SF 1673

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/25/2021 09:40am

A bill for an act
relating to families; amending the best interest factors for custody determinations;
amending Minnesota Statutes 2020, section 518.17, subdivision 1.

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

Section 1.

Minnesota Statutes 2020, 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, 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, if the court deems the child to be of sufficient
ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents'
or either parent's household or relationship; the nature and context of the domestic abuse;
and the implications of the domestic abuse 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) the effect on the child's well-being and development of changes to home, school,
and community;

(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; and

(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.

(b) 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.

(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 new text begin and joint physical custody new text end 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 domestic abuse, as defined in
section 518B.01, has occurred between the parents. In determining whether the presumption
is rebutted, the court shall consider the nature and context of the domestic abuse and the
implications of the domestic abuse 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).

new text begin (10) The court shall recognize a parent's constitutionally protected fundamental right to
have the care, custody, and control of a parent's child. If a parent requests a parenting time
schedule that maximizes parenting time with a child, the court shall maximize the time that
a child spends with the child's parent to the highest degree possible, up to equal time as the
other parent, except when the court finds that there is clear and convincing evidence that
the following current circumstances exist and have caused emotional, physical, or educational
harm or endangerment to the child:
new text end

new text begin (i) abuse, harm, or neglect of the child as defined by chapter 260E;
new text end

new text begin (ii) willful abandonment of the child, meaning that a parent has had no contact on a
regular basis with the child for more than six months consistent with section 260C.301
unless one parent has prevented the other parent from having a relationship with the child,
in which case the court shall make efforts to reunite the child with the parent who had been
prevented access to the child without just cause;
new text end

new text begin (iii) a finding or conviction of domestic violence, through the family being adjudicated
in a filing under section 518B.01, or criminal conviction for domestic abuse under sections
609.221, 609.222, 609.223, 609.224, 609.2242, 609.2247, 609.26, 609.507, 609.749, or
629.75. The court shall not consider an order for protection issued without findings as
relevant to reduce parenting time for a parent, except that the court may order all exchanges
of the child to be in a neutral or public location, or to be conducted by a third party, or any
other reasonable method that the court deems proper to minimize contact between the parents
while exchanging the child for parenting time. A court shall not consider a parent's single
incident of escalated anger or abuse during the course of a custody battle, when the parent
has not demonstrated a history of anger management issues or domestic abuse, as a reason
to reduce parenting time. A court shall equally consider a victim's abuse accusations
regardless of whether the alleged victim is male or female. The court shall not be prejudicial
in weighing domestic abuse evidence because of the alleged victim or the alleged perpetrator's
gender. A false allegation that a party has been abused will be treated as a crime according
to section 609.507, and the court shall consider awarding sole custody or the majority of
parenting time to the falsely accused parent. The parent who made the false allegation shall
be ordered to participate in a therapeutic treatment plan to address anger management issues,
conflict resolution, assertiveness training, coparenting classes, mental health therapy, or
any other program that the court deems appropriate;
new text end

new text begin (iv) diagnosed by a professional certified to make a diagnosis for ongoing chemical
dependency or mental illness, but the parent remains untreated;
new text end

new text begin (v) unwillingness or inability of a parent to accept, request, or consistently fulfill a
schedule that maximizes the parent's parenting time, finding that an unreliable parenting
schedule impacts the stability of the child, including but not limited to a proven track record
of willfully and consistently not taking responsibility for the child during the parent's
scheduled parenting time or a parent's inability to demonstrate that the parent can adhere
to the parenting time schedule or take responsibility for finding safe alternative care for the
child during the parent's scheduled parenting time;
new text end

new text begin (vi) geographic considerations when parents cannot make regular exchanges of the child
because the parents' driving time for exchanges is greater than 40 minutes for each parent
or is otherwise excessive. The court shall assume that the location of the child will remain
in the same school district when the parents were together and the court shall give deference
to the parent who did not move away;
new text end

new text begin (vii) special needs of the child, diagnosed by a medical or educational professional, and
that the schedule will not support the child's special needs, or support the diagnostic plan
developed for the child by a qualified professional; or
new text end

new text begin (viii) any other criminal behaviors that negatively impact the safety of the child.
new text end

new text begin (c) The court shall recognize that exact schedules may vary greatly depending on the
unique circumstances of the family and the court shall approve of a parenting time schedule
agreement by the parents without the need for outside evaluation until there has been a
finding by a court that the child is currently in danger in the parent's care based on section
518.17, subdivision 1, paragraph (a), clause (10).
new text end

new text begin (d) The courts shall inform parents that they may agree in writing to temporary or periodic
adjustments in parenting time, without a court order, but that the most current court order
is the default parenting time schedule when the parents cannot reach an agreement regarding
a schedule.
new text end

new text begin (e) If a court denies a parent's request for maximized parenting time with a child, the
court shall, upon request of a parent, create a specific, clear, and reasonable case plan
outlining the case plan requirements that a parent must achieve before the court will grant
the parent's request for maximized parenting time. The court shall allow a parent the
opportunity to follow a case plan for six months after the parent has notice of the case plan
requirements. Six months after the parent has notice of a case plan, the court shall reconsider
whether to grant the parent's request to maximize parenting time with the child. If the parent
has substantially complied with the case plan, the court shall grant the parent's request to
maximize parenting time with the child. If the court finds that the parent has complied with
the case plan, making improvements in areas of the case plan, but has not yet substantially
complied with the case plan components, the court shall allow the parent another six months
to substantially comply with the case plan. At the end of the six-month period, the court
shall review the parent's case plan compliance and reconsider the parent's request to maximize
parenting time.
new text end

deleted text begin (c) deleted text end new text begin (f) 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).

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2021, and applies to filings
made on or after that date.
new text end