HF 2357

1st Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to family law; changing procedures and 
  1.3             requirements concerning visitation and interest on 
  1.4             child support debts or arrearages; amending Minnesota 
  1.5             Statutes 1994, sections 518.175, subdivisions 1 and 6; 
  1.6             518.1751, subdivisions 1, 2, 3, and by adding 
  1.7             subdivisions; and 548.091, subdivision 1a; Minnesota 
  1.8             Statutes 1995 Supplement, section 518.5512, by adding 
  1.9             a subdivision. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11                             ARTICLE 1
  1.12     Section 1.  Minnesota Statutes 1994, section 518.175, 
  1.13  subdivision 1, is amended to read: 
  1.14     Subdivision 1.  [GENERAL.] (a) In all proceedings for 
  1.15  dissolution or legal separation, subsequent to the commencement 
  1.16  of the proceeding and continuing thereafter during the minority 
  1.17  of the child, the court shall, upon the request of either 
  1.18  parent, grant such rights of visitation on behalf of the child 
  1.19  and noncustodial parent as will enable the child and the 
  1.20  noncustodial parent to maintain a child to parent relationship 
  1.21  that will be in the best interests of the child.  If the court 
  1.22  finds, after a hearing, that visitation is likely to endanger 
  1.23  the child's physical or emotional health or impair the child's 
  1.24  emotional development, the court shall restrict visitation by 
  1.25  the noncustodial parent as to time, place, duration, or 
  1.26  supervision and may deny visitation entirely, as the 
  1.27  circumstances warrant.  The court shall consider the age of the 
  2.1   child and the child's relationship with the noncustodial parent 
  2.2   prior to the commencement of the proceeding.  A parent's failure 
  2.3   to pay support because of the parent's inability to do so shall 
  2.4   not be sufficient cause for denial of visitation. 
  2.5      (b) Upon the request of either party, a visitation order 
  2.6   must include a specific schedule for visitation, including the 
  2.7   frequency and duration of visitation and visitation during 
  2.8   holidays and vacations. 
  2.9      Sec. 2.  Minnesota Statutes 1994, section 518.175, 
  2.10  subdivision 6, is amended to read: 
  2.11     Subd. 6.  [COMPENSATORY VISITATION.] (a) If the court finds 
  2.12  that a person has been wrongfully deprived of the duly 
  2.13  established right to visitation, the court shall order the 
  2.14  custodial parent to permit additional visits to compensate for 
  2.15  the visitation of which the person was deprived.  Additional 
  2.16  visits must be: 
  2.17     (1) of the same type and duration as the wrongfully denied 
  2.18  visit; 
  2.19     (2) taken within one year after the wrongfully denied 
  2.20  visit; and 
  2.21     (3) at a time acceptable to the person deprived of 
  2.22  visitation. 
  2.23     (b) Upon filing a motion for compensatory visitation under 
  2.24  paragraph (a), a party may request the court administrator to 
  2.25  refer the matter to a visitation expeditor under section 
  2.26  518.1751, subdivision 3.  To assist a party in making the 
  2.27  request, the administrator shall provide a uniform form, 
  2.28  including a brief description of the process in section 
  2.29  518.1751, subdivision 3.  The court administrator shall inform 
  2.30  every party who files a motion under paragraph (a) of the option 
  2.31  to proceed under section 518.1751, subdivision 3.  A party who 
  2.32  chooses to proceed under section 518.1751, subdivision 3, 
  2.33  continues to have a motion pending under paragraph (a) and the 
  2.34  administrator shall schedule the motion under current practice. 
  2.35     (c) If a party has a valid visitation order on file with 
  2.36  the court and has reason to believe that a future scheduled 
  3.1   visit will be denied, the party may request the court 
  3.2   administrator to refer the matter to a visitation expeditor 
  3.3   under section 518.1751, subdivision 3, without filing a motion 
  3.4   under paragraph (a). 
  3.5      (d) If a party is wrongfully denied compensatory visitation 
  3.6   awarded in an order entered under paragraph (a), the party may 
  3.7   present a copy of the order to a law enforcement agency.  The 
  3.8   law enforcement agency shall ensure that the child is delivered 
  3.9   to the parent entitled to compensatory visitation, and may, if 
  3.10  necessary, take the child into custody. 
