HF 4573

as introduced - 93rd Legislature (2023 - 2024) Posted on 03/07/2024 04:46pm

A bill for an act
relating to family law; requiring a court to consider allegations against a parent of
domestic abuse or child abuse in dissolution, child custody, and parenting time
proceedings; amending Minnesota Statutes 2022, sections 518.165, by adding a
subdivision; 518.17, subdivisions 1, 3, by adding subdivisions; 518.175,
subdivisions 1, 1a, 5.

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

Section 1.

Minnesota Statutes 2022, section 518.165, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Training. new text end

new text begin A court appointing a guardian ad litem under subdivision 2 in a
proceeding for child custody, marriage dissolution, or legal separation where custody or
parenting time with a minor child is an issue shall make reasonable efforts to appoint a
guardian ad litem who received evidence-based education and training relating to domestic
abuse, child abuse, including child sexual abuse, and the effects of child abuse and domestic
abuse on children.
new text end

Sec. 2.

Minnesota Statutes 2022, section 518.17, subdivision 1, is amended to read:

Subdivision 1.

Best interests of the child.

(a) In evaluating the best interests of the child
for purposes of determining issues of custody and parenting time, the court must consider
and evaluate all relevant factors, including:

(1) a child's physical, emotional, cultural, spiritual, and other needs, and the effect of
the proposed arrangements on the child's needs and development;

(2) any special medical, mental health, developmental disability, or educational needs
that the child may have that may require special parenting arrangements or access to
recommended services;

(3) the reasonable preference of the child new text begin based on the child's developmental stage,
maturity, and judgment new text end , if the court deems the child to be of sufficient ability, age, and
maturity to express an independent, reliable preference new text begin . In assessing this factor, if the court
finds that the child's fear of a parent or party is based on the parent's or party's actual and
specific conduct that is contrary to the child's best interests, the court must weigh this factor
heavily in determining the custody of the child and parenting time with the child new text end ;

(4) whether domestic abuse, as defined in section 518B.01, new text begin or child abuse new text end has occurred
in the parents' or either parent's household or relationship; the nature and context of the
domestic abuse new text begin or child abuse new text end ; and the implications of the domestic abuse new text begin or child abuse new text end
for parenting and for the child's safety, well-being, and developmental needs;

(5) any physical, mental, or chemical health issue of a parent that affects the child's
safety or developmental needs;

(6) the history and nature of each parent's participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to
meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time;

(8) new text begin the need for stability and continuity in the child's home, school, and community and
new text end the effect on the child's well-being and development of changes to home, school, and
community new text begin , except if changes are necessary to protect the health or safety of the child or a
party new text end ;

(9) the effect of the proposed arrangements on the ongoing relationships between the
child and each parent, siblings, and other significant persons in the child's life;

(10) the benefit to the child in maximizing parenting time with both parents and the
detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred,
the disposition of each parent to support the child's relationship with the other parent and
to encourage and permit frequent and continuing contact between the child and the other
parent; deleted text begin and
deleted text end

(12) the willingness and ability of parents to cooperate in the rearing of their child; to
maximize sharing information and minimize exposure of the child to parental conflict; and
to utilize methods for resolving disputes regarding any major decision concerning the life
of the child deleted text begin . deleted text end new text begin ; and
new text end

new text begin (13) the attempts of a parent or party to turn the child against the other party or parent,
except in cases of domestic abuse where reasonable safety measures are necessary to protect
the health or safety of the child. A parent's or party's reasonable efforts to protect the child
shall not be considered to be attempts to turn the child against the other parent or party. A
child's deficient or negative relationship with a parent or party shall not be presumed to be
caused by the other party.
new text end

new text begin (b) If the court finds that a parent or party has limited parenting time with the other
parent under paragraph (a), clause (10); failed to support the child's relationship with the
other parent or party under paragraph (a), clause (11); or failed to cooperate with the other
parent or party in rearing their child under paragraph (a), clause (12), the court shall not
adversely weigh this factor against a parent or party if the circumstances were in response
to abuse or necessary to protect the child or an abused household member from harm.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end Clauses (1) to (9) govern the application of the best interests of the child factors
by the court:

(1) The court must make detailed findings on each of the factors in paragraph (a) based
on the evidence presented and explain how each factor led to its conclusions and to the
determination of custody and parenting time. The court may not use one factor to the
exclusion of all others, and the court shall consider that the factors may be interrelated.

