HF 2860

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to family law; modifying the standard for removal of a child's residence
from the state; creating a presumption of joint physical custody; requiring the
use of parenting plans in certain cases; specifying terminology in absence of
designations in parenting plans; modifying timelines for hearing requirements
in certain order for protection proceedings; amending Minnesota Statutes
2004, sections 518.003, subdivision 3; 518.17, subdivisions 1, 2; 518.1705,
subdivisions 3, 4; 518.175, subdivision 3; 518.18; 518B.01, subdivision 5;
repealing Minnesota Statutes 2004, section 518.1705, subdivision 7.

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

Section 1.

Minnesota Statutes 2004, 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 Joint physical custody does not
require an equal or nearly equal division of time between the parties.
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.

Minnesota Statutes 2004, 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. new text begin
The court must make detailed findings regarding the rationale for a deviation from the
rebuttable presumptions in subdivision 2.
new text end

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

Sec. 3.

Minnesota Statutes 2004, section 518.17, subdivision 2, is amended to read:

Subd. 2.

deleted text begin Factors when joint custody is sought deleted text end new text begin Rebuttable presumptions in
child custody disputes new text end .

deleted text begin 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:
deleted text end

deleted text begin (a) the ability of parents to cooperate in the rearing of their children;
deleted text end

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

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

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

deleted text begin 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,
deleted text end

new text begin (a) The court shall use a rebuttable presumption that joint legal and physical custody
is in the best interests of the child.
new text end

new text begin (b) If the court determines that joint legal and physical custody is not feasible even
with provisions in the judgment and decree to resolve disputes between the parents, the
court shall use a rebuttable presumption that the best interests of the child will be served
by granting legal and physical custody to the parent more disposed to encourage and
permit frequent and continuing contact with the child by the other parent.
new text end

new text begin (c) Notwithstanding paragraph (a) or (b), new text end 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 new text begin or by a parent
against the child who is the subject of the matter before the court new text end .

deleted text begin 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.
deleted text end

Sec. 4.

Minnesota Statutes 2004, section 518.1705, subdivision 3, is amended to read:

Subd. 3.

Creating parenting plan; restrictions on creation; alternative.

(a)
deleted text begin Upon the request of both parents, a parenting plan must be created in lieu of an order for
child custody and parenting time deleted text end new text begin The court shall adopt a parenting plan proposed by
both parents new text end unless the court makes detailed findings that the proposed plan is not in the
best interests of the child.

(b) If both parents do not agree to a parenting plan, the court deleted text begin may deleted text end new text begin shall new text end create one on
its own motion deleted text begin , except that the court must not do so if it deleted text end new text begin unless the court:
new text end

new text begin (1) makes detailed findings that use of a parenting plan is not feasible; or
new text end

new text begin (2) new text end finds that a parent has committed domestic abuse against a parent or child who is
a party to, or subject of, the matter before the court. If the court creates a parenting plan
on its own motion, it must not use alternative terminology unless the terminology is
agreed to by the parties.

new text begin new text end

(c) If an existing order does not contain a parenting plan, the parents must not be
required to create a parenting plan as part of a modification order under section 518.64.

(d) A parenting plan must not be required during an action under section 256.87.

(e) If the parents do not agree to a parenting plan and the court does not create one
on its own motion, orders for custody and parenting time must be entered under sections
518.17 and 518.175 or section 257.541, as applicable.

Sec. 5.

Minnesota Statutes 2004, section 518.1705, subdivision 4, is amended to read:

Subd. 4.

Custody designation.

deleted text begin A final judgment and decree that includes a
parenting plan using alternate terms to designate decision-making responsibilities or
allocation of residential time between the parents must designate whether the parents have
joint legal custody or joint physical custody or which parent has sole legal custody or sole
physical custody, or both. This designation is solely for enforcement of the final judgment
and decree where this designation is required for that enforcement and has no effect
under the laws of this state, any other state, or another country that do not require this
designation. deleted text end new text begin If the parenting plan substitutes other terms for legal and physical custody
and if a designation of legal and physical custody is necessary for enforcement of the
judgment and decree in another jurisdiction, it must be deemed solely for that purpose
that the parents have joint legal and joint physical custody.
new text end

Sec. 6.

Minnesota Statutes 2004, section 518.175, subdivision 3, is amended to read:

Subd. 3.

Move to another state.

new text begin (a) new text end The parent with whom the child resides shall
not move the residence of the child to another state except upon order of the court or
with the consent of the other parent, if the other parent has been given parenting time by
the decree. If the purpose of the move is to interfere with parenting time given to the
other parent by the decree, the court shall not permit the child's residence to be moved to
another state.