  3.11     Sec. 3.  Minnesota Statutes 1994, section 518.1751, 
  3.12  subdivision 1, is amended to read: 
  3.13     Subdivision 1.  [VISITATION EXPEDITOR.] (a) Upon agreement 
  3.14  of all parties, or pursuant to section 518.175, subdivision 6, 
  3.15  paragraph (b) or (c), the court may appoint a visitation 
  3.16  expeditor to resolve visitation disputes that occur under a 
  3.17  visitation order while a matter is pending under this chapter, 
  3.18  chapter 257 or 518A, or after a decree is entered.  Prior to 
  3.19  appointing the visitation expeditor, the court shall give the 
  3.20  parties notice that the costs of the visitation expeditor will 
  3.21  be apportioned among the parties and that if the parties do not 
  3.22  reach an agreement, the visitation expeditor will make a 
  3.23  nonbinding decision resolving the dispute, except that a 
  3.24  visitation expeditor's decision made under subdivision 3c is 
  3.25  binding on the parties unless vacated or modified by the court.  
  3.26     (b) For purposes of this section, "visitation dispute" 
  3.27  means a disagreement among parties about visitation with a 
  3.28  child.  "Visitation dispute" includes a claim by a custodial 
  3.29  parent that a noncustodial parent is not visiting a child as 
  3.30  well as a claim by a noncustodial parent that a custodial parent 
  3.31  is denying or interfering with visitation. 
  3.32     Sec. 4.  Minnesota Statutes 1994, section 518.1751, 
  3.33  subdivision 2, is amended to read: 
  3.34     Subd. 2.  [APPOINTMENT; COSTS.] The court shall appoint the 
  3.35  visitation expeditor.  If the parties cannot agree on a 
  3.36  visitation expeditor, the court shall present a list of 
  4.1   candidates with one more candidate than there are parties to the 
  4.2   dispute.  In developing the list of candidates, the court must 
  4.3   give preference to persons who agree to volunteer their 
  4.4   services.  Each party shall strike one name and the court shall 
  4.5   appoint the remaining individual as the visitation expeditor.  
  4.6   In its order appointing the visitation expeditor, the court 
  4.7   shall apportion the costs of the visitation expeditor among the 
  4.8   parties, with each party bearing the portion of costs that the 
  4.9   court determines is just and equitable under the circumstances; 
  4.10  except that a party who is proceeding under section 518.175, 
  4.11  subdivision 6, paragraph (b), and qualifies for waiver of fees 
  4.12  under section 563.01 is not required to pay for the costs of the 
  4.13  visitation expeditor. 
  4.14     Sec. 5.  Minnesota Statutes 1994, section 518.1751, 
  4.15  subdivision 3, is amended to read: 
  4.16     Subd. 3.  [AGREEMENT OR DECISION.] (a) If a visitation 
  4.17  dispute arises, the visitation expeditor shall meet with the 
  4.18  parties within five days and make a diligent effort to 
  4.19  facilitate an agreement to resolve the visitation dispute.  If 
  4.20  the parties are before the visitation expeditor under section 
  4.21  518.175, subdivision 6, paragraph (b), and an agreement is 
  4.22  reached, it must be put in writing, served on the parties by the 
  4.23  visitation expeditor, and an affidavit of service must be filed 
  4.24  with the court. 
  4.25     (b) If the parties do not reach an agreement, the expeditor 
  4.26  shall make a decision resolving the dispute as soon as 
  4.27  possible.  If a party does not comply with an agreement of the 
  4.28  parties or a decision of the expeditor, any party may bring a 
  4.29  motion with the court to resolve the dispute.  The court may 
  4.30  consider the agreement of the parties or the decision of the 
  4.31  expeditor, but neither is binding on the court. 
  4.32     (c) If the parties are before the visitation expeditor 
  4.33  under section 518.175, subdivision 6, paragraph (b), the 
  4.34  expeditor shall make a decision resolving the compensatory 
  4.35  visitation motion as soon as possible but not later than five 
  4.36  calendar days after the final meeting with the parties.  If the 
  5.1   expeditor decides to award compensatory visitation, the 
  5.2   expeditor's decision must include a finding that visitation was 
  5.3   wrongfully denied.  The written decision must be served on the 
  5.4   parties by the court or the visitation expeditor and an 
  5.5   affidavit of service must be filed with the court.  If a 
  5.6   compensatory visitation motion requires immediate resolution, 
  5.7   the expeditor may confer with the parties through a telephone 
  5.8   conference or similar means.  If a party does not comply with an 
  5.9   agreement of the parties or a decision of the expeditor, the 
  5.10  motion under section 518.175, subdivision 6, must remain on the 
  5.11  court's calendar for resolution.  The motion must not be removed 
  5.12  from the court's calendar without the written request of each 
  5.13  party.  A party is not required to exhaust the expeditor remedy 
  5.14  before having a calendared motion heard by the court.  The court 
  5.15  may consider the agreement of the parties or the decision of the 
  5.16  expeditor, but neither is binding on the court.  Upon request of 
  5.17  the court, the expeditor shall prepare an affidavit for the 
  5.18  court that summarizes the expeditor's findings and reasons for 
  5.19  the expeditor's decision and shall provide a copy to the parties 
  5.20  at least five days prior to the hearing.  A proceeding under 
  5.21  this paragraph is limited to the award of compensatory 
  5.22  visitation times.  The existing visitation order must not be 
  5.23  modified under this paragraph.  