(2) The court shall consider that it is in the best interests of the child to promote the
child's healthy growth and development through safe, stable, nurturing relationships between
a child and both parents.

(3) The court shall consider both parents as having the capacity to develop and sustain
nurturing relationships with their children unless there are substantial reasons to believe
otherwise. In assessing whether parents are capable of sustaining nurturing relationships
with their children, the court shall recognize that there are many ways that parents can
respond to a child's needs with sensitivity and provide the child love and guidance, and
these may differ between parents and among cultures.

(4) The court shall not consider conduct of a party that does not affect the party's
relationship with the child new text begin , unless the party is alleged to have committed domestic abuse
against a household member or child abuse against any child. In cases where a parent is
alleged to have committed domestic abuse against a household member or child abuse
against a child, the court must make a finding by a preponderance of the evidence whether
or not the parent committed domestic abuse or child abuse. If the court finds that the parent
committed domestic abuse or child abuse, the court must first consider and weigh the
allegations of domestic abuse or child abuse before considering any other best interest
factors new text end .

(5) Disability alone, as defined in section 363A.03, of a proposed custodian or the child
shall not be determinative of the custody of the child.

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

(7) There is no presumption for or against joint physical custody, except as provided in
clause (9).

(8) Joint physical custody does not require an absolutely equal division of time.

(9) 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 custody or joint physical custody is not in the best
interests of the child if new text begin a parent is alleged to have committed new text end domestic abuse, as defined in
section 518B.01, deleted text begin has occurred between the parents deleted text end new text begin against a household member or child
abuse against any child and the court finds by a preponderance of the evidence that the
parent committed domestic abuse against the household member or child abuse against any
child new text end . In determining whether the presumption is rebutted, the court shall consider the nature
and context of the domestic abuse new text begin or child abuse new text end and the implications of the domestic abuse new text begin
or child abuse new text end for parenting and for the child's safety, well-being, and developmental needs.
Disagreement alone over whether to grant sole or joint custody does not constitute an
inability of parents to cooperate in the rearing of their children as referenced in paragraph
(a), clause (12).

deleted text begin (c) deleted text end new text begin (d) new text end In a proceeding involving the custodial responsibility of a service member's child,
a court may not consider only a parent's past deployment or possible future deployment in
determining the best interests of the child. For purposes of this paragraph, "custodial
responsibility" has the meaning given in section 518E.102, paragraph (f).

Sec. 3.

Minnesota Statutes 2022, 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 and residence; and

(3) their support. In determining custody, the court shall consider the best interests of
each child and shall not prefer one parent over the other solely on the basis of the sex of the
parent.

new text begin (b) In cases where a parent is alleged to have committed an act of domestic abuse against
a household member or child abuse against any child, the court must make a finding by a
preponderance of the evidence whether or not the parent committed domestic abuse or child
abuse. If the court finds that the parent committed domestic abuse against a household
member or child abuse against any child, the court must consider whether there is an ongoing
risk of abuse to the subject child. There is a rebuttable presumption that the court shall
suspend a party's parenting time or shall only allow supervised parenting time for a party
who poses a risk of abuse to the child. A court must find that a maltreatment finding under
chapter 260E is sufficient evidence for a finding of child abuse under this paragraph.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end The court shall grant the rights listed in subdivision 3a to each of the parties,
regardless of custodial designation, unless specific findings are made under section 518.68,
subdivision 1. The court shall include in the custody order the notice under subdivision 3a.

