SF 1917

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to family law; modifying provisions relating 
  1.3             to custody and parenting time; requiring courts to 
  1.4             consider specified factors in making decisions related 
  1.5             to custody and parenting time; mandating compensatory 
  1.6             parenting time in certain cases; amending Minnesota 
  1.7             Statutes 2002, sections 518.175, subdivision 6; 
  1.8             518.18; Minnesota Statutes 2003 Supplement, section 
  1.9             518.17, subdivision 1; proposing coding for new law in 
  1.10            Minnesota Statutes, chapter 518.  
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 2003 Supplement, section 
  1.13  518.17, subdivision 1, is amended to read: 
  1.14     Subdivision 1.  [THE BEST INTERESTS OF THE CHILD.] (a) "The 
  1.15  best interests of the child" means all relevant factors to be 
  1.16  considered and evaluated by the court including: 
  1.17     (1) the wishes of the child's parent or parents as to 
  1.18  custody; 
  1.19     (2) the reasonable preference of the child, if the court 
  1.20  deems the child to be of sufficient age to express preference.  
  1.21  If the child is 13 years of age or older, the court shall apply 
  1.22  the provisions of section 518.1701; 
  1.23     (3) the child's primary caretaker; 
  1.24     (4) the intimacy of the relationship between each parent 
  1.25  and the child; 
  1.26     (5) the interaction and interrelationship of the child with 
  1.27  a parent or parents, siblings, and any other person who may 
  1.28  significantly affect the child's best interests; 
  2.1      (6) the child's adjustment to home, school, and community; 
  2.2      (7) the length of time the child has lived in a stable, 
  2.3   satisfactory environment and the desirability of maintaining 
  2.4   continuity; 
  2.5      (8) the permanence, as a family unit, of the existing or 
  2.6   proposed custodial home; 
  2.7      (9) the mental and physical health of all individuals 
  2.8   involved; except that a disability, as defined in section 
  2.9   363A.03, of a proposed custodian or the child shall not be 
  2.10  determinative of the custody of the child, unless the proposed 
  2.11  custodial arrangement is not in the best interest of the child; 
  2.12     (10) the capacity and disposition of the parties to give 
  2.13  the child love, affection, and guidance, and to continue 
  2.14  educating and raising the child in the child's culture and 
  2.15  religion or creed, if any; 
  2.16     (11) the child's cultural background; 
  2.17     (12) the effect on the child of the actions of an abuser, 
  2.18  if related to domestic abuse, as defined in section 518B.01, 
  2.19  that has occurred between the parents or between a parent and 
  2.20  another individual, whether or not the individual alleged to 
  2.21  have committed domestic abuse is or ever was a family or 
  2.22  household member of the parent; and 
  2.23     (13) except in cases in which a finding of domestic abuse 
  2.24  as defined in section 518B.01 has been made, the disposition of 
  2.25  each parent to encourage and permit frequent and continuing 
  2.26  contact by the other parent with the child; and 
  2.27     (14) the factors in section 518.1701. 
  2.28     The court may not use one factor to the exclusion of all 
  2.29  others.  The primary caretaker factor may not be used as a 
  2.30  presumption in determining the best interests of the child.  The 
  2.31  court must make detailed findings on each of the factors and 
  2.32  explain how the factors led to its conclusions and to the 
  2.33  determination of the best interests of the child.  
  2.34     (b) The court shall not consider conduct of a proposed 
  2.35  custodian that does not affect the custodian's relationship to 
  2.36  the child. 
  3.1      Sec. 2.  [518.1701] [BEST INTERESTS OF CHILD IN CUSTODY AND 
  3.2   PARENTING TIME DETERMINATIONS; ADDITIONAL FACTORS.] 
  3.3      (a) In addition to the provisions of section 518.17, 
  3.4   subdivision 1, and other law relating to the best interests of 
  3.5   the child, the court shall apply this section when making a 
  3.6   determination regarding the establishment or modification of 
  3.7   custody or parenting time.  
  3.8      (b) The court shall consider the effect on the child of 
  3.9   intentional conduct by a parent to interfere with or negatively 
  3.10  affect the relationship between the child and the other parent. 
  3.11     (c) If the child is 13 years of age or older, the court 
  3.12  shall consider the uncoerced preference of the child in making 
  3.13  its determination.  The court may obtain the preference of the 
  3.14  child through testimony or an in camera examination of the child.
  3.15     Sec. 3.  Minnesota Statutes 2002, section 518.175, 
  3.16  subdivision 6, is amended to read: 
  3.17     Subd. 6.  [REMEDIES.] (a) The court may provide for one or 
  3.18  more of the following remedies for denial of or interference 
  3.19  with court-ordered parenting time as provided under this 
  3.20  subdivision.  All parenting time orders must include notice of 
  3.21  the provisions of this subdivision. 
  3.22     (b) If the court finds that a person has been deprived of 
  3.23  court-ordered parenting time, the court shall order the parent 
  3.24  who has interfered to allow compensatory parenting time to the 
  3.25  other parent or the court shall make specific findings as to why 
  3.26  a request for compensatory parenting time is denied.  If the 
  3.27  court finds that a denial of parenting time was intentional, the 
  3.28  court must not deny a request for compensatory parenting time.  
  3.29  If compensatory parenting time is awarded, additional parenting 
  3.30  time must be: 
  3.31     (1) at least of the same type and duration as the deprived 
  3.32  parenting time and, at the discretion of the court, may be in 
  3.33  excess of or of a different type than the deprived parenting 
  3.34  time; 
  3.35     (2) taken within one year after the deprived parenting 
  3.36  time; and 
  4.1      (3) at a time acceptable to the parent deprived of 
  4.2   parenting time. 
