HF 2494

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to family law; prohibiting a court from considering a parent's military
status when determining or modifying a legal or physical custody order for
a child or determining or modifying parenting time orders upon a parent's
discharge from active military service; amending Minnesota Statutes 2006,
sections 257C.04, by adding a subdivision; 518.003, by adding a subdivision;
518.17, subdivisions 1, 2; 518.175, by adding a subdivision; 518.18; proposing
coding for new law in Minnesota Statutes, chapter 518.

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

Section 1.

Minnesota Statutes 2006, section 257C.04, is amended by adding a
subdivision to read:

new text begin Subd. 3. new text end

new text begin Military status. new text end

new text begin If a parent who is a service member is a party seeking
custody under this section, the court shall not consider as a factor in determining the
legal or physical custody of a child whether the service member has been, is, or may
be ordered into active military service in the United States armed forces and as a
consequence has been, is, or will be absent from the service member's home. "Service
member" means a member of the United States armed forces, including both its regular
and reserve components.
new text end

Sec. 2.

Minnesota Statutes 2006, section 518.003, is amended by adding a subdivision
to read:

new text begin Subd. 10. new text end

new text begin Service member. new text end

new text begin "Service member" means a member of the United
States armed forces, including both its regular and reserve components.
new text end

Sec. 3.

Minnesota Statutes 2006, section 518.17, subdivision 1, is amended to read:

Subdivision 1.

The best interests of the child.

(a) "The best interests of the child"
means all relevant factors to be considered and evaluated by the court including:

(1) the wishes of the child's parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of
sufficient age to express preference;

(3) the child's primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings,
and any other person who may significantly affect the child's best interests;

(6) the child's adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a
disability, as defined in section 363A.03, of a proposed custodian or the child shall not be
determinative of the custody of the child, unless the proposed custodial arrangement is not
in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection,
and guidance, and to continue educating and raising the child in the child's culture and
religion or creed, if any;

(11) the child's cultural background;

(12) the effect on the child of the actions of an abuser, if related to domestic abuse,
as defined in section 518B.01, that has occurred between the parents or between a parent
and another individual, whether or not the individual alleged to have committed domestic
abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse as defined in section
518B.01 has been made, the disposition of each parent to encourage and permit frequent
and continuing contact by the other parent with the child.

The court may not use one factor to the exclusion of all others. The primary
caretaker factor may not be used as a presumption in determining the best interests of the
child. The court must make detailed findings on each of the factors and explain how the
factors led to its conclusions and to the determination of the best interests of the child.

(b) The court shall not consider conduct of a proposed custodian that does not affect
the custodian's relationship to the child.

new text begin (c) If a parent is a service member, the court shall not consider as a factor in
determining the legal or physical custody of a child whether the service member has been,
is, or may be ordered into active military service in the United States armed forces and as
a consequence has been, is, or may be absent from the service member's home.
new text end

Sec. 4.

Minnesota Statutes 2006, section 518.17, subdivision 2, is amended to read:

Subd. 2.

Factors when joint custody is sought.

In addition to the factors listed in
subdivision 1, where either joint legal or joint physical custody is contemplated or sought,
the court shall consider the following relevant factors:

(a) the ability of parents to cooperate in the rearing of their children;

(b) methods for resolving disputes regarding any major decision concerning the life
of the child, and the parents' willingness to use those methods;

(c) whether it would be detrimental to the child if one parent were to have sole
authority over the child's upbringing; and

(d) whether domestic abuse, as defined in section 518B.01, has occurred between
the parents.

new text begin If a parent is a service member, the court shall not consider as a factor in determining
the legal or physical custody of a child whether the service member has been, is, or may be
ordered into active military service in the United States armed forces and as a consequence
has been, is, or may be absent from the service member's home.
new text end

The court shall use a rebuttable presumption that upon request of either or both
parties, joint legal custody is in the best interests of the child. However, the court shall use
a rebuttable presumption that joint legal or physical custody is not in the best interests
of the child if domestic abuse, as defined in section 518B.01, has occurred between the
parents.

If the court awards joint legal or physical custody over the objection of a party, the
court shall make detailed findings on each of the factors in this subdivision and explain
how the factors led to its determination that joint custody would be in the best interests of
the child.

Sec. 5.