deleted text begin (c) deleted text end new text begin (d) new text end The court may waive any of the rights under this section if it finds it is necessary
to protect the welfare of a party or child. new text begin If the court finds that a party or parent has a history
of committing child abuse of a child or domestic abuse of a household member, or if the
court finds that a party or parent poses a present risk of harm to the child or a household
member and awards any form of custody or visitation to the party or parent who committed
the abuse, the court must order safety conditions, such as supervised parenting time, to
protect the child or household member.
new text end

new text begin (e) If a court orders supervised parenting time or other safety conditions for a party or
parent's visits with the child, the custody order must include:
new text end

new text begin (1) the court's reason for ordering supervised parenting time with the child or imposing
safety conditions; and
new text end

new text begin (2) the court's explanation of why supervised parenting time with the party or parent are
in the best interests of the child.
new text end

new text begin (f) If the court orders a parent or party to only have supervised parenting time with the
child, the court must continue to review the risk of harm to the child and need for supervised
parenting time on an annual basis.
new text end

deleted text begin (d) deleted text end new text begin (g) new text end If a court order or law prohibits contact by a party, the notifications and
information required to be sent under subdivision 3a, clauses (1), (2), (3), (5), and (6), shall
not be made by direct communication of the parties. Third-party communication shall be
limited to the specific purposes delineated in this subdivision or subdivision 3a. Nothing in
this subdivision or subdivision 3a shall modify, suspend, revoke, or terminate a court order
or law that prohibits contact by a party.

deleted text begin (e) deleted text end new text begin (h) new text end If one of the parties is a program participant under chapter 5B, the other party
shall send all information and notifications required under subdivision 3a, clauses (1), (2),
(3), (5), and (6), to the participant's designated address. The program participant is exempted
from the requirements of subdivision 3a.

deleted text begin (f) deleted text end new text begin (i) new text end Failure to notify or inform a party of rights under subdivision 3a does not form a
basis for modification under section 518.18, paragraph (d), clause (iv), unless other grounds
are alleged which would support a modification.

Sec. 4.

Minnesota Statutes 2022, section 518.17, is amended by adding a subdivision to
read:

new text begin Subd. 7. new text end

new text begin Custody and parenting time; health and safety of the child. new text end

new text begin (a)
Notwithstanding any other provision of law to the contrary, a court making a determination
based on the best interests of a child pursuant to this chapter shall prioritize and promote
the child's health and safety when making this determination. A court must promote the
safety of a child, including preventing direct physical or emotional harm to the child.
new text end

new text begin (b) Prior to issuing any custody or parenting time order, the court must determine the
child's safety by considering all relevant factors and by giving weighted consideration to
all factors that affect the health and safety of the child, including but not limited to:
new text end

new text begin (1) whether either parent or party is more likely to ensure the protection of the child's
health and safety. There is a rebuttable presumption that the court must not award the child's
custody or unsupervised parenting time to a parent or party who jeopardizes the health or
safety of the child;
new text end

new text begin (2) the child's need for stability and continuity in the child's education, family life, and
community life, except if changes are necessary to protect the health or safety of the child
or a parent or party;
new text end

new text begin (3) whether either parent or party jeopardizes the health or safety of the child by placing
the child at substantial risk of abuse;
new text end

new text begin (4) whether a parent or a party has committed domestic abuse against a household
member, including past or current orders for protection where there was a finding of abuse;
new text end

new text begin (5) whether either parent or party has committed an act of child abuse against any child;
new text end

new text begin (6) whether either parent or party is better able or more likely to meet the child's daily
physical, emotional, developmental, educational, and special needs; and
new text end

new text begin (7) the existence of an order for protection with no finding of domestic abuse or child
abuse if, upon reviewing the facts presented at the custody hearing, the court finds that
domestic abuse or child abuse occurred.
new text end

new text begin (c) A court must not presume that a child's deficient or negative relationship with a
parent was caused by the other parent. A court must not separate a child from a parent or
party who is the child's primary attachment figure for the purpose of improving a deficient
relationship with another parent or party.
new text end

new text begin (d) In cases in which the court has found that a household member is the victim of
domestic abuse or in which child abuse has occurred or is occurring:
new text end

new text begin (1) the court shall not base decisions on a legal presumption of shared parenting; and
new text end

new text begin (2) all costs, including attorney and expert fees, incurred by the nonoffending parent
and the child shall be paid by the parent whom the court has found to have committed child
abuse or domestic abuse, unless the offending parent has insufficient means to pay the costs.
new text end

Sec. 5.