new text begin (b) The court shall apply a best interests standard when considering the request of
the parent with whom the child resides to move the child's residence to another state.
The factors the court must consider in determining the child's best interests include, but
are not limited to:
new text end

new text begin (1) the nature, quality, extent of involvement, and duration of the child's relationship
with the person proposing to relocate and with the nonrelocating person, siblings, and
other significant persons in the child's life;
new text end

new text begin (2) the age, developmental stage, needs of the child, and the likely impact the
relocation will have on the child's physical, educational, and emotional development,
taking into consideration any special needs of the child;
new text end

new text begin (3) the feasibility of preserving the relationship between the nonrelocating person
and the child through suitable parenting time arrangements, considering the logistics
and financial circumstances of the parties;
new text end

new text begin (4) the child's preference, taking into consideration the age and maturity of the child;
new text end

new text begin (5) whether there is an established pattern of conduct of the person seeking the
relocation either to promote or thwart the relationship of the child and the nonrelocating
person;
new text end

new text begin (6) whether the relocation of the child will enhance the general quality of life for
both the custodial parent seeking the relocation and the child including, but not limited to,
financial or emotional benefit or educational opportunity;
new text end

new text begin (7) the reasons of each person for seeking or opposing the relocation; and
new text end

new text begin (8) the effect on the safety and welfare of the child, or of the parent requesting to
move the child's residence, of domestic abuse, as defined in section 518B.01.
new text end

new text begin (c) The burden of proof is upon the parent requesting to move the residence of the
child to another state, except that if the court finds that the person requesting permission
to move has been a victim of domestic abuse by the other parent, the burden of proof is
upon the parent opposing the move. The court must consider all of the factors in this
subdivision in determining the best interests of the child.
new text end

new text begin (d) The parents may agree to a legal standard that will govern a decision concerning
removal of a child's residence from this state that is different from the standard in this
subdivision, provided that:
new text end

new text begin (1) both parents were represented by counsel when the agreement was approved; or
new text end

new text begin (2) the court finds that the parents were fully informed of the implications of the
agreement and the agreement was voluntary.
new text end

Sec. 7.

Minnesota Statutes 2004, 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 deleted text begin 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 deleted text end new text begin
pursuant to section 518.175, subdivision 3, or pursuant to a written agreement of the
parties approved by the court to apply the best interests standard of section 257.025 or
518.17 new text end ; 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; deleted text begin or
deleted text end

(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 deleted text begin . deleted text end new text begin ; or
new text end

new text begin (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 with
the child to another state despite the order of the court.
new text end

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.

Sec. 8.

Minnesota Statutes 2004, section 518B.01, subdivision 5, is amended to read:

Subd. 5.

Hearing on application; notice.

(a) Upon receipt of the petition, the court
shall order a hearing which shall be held not later than 14 days from the date of the order
for hearing unless an ex parte order is issued.

(b) If an ex parte order has been issued under subdivision 7 and the petitioner seeks
only the relief under subdivision 7, paragraph (a), a hearing is not required unless:

(1) the court declines to order the requested relief; or

(2) one of the parties requests a hearing.

(c) If an ex parte order has been issued under subdivision 7 and the petitioner
seeks relief beyond that specified in subdivision 7, paragraph (a), or if the court declines
to order relief requested by the petitioner, a hearing must be held within seven days.
Personal service of the ex parte order may be made upon the respondent at any time up
to deleted text begin 12 deleted text end new text begin 24 new text end hours prior to the time set for the hearing, provided that the respondent at the
hearing may request a continuance of up to deleted text begin five deleted text end new text begin 30 new text end days deleted text begin if served fewer than five days
prior to the hearing deleted text end new text begin , new text end which deleted text begin continuance shall deleted text end new text begin must new text end be granted unless there are compelling
reasons not to.

(d) If an ex parte order has been issued only granting relief under subdivision 7,
paragraph (a), and the respondent requests a hearing, the hearing shall be held within ten
days of the court's receipt of the respondent's request. Service of the notice of hearing
must be made upon the petitioner not less than five days prior to the hearing. The court
shall serve the notice of hearing upon the petitioner by mail in the manner provided in
the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and
shall also mail notice of the date and time of the hearing to the respondent. deleted text begin In the event
that service cannot be completed in time to give the respondent or petitioner the minimum
notice required under this subdivision, the court may set a new hearing date no more
than five days later.
deleted text end

(e) If for good cause shown either party is unable to proceed at the initial hearing
and new text begin prior to or at the hearing new text end requests a continuance and the court finds that a continuance
is appropriate, the hearing may be continued. Unless otherwise agreed by the parties and
approved by the court, the continuance shall be for no more than deleted text begin five deleted text end new text begin 30 new text end days. If the court
grants the requested continuance, the court shall also issue a written order continuing all
provisions of the ex parte order pending the issuance of an order after the hearing.

(f) Notwithstanding the preceding provisions of this subdivision, service on the
respondent may be made by one week published notice, as provided under section 645.11,
provided the petitioner files with the court an affidavit stating that an attempt at personal
service made by a sheriff or other law enforcement or corrections officer was unsuccessful
because the respondent is avoiding service by concealment or otherwise, and that a copy
of the petition and notice of hearing has been mailed to the respondent at the respondent's
residence or that the residence is not known to the petitioner. Service under this paragraph
is complete seven days after publication. The court shall set a new hearing date if necessary
to allow the respondent the five-day minimum notice required under paragraph (d).

Sec. 9. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2004, section 518.1705, subdivision 7, new text end new text begin is repealed.
new text end