Minnesota Legislature
HF 3564
as introduced - 89th Legislature (2015 - 2016) Posted on 03/24/2016 02:23pm
Current Version - as introduced
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A bill for an act
relating to civil law; amending the duties and responsibilities of guardian ad
litems in custody and dissolution proceedings; amending Minnesota Statutes
2014, section 518.165.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2014, section 518.165, is amended to read:
518.165 GUARDIANS AD LITEM FOR MINOR CHILDREN.
Subdivision 1.
Permissive appointment of guardian ad litem.
deleted text begin
In all proceedings
for child custody or for dissolution or legal separation where custody or parenting time
with a minor child is in issue, the court may appoint a guardian ad litem to represent the
interests of the child. The guardian ad litem shall advise the court with respect to custody
and parenting time.
deleted text end
new text begin
(a) In proceedings for child custody or for the dissolution or legal
separation where a child or parent has a disability as defined in section 363A.03, the
court may appoint a guardian ad litem to collect and provide the court relevant written
information obtained directly from the provider.
new text end
new text begin
(b) No appointment pursuant to this subdivision shall last longer than 180 days
unless the court makes a written finding determining that continuing the appointment is
necessary due to an ongoing disability concern. If an appointment is extended, it may only
be extended by 60-day increments, each supported by new specific findings.
new text end
new text begin
(c) Courts shall use the guardian ad litem appointment order form or template
provided by the guardian ad litem program. It shall include the parties and participants
involved, the children's names and dates of birth, and the reporting deadlines for the
guardian at litem. The report shall be written and timely filed. The appointment order
shall include the date of the expiration of appointment and the specific area of concern for
which the court is ordering the guardian ad litem to gather information.
new text end
Subd. 2.
Required appointment of guardian ad litem.
In all proceedings for child
custody or for marriage dissolution or legal separation in which custody or parenting time
with a minor child is an issue, if the court deleted text begin has reason to believe thatdeleted text end new text begin makes a prima facie
finding thatnew text end the minor child is a victim of domestic child abusenew text begin , endangerment,new text end or neglect,
as those terms are defined in sections 260C.007 and 626.556, respectively, the court shall
appoint a guardian ad litem. new text begin This family court guardian ad litem appointment does not
discharge the guardian ad litem's uninterrupted duty as a mandated reporter to child
protection services. new text end The guardian ad litem shall represent the interests of the child deleted text begin and
advise the court with respect to custody and parenting time. If the child is represented by a
guardian ad litem in any other pending proceeding, the court may appoint that guardian to
represent the child in the custody or parenting time proceedingdeleted text end . No guardian ad litem deleted text begin need
deleted text end new text begin willnew text end be appointed new text begin in family court new text end if the alleged domestic child abuse or neglect is before
the court on a juvenile dependency and neglect petition. Nothing in this subdivision
deleted text begin requiresdeleted text end new text begin allowsnew text end the court to appoint a new text begin family court new text end guardian ad litem in any proceeding for
child custody, marriage dissolution, or legal separation in which an allegation of domestic
child abuse or neglect has not been made.
new text begin
No appointment pursuant to this subdivision shall last longer than 180 days unless the
court makes a written finding determining that continuing the appointment is necessary due
to ongoing incidents of domestic child abuse, endangerment, or neglect. If an appointment
is extended, it may only be extended by 60-day increments, each supported by new
specific findings of ongoing incidents of domestic child abuse, endangerment, or neglect.
new text end
new text begin
Courts shall use the order form appointing the guardian ad litem provided by the
guardian ad litem program. It shall include the parties and participants involved, the
children's names and dates of birth, and the reporting deadlines for the guardian ad litem.
The report shall be written and timely filed. The court order must provide the date of the
expiration of appointment and the specific areas of concern which the court is ordering the
guardian ad litem to gather information on.
new text end
Subd. 2a.
Responsibilities of guardian ad litem.
