SF 1996

3rd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to family law; requiring specificity in 
  1.3             visitation orders; providing for enforcement of 
  1.4             visitation orders; modifying provisions for visitation 
  1.5             expeditors; providing for suspension of interest on 
  1.6             child support arrearages in certain cases; imposing 
  1.7             penalties; amending Minnesota Statutes 1994, sections 
  1.8             518.175, subdivisions 1 and 6; 518.1751; 518.68, 
  1.9             subdivisions 2 and 3; and 548.091, subdivision 1a; 
  1.10            Minnesota Statutes 1995 Supplement, section 518.5512, 
  1.11            by adding a subdivision; repealing Minnesota Statutes 
  1.12            1994, section 518.175, subdivision 4. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14                             ARTICLE 1 
  1.15                             VISITATION 
  1.16     Section 1.  Minnesota Statutes 1994, section 518.175, 
  1.17  subdivision 1, is amended to read: 
  1.18     Subdivision 1.  [GENERAL.] (a) In all proceedings for 
  1.19  dissolution or legal separation, subsequent to the commencement 
  1.20  of the proceeding and continuing thereafter during the minority 
  1.21  of the child, the court shall, upon the request of either 
  1.22  parent, grant such rights of visitation on behalf of the child 
  1.23  and noncustodial parent as will enable the child and the 
  1.24  noncustodial parent to maintain a child to parent relationship 
  1.25  that will be in the best interests of the child.  If the court 
  1.26  finds, after a hearing, that visitation is likely to endanger 
  1.27  the child's physical or emotional health or impair the child's 
  1.28  emotional development, the court shall restrict visitation by 
  1.29  the noncustodial parent as to time, place, duration, or 
  2.1   supervision and may deny visitation entirely, as the 
  2.2   circumstances warrant.  The court shall consider the age of the 
  2.3   child and the child's relationship with the noncustodial parent 
  2.4   prior to the commencement of the proceeding.  A parent's failure 
  2.5   to pay support because of the parent's inability to do so shall 
  2.6   not be sufficient cause for denial of visitation. 
  2.7      (b) The court may provide that a law enforcement officer or 
  2.8   other appropriate person will accompany a party seeking to 
  2.9   enforce or comply with visitation. 
  2.10     (c) Upon request of either party, to the extent practicable 
  2.11  a visitation order must include a specific schedule for 
  2.12  visitation, including the frequency and duration of visitation 
  2.13  and visitation during holidays and vacations, unless visitation 
  2.14  is restricted, denied, or reserved. 
  2.15     (d) The court administrator shall provide a form for a pro 
  2.16  se motion regarding visitation disputes, which includes 
  2.17  provisions for indicating the relief requested, an affidavit in 
  2.18  which the party may state the facts of the dispute, and a brief 
  2.19  description of the visitation expeditor process under section 
  2.20  518.1751.  The form may not include a request for a change of 
  2.21  custody.  The court shall provide instructions on serving and 
  2.22  filing the motion. 
  2.23     Sec. 2.  Minnesota Statutes 1994, section 518.175, 
  2.24  subdivision 6, is amended to read: 
  2.25     Subd. 6.  [COMPENSATORY VISITATION REMEDIES.] (a) The court 
  2.26  may provide for one or more of the following remedies for denial 
  2.27  of or interference with visitation as provided under this 
  2.28  subdivision.  All visitation orders must include notice of the 
  2.29  provisions of this subdivision. 
  2.30     (b) If the court finds that a person has been wrongfully 
  2.31  deprived of the duly established right to visitation, the court 
  2.32  shall order the custodial parent to permit additional visits to 
  2.33  compensate for the visitation of which the person was deprived.  
  2.34  Additional visits must be: 
  2.35     (1) of the same type and duration as the wrongfully denied 
  2.36  visit; 
  3.1      (2) taken within one year after the wrongfully denied 
  3.2   visit; and 
  3.3      (3) at a time acceptable to the person deprived of 
  3.4   visitation. 