  5.24     (d) An expeditor may conduct a proceeding without the 
  5.25  presence of a party if the party chooses not to participate in 
  5.26  the proceeding. 
  5.27     Sec. 6.  Minnesota Statutes 1994, section 518.1751, is 
  5.28  amended by adding a subdivision to read: 
  5.29     Subd. 5.  [ENFORCEMENT OF COMPENSATORY AGREEMENT.] If a 
  5.30  party who is proceeding under this section pursuant to section 
  5.31  518.175, subdivision 6, paragraph (b), is wrongly denied 
  5.32  compensatory visitation granted in a written agreement or 
  5.33  written decision under this section, the party may present a 
  5.34  copy of the agreement or decision and a copy of the affidavit of 
  5.35  service under subdivision 3 to a law enforcement agency.  The 
  5.36  law enforcement agency shall ensure that the child is delivered 
  6.1   to the parent entitled to compensatory visitation and may, if 
  6.2   necessary, take the child into custody.  
  6.3      Sec. 7.  Minnesota Statutes 1994, section 518.1751, is 
  6.4   amended by adding a subdivision to read: 
  6.5      Subd. 6.  [IMMUNITY.] A visitation expeditor is immune from 
  6.6   civil or criminal liability for actions taken under subdivision 
  6.7   3, paragraphs (a) and (c), when acting under section 518.175, 
  6.8   subdivision 6, paragraph (b). 
  6.9      Sec. 8.  [VISITATION EXPEDITOR FORM.] 
  6.10     The state court administrator shall prepare and make 
  6.11  available to all court administrators a uniform form to be used 
  6.12  by parties who seek the assistance of a visitation expeditor 
  6.13  under Minnesota Statutes, section 518.1751, subdivision 3. 
  6.14                             ARTICLE 2
  6.15     Section 1.  Minnesota Statutes 1995 Supplement, section 
  6.16  518.5512, is amended by adding a subdivision to read: 
  6.17     Subd. 4.  [TERMINATION OF INTEREST.] The public authority 
  6.18  or a party bringing a motion under section 548.091, subdivision 
  6.19  1a, may proceed immediately to a contested administrative 
  6.20  proceeding under section 518.5511, subdivision 4. 
  6.21     Sec. 2.  Minnesota Statutes 1994, section 548.091, 
  6.22  subdivision 1a, is amended to read: 
  6.23     Subd. 1a.  [CHILD SUPPORT JUDGMENT BY OPERATION OF LAW.] 
  6.24  (a) Any payment or installment of support required by a judgment 
  6.25  or decree of dissolution or legal separation, determination of 
  6.26  parentage, an order under chapter 518C, an order under section 
  6.27  256.87, or an order under section 260.251, that is not paid or 
  6.28  withheld from the obligor's income as required under section 
  6.29  518.611 or 518.613, is a judgment by operation of law on and 
  6.30  after the date it is due and is entitled to full faith and 
  6.31  credit in this state and any other state.  Except as otherwise 
  6.32  provided by paragraph (b), interest accrues from the date the 
  6.33  unpaid amount due is greater than the current support due at the 
  6.34  annual rate provided in section 549.09, subdivision 1, plus two 
  6.35  percent, not to exceed an annual rate of 18 percent.  A payment 
  6.36  or installment of support that becomes a judgment by operation 
  7.1   of law between the date on which a party served notice of a 
  7.2   motion for modification under section 518.64, subdivision 2, and 
  7.3   the date of the court's order on modification may be modified 
  7.4   under that subdivision. 
  7.5      (b) Notwithstanding the provisions of section 549.09, upon 
  7.6   motion to the court and upon proof by the obligor of 36 
  7.7   consecutive months of complete and timely payments of both 
  7.8   current support and court-ordered paybacks of a child support 
  7.9   debt or arrearage, the court may order interest on the remaining 
  7.10  debt or arrearage to stop accruing.  Timely payments are those 
  7.11  made in the month in which they are due.  If, thereafter, the 
  7.12  obligor fails to make complete and timely payments of both 
  7.13  current support and court-ordered paybacks of child support debt 
  7.14  or arrearage, the public authority or the obligee may move the 
  7.15  court for the reinstatement of interest as of the month in which 
  7.16  the obligor ceased making complete and timely payments. 
  7.17     The court shall provide copies of all orders issued under 
  7.18  this section to the public authority.  The commissioner of human 
  7.19  services shall prepare and make available to the court and the 
  7.20  parties forms to be submitted by the parties in support of a 
  7.21  motion under this section.