HF 2902

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

A bill for an act
relating to child custody; establishing a presumption in favor of joint physical
custody in custody disputes between parents; amending Minnesota Statutes 2004,
sections 257.025; 518.17, subdivision 3, by adding a subdivision; repealing
Minnesota Statutes 2004, section 518.17, subdivision 2.

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

Section 1.

Minnesota Statutes 2004, section 257.025, is amended to read:

257.025 CUSTODY DISPUTES.

new text begin Subdivision 1. new text end

new text begin Best interest factors. new text end

(a) In any proceeding where two or more
parties seek custody of a child the court shall consider and evaluate all relevant factors in
determining the best interests of the child, including the following factors:

(1) the wishes of the party or parties 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 party and the child;

(5) the interaction and interrelationship of the child with a party or parties, 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, religion, or
creed, if any;

(11) the child's cultural background; and

(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 the parties.

The court may not use one factor to the exclusion of all others. 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 fact that the parents of the child are not or were never married to each other
shall not be determinative of the custody of the child.

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

(d) The court shall consider evidence of a violation of section 609.507 in determining
the best interests of the child.

(e) A person may seek custody of a child by filing a petition or motion pursuant
to section 518.156.

deleted text begin (f) Section 518.619 applies to this section.
deleted text end

new text begin Subd. 2. new text end

new text begin Presumption of joint custody. new text end

new text begin (a) Unless sole legal or physical custody,
or both, is agreed to in writing by both parties, the court shall preserve the rights of both
parents to the legal and physical custody of their child in every case, except as provided in
paragraph (b).
new text end

new text begin (b) The court may order sole legal or physical custody to a party over the objection
of a parent only upon a showing, by clear and convincing evidence, that:
new text end

new text begin (1) preserving the objecting parent??a??a??s custodial rights or making an award of joint
legal and physical custody endangers the child??a??a??s physical or emotional health or will
impair the child??a??a??s emotional development;
new text end

new text begin (2) the harm likely to be caused by an award of sole legal or physical custody is
outweighed by the advantage to the child of the award; and
new text end

new text begin (3) an award of sole legal or physical custody, or both, is necessary to serve the
best interests of the child.
new text end

new text begin (c) In any case in which a court orders sole legal or physical custody of a child over
the objection of a parent of the child, the court shall make detailed findings on each of
the factors in paragraph (b), and each of the factors in subdivision 1 and explain how the
factors led to its determination that sole legal or physical custody, or both, is necessary to
serve the best interests of the child.
new text end

new text begin Subd. 3. new text end

new text begin Mediation. new text end

new text begin The mediation requirements of section 518.619 apply to
this section.
new text end

Sec. 2.

Minnesota Statutes 2004, section 518.17, is amended by adding a subdivision
to read:

new text begin Subd. 2a. new text end

new text begin Presumption of joint custody. new text end

new text begin (a) Unless sole legal or physical custody,
or both, is agreed to in writing by both parties, the court shall preserve the rights of both
parents to the legal and physical custody of their child in every case, except as provided in
paragraph (b).
new text end

new text begin (b) The court may order sole legal or physical custody to a party over the objection
of a parent only upon a showing, by clear and convincing evidence, that:
new text end

new text begin (1) preserving the objecting parent??a??a??s custodial rights or making an award of joint
legal and physical custody endangers the child??a??a??s physical or emotional health or will
impair the child??a??a??s emotional development;
new text end

new text begin (2) the harm likely to be caused by an award of sole legal or physical custody is
outweighed by the advantage to the child of the award; and
new text end

new text begin (3) an award of sole legal or physical custody, or both, is necessary to serve the
best interests of the child.
new text end

new text begin (c) In any case in which a court orders sole legal or physical custody of a child over
the objection of a parent of the child, the court shall make detailed findings on each of
the factors in paragraph (b), and each of the factors in subdivision 1 and explain how the
factors led to its determination that sole legal or physical custody, or both, is necessary to
serve the best interests of the child.
new text end

Sec. 3.

Minnesota Statutes 2004, section 518.17, subdivision 3, is amended to read:

Subd. 3.

Custody order.

(a) Upon adjudging the nullity of a marriage, or in a
dissolution or separation proceeding, or in a child custody proceeding, the court shall
make such further order as it deems just and proper concerning:

(1) the legal custody of the minor children of the parties which shall be sole or joint;

(2) their physical custody deleted text begin and residence deleted text end new text begin , which shall be sole or joint new text end ; and

(3) their support. In determining custody, the court shall consider the best interests of
each child new text begin and, in those cases where they are applicable, the factors set out in subdivision
2a, new text end and shall not prefer one parent over the other solely on the basis of the sex of the parent.

(b) The court shall grant the following rights to each of the parties, unless specific
findings are made under section 518.68, subdivision 1. Each party has the right of access
to, and to receive copies of, school, medical, dental, religious training, and other important
records and information about the minor children. Each party has the right of access to
information regarding health or dental insurance available to the minor children. Each
party shall keep the other party informed as to the name and address of the school of
attendance of the minor children. Each party has the right to be informed by school
officials about the children's welfare, educational progress and status, and to attend school
and parent-teacher conferences. The school is not required to hold a separate conference
for each party. In case of an accident or serious illness of a minor child, each party shall
notify the other party of the accident or illness, and the name of the health care provider
and the place of treatment. Each party has the right to reasonable access and telephone
contact with the minor children. The court may waive any of the rights under this section
if it finds it is necessary to protect the deleted text begin welfare deleted text end new text begin safety or health new text end of a party or child.

Sec. 4. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2004, section 518.17, subdivision 2, new text end new text begin is repealed.
new text end

Sec. 5. new text begin EFFECTIVE DATE.
new text end

new text begin This act is effective the day following final enactment.
new text end