repealed.
new text end