SF 1606

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

A bill for an act
relating to family law; creating a presumption of joint physical custody; requiring
the use of parenting plans in certain cases; modifying custody designations for
parenting plans that use alternative terminology; amending Minnesota Statutes
2006, sections 518.003, subdivision 3; 518.17, subdivisions 1, 2; 518.1705,
subdivisions 3, 4.

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

Section 1.

Minnesota Statutes 2006, 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 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. 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 2006, 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 , has occurred between
the parents.
deleted text end

new text begin (a) new text end The court shall use a rebuttable presumption that deleted text begin upon request of either or both
parties, deleted text end joint legal new text begin and physical new text end custody is in the best interests of the child. deleted text begin However,
deleted text end

new text begin (b) Notwithstanding paragraph (a), 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 2006, 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 deleted text begin one deleted text end new text begin a
parenting order new text end 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 order 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. deleted text begin 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.
deleted 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 518A.39.

(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 deleted text begin one deleted text end new text begin a
parenting order new text end 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 2006, 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 or order 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 considered solely for that
purpose that the parents have joint legal and joint physical custody.
new text end