Minnesota Statutes 2022, section 518.17, is amended by adding a subdivision to
read:

new text begin Subd. 8. new text end

new text begin Training required. new text end

new text begin (a) Before a judge or magistrate handles child custody or
parenting time proceedings in which a party or parent is alleged to have committed domestic
abuse against a household member or child abuse against a child, the judge or magistrate
must complete at least 20 hours of training on handling domestic abuse and child abuse
cases. The training must include but is not limited to:
new text end

new text begin (1) training about the maltreatment of children under chapter 260E;
new text end

new text begin (2) training about sexual abuse of children under chapter 260E;
new text end

new text begin (3) training about physical abuse of children under chapter 260E;
new text end

new text begin (4) training about implicit and explicit bias;
new text end

new text begin (5) training about trauma and child neglect; and
new text end

new text begin (6) training about the impact of child abuse and domestic violence on children.
new text end

new text begin (b) The training under paragraph (a) shall include the latest best practices from
evidence-based, peer-reviewed research by recognized experts in the types of child abuse
specified under paragraph (a).
new text end

new text begin (c) District courts shall offer training under this paragraph to court personnel, including
guardian ad litems, on the impact of child abuse, domestic abuse, and trauma on a child
victim and situations in which a party attempts to turn a child against another party.
new text end

Sec. 6.

Minnesota Statutes 2022, section 518.175, subdivision 1, is amended to read:

Subdivision 1.

General.

(a) In all proceedings for dissolution or legal separation,
subsequent to the commencement of the proceeding and continuing thereafter during the
minority of the child, the court shall, upon the request of either parent, grant such parenting
time on behalf of the child and a parent as will enable the child and the parent to maintain
a child to parent relationship that will be in the best interests of the child new text begin except when a
parent is alleged to have committed domestic abuse against a household member or child
abuse against any child. If a parent is alleged to have committed domestic abuse against a
household member or child abuse against any child, the court must make a finding by a
preponderance of the evidence whether or not the parent committed an act of domestic abuse
or child abuse. If the court finds that the parent committed an act of domestic abuse or child
abuse, the court must first weigh and consider the allegations of domestic abuse or child
abuse before considering any other best interest factors new text end . The court, when issuing a parenting
time order, may reserve a determination as to the future establishment or expansion of a
parent's parenting time. In that event, the best interest standard set forth in subdivision 5,
paragraph (a), shall be applied to a subsequent motion to establish or expand parenting time.

(b) If the court finds, after a hearing, that parenting time with a parent is likely to endanger
the child's physical or emotional health or impair the child's emotional development, the
court shall restrict parenting time with that parent as to time, place, duration, or supervision
and may deny parenting time entirely, as the circumstances warrant. new text begin If the court awards
custody or grants parenting time to a party after finding that: (1) the party has a history of
domestic abuse of a household member or child abuse of any child; or (2) the party poses
a present risk of harm to a child or household member, the court must order safety conditions,
such as supervised parenting time and limitations on the time of day or maximum number
of hours that parenting time takes place. new text end The court shall consider the age of the child and
the child's relationship with the parent prior to the commencement of the proceeding.

(c) A parent's failure to pay support because of the parent's inability to do so shall not
be sufficient cause for denial of parenting time.

(d) The court may provide that a law enforcement officer or other appropriate person
will accompany a party seeking to enforce or comply with parenting time.

(e) Upon request of either party, to the extent practicable an order for parenting time
must include a specific schedule for parenting time, including the frequency and duration
of visitation and visitation during holidays and vacations, unless parenting time is restricted,
denied, or reserved.

(f) The court administrator shall provide a form for a pro se motion regarding parenting
time disputes, which includes provisions for indicating the relief requested, an affidavit in
which the party may state the facts of the dispute, and a brief description of the parenting
time expeditor process under section 518.1751. The form may not include a request for a
change of custody. The court shall provide instructions on serving and filing the motion.