A guardian ad litem shall carry
out the following responsibilities:
(1) conduct an independent investigation deleted text begin to determine the factsdeleted text end new text begin to gather information
and original documents or reports as allowed by the appointment order andnew text end relevant to the
deleted text begin situation of the child and the familydeleted text end new text begin child's safety and well-beingnew text end , which must include,
unless specifically excluded by the court, deleted text begin reviewingdeleted text end new text begin obtainingnew text end relevant documents; meeting
with and observing the child in the home setting and considering the child's wishes, as new text begin the
court deems new text end appropriate; and interviewing parents, caregivers, and others with knowledge
relevant to the casedeleted text begin ;deleted text end new text begin . The guardian ad litem shall only investigate and report to the court
regarding the specific issues or areas of concern identified by the court in the appointment
order. The guardian ad litem shall not be required to investigate and report to the court
regarding all the best interests of the child factors. If the guardian ad litem discovers areas
of concern related to the child's best interests beyond the scope of the appointment order, the
guardian ad litem may notify the parties and the court of the concern in writing. The parties
may request a hearing on the issue of expanding the appointment of the guardian ad litem;
new text end
(2) advocate for the child's best interests by deleted text begin participating in appropriate aspects of
deleted text end new text begin collecting relevant and credible information and reports innew text end the case and advocating for
appropriate community services when necessary;
(3) new text begin submit supporting documents and records with their report. That evidence must
become a part of the record and it must be available to the court, the parties or their
attorneys, and any appellate court. Confidential reports and medical records shall be
filed as confidential or sealed documents;
new text end
new text begin (4) new text end maintain the confidentiality of information related to a case, deleted text begin with the exception
of sharing information as permitted by law to promote cooperative solutions that are in
the best interests of the childdeleted text end new text begin pursuant to the guardian ad litem confidentiality policy
and as required by lawnew text end ;
deleted text begin
(4) monitor the child's best interests throughout the judicial proceeding; and
deleted text end
(5) new text begin relay professional reports to the court in their entirety without interpretation. A
guardian ad litem should not contradict or interpret the opinions of a licensed professional
unless the guardian ad litem is trained and licensed in the profession that generated the
report; and
new text end
new text begin (6) new text end present new text begin timely new text end written reports deleted text begin ondeleted text end new text begin reflectingnew text end the child's best interests deleted text begin that include
conclusionsdeleted text end and new text begin both the new text end recommendations and the deleted text begin factsdeleted text end new text begin direct information new text end upon which
they are based.
Subd. 3.
Fees.
(a) deleted text begin If a guardian ad litem is appointed on a fee basis,deleted text end The court shall
enter an order for costs, fees, and disbursements in favor of the child's guardian ad litem
new text begin for the services orderednew text end . The order may be made against either or both parties, except
that any part of the costs, fees, or disbursements which the court finds the parties are
incapable of paying shall be borne by the State Guardian Ad Litem Board. In no event
may the court order that costs, fees, or disbursements be paid by a party receiving public
assistance or legal assistance or by a party whose annual income falls below the poverty
line as established under United States Code, title 42, section 9902(2).
(b) In each fiscal year, the commissioner of management and budget shall deposit
guardian ad litem reimbursements in the special revenue fund and credit them to a
separate account with the State Guardian Ad Litem Board. The balance of this account is
appropriated to the State Guardian Ad Litem Board and does not cancel but is available
until expended. Revenue from this account must be spent in the judicial district in which
the reimbursement is collected.
Subd. 4.
Background study of guardian ad litem.
(a) The court shall initiate a
background study through the commissioner of human services under section 245C.32 on
every guardian ad litem appointed under this section if a background study has not been
completed on the guardian ad litem within the past three years. The background study must
be completed before the court appoints the guardian ad litem, unless the court determines
that it is in the best interest of the child to appoint a guardian ad litem before a background
study can be completed by the commissioner. The court shall initiate a subsequent
background study under this paragraph once every three years after the guardian has been
appointed as long as the individual continues to serve as a guardian ad litem.
(b) The background study must include criminal history data from the Bureau of
Criminal Apprehension, other criminal history data held by the commissioner of human
services, and data regarding whether the person has been a perpetrator of substantiated
maltreatment of a minor or a vulnerable adult. When the information from the Bureau
of Criminal Apprehension indicates that the subject of a study under paragraph (a) is a
multistate offender or that the subject's multistate offender status is undetermined, the
court shall require a search of the National Criminal Records Repository, and shall provide
the commissioner a set of classifiable fingerprints of the subject of the study.
(c) The Minnesota Supreme Court shall pay the commissioner a fee for conducting a
background study under section 245C.32.
(d) Nothing precludes the court from initiating background studies using court data
on criminal convictions.
Subd. 5.
Procedure, criminal history, and maltreatment records background
study.
(a) When the court requests a background study under subdivision 4, paragraph
(a), the request shall be submitted to the Department of Human Services through the
department's electronic online background study system.
(b) When the court requests a search of the National Criminal Records Repository,
the court must provide a set of classifiable fingerprints of the subject of the study on a
fingerprint card provided by the commissioner of human services.
(c) The commissioner of human services shall provide the court with criminal
history data as defined in section 13.87 from the Bureau of Criminal Apprehension in
the Department of Public Safety, other criminal history data held by the commissioner
of human services, and data regarding substantiated maltreatment of a minor under
section 626.556, and substantiated maltreatment of a vulnerable adult under section
626.557, within 15 working days of receipt of a request. If the subject of the study has
been determined by the Department of Human Services or the Department of Health
to be the perpetrator of substantiated maltreatment of a minor or vulnerable adult
in a licensed facility, the response must include a copy of the public portion of the
investigation memorandum under section 626.556, subdivision 10f, or the public portion
of the investigation memorandum under section 626.557, subdivision 12b. When the
background study shows that the subject has been determined by a county adult protection
or child protection agency to have been responsible for maltreatment, the court shall be
informed of the county, the date of the finding, and the nature of the maltreatment that
was substantiated. The commissioner shall provide the court with information from the
National Criminal Records Repository within three working days of the commissioner's
receipt of the data. When the commissioner finds no criminal history or substantiated
maltreatment on a background study subject, the commissioner shall make these results
available to the court electronically through the secure online background study system.