Minnesota Statutes 2006, section 518.175, is amended by adding a subdivision
to read:

new text begin Subd. 5a. new text end

new text begin Military status. new text end

new text begin If a parent is a service member, the court shall not
consider as a factor in determining parenting time of a child whether the service member
has been, is, or may be ordered into active military service in the United States armed
forces and as a consequence has been, is, or may be absent from the service member's
home.
new text end

Sec. 6.

Minnesota Statutes 2006, section 518.18, is amended to read:

518.18 MODIFICATION OF ORDER.

(a) Unless agreed to in writing by the parties, no motion to modify a custody order
or parenting plan may be made earlier than one year after the date of the entry of a decree
of dissolution or legal separation containing a provision dealing with custody, except in
accordance with paragraph (c).

(b) If a motion for modification has been heard, whether or not it was granted, unless
agreed to in writing by the parties no subsequent motion may be filed within two years
after disposition of the prior motion on its merits, except in accordance with paragraph (c).

(c) The time limitations prescribed in paragraphs (a) and (b) shall not prohibit a
motion to modify a custody order or parenting plan if the court finds that there is persistent
and willful denial or interference with parenting time, or has reason to believe that the
child's present environment may endanger the child's physical or emotional health or
impair the child's emotional development.

(d) If the court has jurisdiction to determine child custody matters, the court shall
not modify a prior custody order or a parenting plan provision which specifies the child's
primary residence unless it finds, upon the basis of facts, including unwarranted denial of,
or interference with, a duly established parenting time schedule, that have arisen since the
prior order or that were unknown to the court at the time of the prior order, that a change
has occurred in the circumstances of the child or the parties and that the modification is
necessary to serve the best interests of the child. In applying these standards the court
shall retain the custody arrangement or the parenting plan provision specifying the child's
primary residence that was established by the prior order unless:

(i) the court finds that a change in the custody arrangement or primary residence is in
the best interests of the child and the parties previously agreed, in a writing approved by a
court, to apply the best interests standard in section 518.17 or 257.025, as applicable; and,
with respect to agreements approved by a court on or after April 28, 2000, both parties
were represented by counsel when the agreement was approved or the court found the
parties were fully informed, the agreement was voluntary, and the parties were aware
of its implications;

(ii) both parties agree to the modification;

(iii) the child has been integrated into the family of the petitioner with the consent
of the other party;

(iv) the child's present environment endangers the child's physical or emotional
health or impairs the child's emotional development and the harm likely to be caused by a
change of environment is outweighed by the advantage of a change to the child; or

(v) the court has denied a request of the primary custodial parent to move the
residence of the child to another state, and the primary custodial parent has relocated
to another state despite the court's order.

In addition, a court may modify a custody order or parenting plan under section
631.52.

(e) In deciding whether to modify a prior joint custody order, the court shall apply
the standards set forth in paragraph (d) unless: (1) the parties agree in writing to the
application of a different standard, or (2) the party seeking the modification is asking the
court for permission to move the residence of the child to another state.

(f) If a parent has been granted sole physical custody of a minor and the child
subsequently lives with the other parent, and temporary sole physical custody has been
approved by the court or by a court-appointed referee, the court may suspend the obligor's
child support obligation pending the final custody determination. The court's order
denying the suspension of child support must include a written explanation of the reasons
why continuation of the child support obligation would be in the best interests of the child.

new text begin (g) In an action modifying a legal or physical custody order, if a party is a service
member, the court shall not consider as a factor in determining the legal or physical
custody of a child whether the service member has been, is, or may be ordered into active
military service in the Untied States armed forces and as a consequence has been, is, or
may be absent from the service member's home.
new text end

Sec. 7.

new text begin [518.181] REINSTATEMENT OF FORMER PHYSICAL CUSTODY
ORDER AND PARENT TIME PLAN.
new text end

new text begin If a party is a service member and the court modifies an order for physical custody
or a parenting time order or plan on the basis that the service member has been, is, or
will be ordered into active military service in the United States armed forces, the court
shall require in the order that the allocation of physical custody and, if applicable, the
parenting time order or plan that were in effect before the modification are reinstated
immediately upon the service member's release or discharge from active military service.
As a matter of law, this provision is a part of all orders issued on or before the effective
date of this section.
new text end

Sec. 8. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 7 are effective the day following final enactment and apply to orders
awarding or modifying legal or physical custody and orders awarding or modifying
parenting time granted before, on, or after that date.
new text end