  4.3      (c) If the court finds that a party has wrongfully failed 
  4.4   to comply with a parenting time order or a binding agreement or 
  4.5   decision under section 518.1751, the court may: 
  4.6      (1) impose a civil penalty of up to $500 on the party; 
  4.7      (2) require the party to post a bond with the court for a 
  4.8   specified period of time to secure the party's compliance; 
  4.9      (3) award reasonable attorney's fees and costs; 
  4.10     (4) require the party who violated the parenting time order 
  4.11  or binding agreement or decision of the parenting time expeditor 
  4.12  to reimburse the other party for costs incurred as a result of 
  4.13  the violation of the order or agreement or decision; or 
  4.14     (5) award any other remedy that the court finds to be in 
  4.15  the best interests of the children involved. 
  4.16     A civil penalty imposed under this paragraph must be 
  4.17  deposited in the county general fund and must be used to fund 
  4.18  the costs of a parenting time expeditor program in a county with 
  4.19  this program.  In other counties, the civil penalty must be 
  4.20  deposited in the state general fund. 
  4.21     (d) If the court finds that a party has been denied 
  4.22  parenting time and has incurred expenses in connection with the 
  4.23  denied parenting time, the court may require the party who 
  4.24  denied parenting time to post a bond in favor of the other party 
  4.25  in the amount of prepaid expenses associated with upcoming 
  4.26  planned parenting time. 
  4.27     (e) Proof of an unwarranted denial of or interference with 
  4.28  duly established parenting time may constitute contempt of court 
  4.29  and may be sufficient cause for reversal of custody. 
  4.30     Sec. 4.  Minnesota Statutes 2002, section 518.18, is 
  4.31  amended to read: 
  4.32     518.18 [MODIFICATION OF ORDER.] 
  4.33     (a) Unless agreed to in writing by the parties, no motion 
  4.34  to modify a custody order or parenting plan may be made earlier 
  4.35  than one year after the date of the entry of a decree of 
  4.36  dissolution or legal separation containing a provision dealing 
  5.1   with custody, except in accordance with paragraph (c). 
  5.2      (b) If a motion for modification has been heard, whether or 
  5.3   not it was granted, unless agreed to in writing by the parties 
  5.4   no subsequent motion may be filed within two years after 
  5.5   disposition of the prior motion on its merits, except in 
  5.6   accordance with paragraph (c). 
  5.7      (c) The time limitations prescribed in paragraphs (a) and 
  5.8   (b) shall not prohibit a motion to modify a custody order or 
  5.9   parenting plan if the court finds that there is persistent and 
  5.10  willful denial or interference with parenting time, or has 
  5.11  reason to believe that the child's present environment may 
  5.12  endanger the child's physical or emotional health or impair the 
  5.13  child's emotional development. 
  5.14     (d) If the court has jurisdiction to determine child 
  5.15  custody matters, the court shall not modify a prior custody 
  5.16  order or a parenting plan provision which specifies the child's 
  5.17  primary residence unless it finds, upon the basis of facts, 
  5.18  including unwarranted denial of, or interference with, a duly 
  5.19  established parenting time schedule, that have arisen since the 
  5.20  prior order or that were unknown to the court at the time of the 
  5.21  prior order, that a change has occurred in the circumstances of 
  5.22  the child or the parties and that the modification is necessary 
  5.23  to serve the best interests of the child.  In applying these 
  5.24  standards the court shall retain the custody arrangement or the 
  5.25  parenting plan provision specifying the child's primary 
  5.26  residence that was established by the prior order unless: 
  5.27     (i) the court finds that a change in the custody 
  5.28  arrangement or primary residence is in the best interests of the 
  5.29  child and the parties previously agreed, in a writing approved 
  5.30  by a court, to apply the best interests standard in section 
  5.31  518.17 or 257.025, as applicable; and, with respect to 
  5.32  agreements approved by a court on or after April 28, 2000, both 
  5.33  parties were represented by counsel when the agreement was 
  5.34  approved or the court found the parties were fully informed, the 
  5.35  agreement was voluntary, and the parties were aware of its 
  5.36  implications; 
  6.1      (ii) both parties agree to the modification; 
  6.2      (iii) the child has been integrated into the family of the 
  6.3   petitioner with the consent of the other party; or 
  6.4      (iv) the child's present environment endangers the child's 
  6.5   physical or emotional health or impairs the child's emotional 
  6.6   development and the harm likely to be caused by a change of 
  6.7   environment is outweighed by the advantage of a change to the 
  6.8   child; or 
  6.9      (v) the court finds the existence of three or more specific 
  6.10  incidences in which the parent who has custody or provides the 
  6.11  primary residence for the child has intentionally interfered 
  6.12  with parenting time of the other parent.  
  6.13  In addition, a court may modify a custody order or parenting 
  6.14  plan under section 631.52.  
  6.15     (e) In deciding whether to modify a prior joint custody 
  6.16  order, the court shall apply the standards set forth in 
  6.17  paragraph (d) unless:  (1) the parties agree in writing to the 
  6.18  application of a different standard, or (2) the party seeking 
  6.19  the modification is asking the court for permission to move the 
  6.20  residence of the child to another state. 
  6.21     (f) If a parent has been granted sole physical custody of a 
  6.22  minor and the child subsequently lives with the other parent, 
  6.23  and temporary sole physical custody has been approved by the 
  6.24  court or by a court-appointed referee, the court may suspend the 
  6.25  obligor's child support obligation pending the final custody 
  6.26  determination.  The court's order denying the suspension of 
  6.27  child support must include a written explanation of the reasons 
  6.28  why continuation of the child support obligation would be in the 
  6.29  best interests of the child.