(d) Notwithstanding section 626.556, subdivision 10f, or 626.557, subdivision 12b,
if the commissioner or county lead agency or lead investigative agency has information
that a person on whom a background study was previously done under this section has
been determined to be a perpetrator of maltreatment of a minor or vulnerable adult, the
commissioner or the county may provide this information to the court that requested the
background study.
Subd. 6.
Rights.
The court shall notify the subject of a background study that the
subject has the following rights:
(1) the right to be informed that the court will request a background study on the
subject for the purpose of determining whether the person's appointment or continued
appointment is in the best interests of the child;
(2) the right to be informed of the results of the study and to obtain from the court a
copy of the results; and
(3) the right to challenge the accuracy and completeness of the information
contained in the results to the agency responsible for creation of the data except to the
extent precluded by section 256.045, subdivision 3.
new text begin Subd. 7. new text end
new text begin Limitations of guardian ad litem roles. new text end
new text begin
Guardian ad litems shall not be
ordered to, and shall not perform, the following roles in a case in which the person serves
as a guardian ad litem:
new text end
new text begin
(1) custody evaluator pursuant to section 518.167;
new text end
new text begin
(2) parenting time evaluator;
new text end
new text begin
(3) parenting time consultant;
new text end
new text begin
(4) family group decision-making facilitator;
new text end
new text begin
(5) early neutral evaluator;
new text end
new text begin
(6) mediator, as that role is prescribed in section 518.619, and Rule 310 of the
General Rules of Practice for the District Courts;
new text end
new text begin
(7) arbitrator or individual authorized to decide disputes between parties;
new text end
new text begin
(8) parenting time expeditor, as that role is prescribed in section 518.1751;
new text end
new text begin
(9) substitute decision-maker under section 253B.092;
new text end
new text begin
(10) evaluator charged with conducting a home study under section 245A.035 or
259.41;
new text end
new text begin
(11) case manager; or
new text end
new text begin
(12) attorney for the child.
new text end
new text begin Subd. 8. new text end
new text begin Limitations of guardian ad litem duties. new text end
new text begin
(a) Guardian ad litems shall not
be ordered to, and shall not perform, the following duties in a case in which the person
serves as a guardian ad litem:
new text end
new text begin
(1) make any decisions outside the purview of the court;
new text end
new text begin
(2) provide counseling or therapy to a child or parent;
new text end
new text begin
(3) provide mental health diagnosis, prognosis, or treatment planning;
new text end
new text begin
(4) provide psychological guidance to the court other than recommendations for
evaluations;
new text end
new text begin
(5) render an expert opinion in opposition to a licensed professional without the
appropriate licensure;
new text end
new text begin
(6) determine the effectiveness of a licensed professional without the appropriate
licensure to evaluate and measure the professional's effectiveness;
new text end
new text begin
(7) provide formal recommendations for specific providers or businesses;
new text end
new text begin
(8) provide collateral information to professionals;
new text end
new text begin
(9) provide case background to child protective services other than a mandated report;
new text end
new text begin
(10) participate in child protective services investigation or screening;
new text end
new text begin
(11) provide courtroom recommendations that differ from the guardian ad litem
formal report filed with the court. A guardian ad litem must file a timely supplemental
report to accommodate new information;
new text end
new text begin
(12) foster a friendship with a child or parent by inviting the child or parent into
the home of the guardian ad litem, routinely entertaining the child or parent, or giving
money or gifts to the child or parent;
new text end
new text begin
(13) give legal advice or hire an attorney for the child or parent;
new text end
new text begin
(14) supervise visits between the child and parent or third parties;
new text end
new text begin
(15) provide child care services for the child;
new text end
new text begin
(16) make placement arrangements for the child or remove a child from the home;
new text end
new text begin
(17) serve as a message service between parents for communication;
new text end
new text begin
(18) transport the children; or
new text end
new text begin
(19) provide guidance or recommendations to the court regarding any financial
matters.
new text end
new text begin
(b) Nothing in this subdivision precludes, by party agreement, provider
recommendations when done in an informal matter.
new text end
new text begin Subd. 9. new text end
new text begin Remedy of overly broad orders. new text end
new text begin
The guardian ad litem or the guardian ad
litem district court manager must immediately notify the court and the parties in writing
or on the record when an appointment order includes duties or roles that extend beyond
the statutory authority of a guardian ad litem. An order that is overly expansive does not
empower or authorize a guardian ad litem to perform outside the statutorily defined roles
or to perform roles or duties otherwise prohibited.
new text end
new text begin Subd. 10. new text end
new text begin Notification of misconduct. new text end
new text begin
A guardian ad litem district court manager
shall promptly notify the court and the parties in writing with detailed findings of guardian
ad litem misconduct and the nature of the misconduct.
new text end