(g) In the absence of other evidence, there is a rebuttable presumption that a parent is
entitled to receive a minimum of 25 percent of the parenting time for the child. For purposes
of this paragraph, the percentage of parenting time may be determined by calculating the
number of overnights that a child spends with a parent or by using a method other than
overnights if the parent has significant time periods on separate days when the child is in
the parent's physical custody but does not stay overnight. The court may consider the age
of the child in determining whether a child is with a parent for a significant period of time.

Sec. 7.

Minnesota Statutes 2022, section 518.175, subdivision 1a, is amended to read:

Subd. 1a.

Domestic abuse; new text begin child abuse; new text end supervised parenting time.

(a) If a parent
requests supervised parenting time under subdivision 1 or 5 and an order for protection
under chapter 518B or a similar law of another state is in effect against the other parent to
protect the parent with whom the child resides or the child, the judge or judicial officer must
consider the order for protection in making a decision regarding parenting time.

new text begin (b) If a parent is alleged to have committed domestic abuse against a household member
or child abuse against any child, the court must make a finding by a preponderance of the
evidence whether or not the parent committed domestic abuse or child abuse. If the court
finds that the parent committed domestic abuse or child abuse, the court must first weigh
and consider the allegations of domestic abuse or child abuse before considering any other
best interest factors when making a decision regarding parenting time.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end The state court administrator, in consultation with representatives of parents and
other interested persons, shall develop standards to be met by persons who are responsible
for supervising parenting time. Either parent may challenge the appropriateness of an
individual chosen by the court to supervise parenting time.

Sec. 8.

Minnesota Statutes 2022, section 518.175, subdivision 5, is amended to read:

Subd. 5.

Modification of parenting plan or order for parenting time.

(a) If a parenting
plan or an order granting parenting time cannot be used to determine the number of overnights
or overnight equivalents the child has with each parent, the court shall modify the parenting
plan or order granting parenting time so that the number of overnights or overnight
equivalents the child has with each parent can be determined. For purposes of this section,
"overnight equivalents" has the meaning given in section 518A.36, subdivision 1.

(b) If modification would serve the best interests of the child, the court shall modify the
decision-making provisions of a parenting plan or an order granting or denying parenting
time, if the modification would not change the child's primary residence. Consideration of
a child's best interest includes a child's changing developmental needs.

(c) Except as provided in section 631.52, the court may not restrict new text begin a parent's new text end parenting
time unless deleted text begin it finds that deleted text end :

new text begin (1) a parent is alleged to have committed domestic abuse against a household member
or child abuse against any child and the court has found by a preponderance of the evidence
that the parent committed domestic abuse or child abuse;
new text end

deleted text begin (1) deleted text end new text begin (2) the court finds that new text end parenting time is likely to endanger the child's physical or
emotional health or impair the child's emotional development; or

deleted text begin (2) deleted text end new text begin (3) the court finds that new text end the parent has chronically and unreasonably failed to comply
with court-ordered parenting time.

A modification of parenting time which increases a parent's percentage of parenting time
to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of the
other parent's parenting time.

(d) If a parent makes specific allegations that parenting time by the other parent places
the parent or child in danger of harm, new text begin such as when the other parent is alleged to have
committed domestic abuse against a household member or child abuse against any child, new text end
the court shall hold a hearing at the earliest possible time to determine the need to modify
the order granting parenting time. new text begin If a parent is alleged to have committed domestic abuse
against a household member or child abuse against any child, the court must make a finding
by a preponderance of the evidence whether or not the parent committed domestic abuse
or child abuse. If the court finds that the parent committed domestic abuse or child abuse,
the court must first weigh and consider allegations of domestic abuse or child abuse before
considering any other best interest factors when making a decision regarding parenting time.
new text end Consistent with subdivision 1a, the court may require a third party, including the local social
services agency, to supervise the parenting time or may restrict a parent's parenting time if
necessary to protect the other parent or child from harm. If there is an existing order for
protection governing the parties, the court shall consider the use of an independent, neutral
exchange location for parenting time.