  3.5      (c) If the court finds that a party has wrongfully failed 
  3.6   to comply with a visitation order or a binding agreement or 
  3.7   decision under section 518.1751, the court may: 
  3.8      (1) impose a civil penalty of up to $500 on the party; or 
  3.9      (2) require the party to post a bond with the court for a 
  3.10  specified period of time to secure the party's compliance. 
  3.11     A civil penalty imposed under this paragraph must be 
  3.12  deposited in the county general fund and must be used to fund 
  3.13  the costs of a visitation expeditor program in a county with 
  3.14  this program.  In other counties, the civil penalty must be 
  3.15  deposited in the state general fund. 
  3.16     (d) If the court finds that a party has been denied 
  3.17  visitation and has incurred expenses in connection with the 
  3.18  denied visitation, the court may require the party who denied 
  3.19  visitation to post a bond in favor of the other party in the 
  3.20  amount of prepaid expenses associated with an upcoming planned 
  3.21  visitation. 
  3.22     (e) Proof of an unwarranted denial of or interference with 
  3.23  duly established visitation may constitute contempt of court and 
  3.24  may be sufficient cause for reversal of custody. 
  3.25     Sec. 3.  Minnesota Statutes 1994, section 518.1751, is 
  3.26  amended to read: 
  3.27     518.1751 [VISITATION DISPUTE RESOLUTION.] 
  3.28     Subdivision 1.  [VISITATION EXPEDITOR.] (a) Upon agreement 
  3.29  request of all parties either party or upon the court's own 
  3.30  motion, the court may appoint a visitation expeditor to resolve 
  3.31  visitation disputes that occur under a visitation order while a 
  3.32  matter is pending under this chapter, chapter 257 or 518A, or 
  3.33  after a decree is entered.  Prior to appointing the visitation 
  3.34  expeditor, the court shall give the parties notice that the 
  3.35  costs of the visitation expeditor will be apportioned among the 
  3.36  parties and that if the parties do not reach an agreement, the 
  4.1   visitation expeditor will make a nonbinding decision resolving 
  4.2   the dispute. 
  4.3      (b) For purposes of this section, "visitation dispute" 
  4.4   means a disagreement among parties about visitation with a 
  4.5   child, including a dispute about an anticipated denial of a 
  4.6   future scheduled visit.  "Visitation dispute" includes a claim 
  4.7   by a custodial parent that a noncustodial parent is not visiting 
  4.8   a child as well as a claim by a noncustodial parent that a 
  4.9   custodial parent is denying or interfering with visitation. 
  4.10     Subd. 2.  [APPOINTMENT; COSTS.] The court shall appoint the 
  4.11  visitation expeditor and indicate the term of the appointment.  
  4.12  If the parties cannot agree on a visitation expeditor, the court 
  4.13  shall present a list of candidates with one more candidate than 
  4.14  there are parties to the dispute.  In developing the list of 
  4.15  candidates, the court must give preference to persons who agree 
  4.16  to volunteer their services or who will charge a variable fee 
  4.17  for services based on the ability of the parties to pay for 
  4.18  them.  Each party shall strike one name and the court shall 
  4.19  appoint the remaining individual as the visitation expeditor.  
  4.20  In its order appointing the visitation expeditor, the court 
  4.21  shall apportion the costs of the visitation expeditor among the 
  4.22  parties, with each party bearing the portion of costs that the 
  4.23  court determines is just and equitable under the circumstances.  
  4.24  If a party files a pro se motion regarding a visitation dispute 
  4.25  and there is not a court order that provides for apportionment 
  4.26  of the costs of an expeditor, the court administrator may 
  4.27  require the party requesting the appointment of an expeditor to 
  4.28  pay the costs of the expeditor in advance.  Neither party may be 
  4.29  required to submit a dispute to a visitation expeditor if the 
  4.30  party cannot afford to pay for the costs of an expeditor and an 
  4.31  affordable expeditor is not available, unless the other party 
  4.32  agrees to pay the costs.  After costs are incurred, a party may 
  4.33  by motion request that the costs be reapportioned on equitable 
  4.34  grounds.  The court may consider the resources of the parties, 
  4.35  the nature of the dispute, and whether a party acted in bad 
  4.36  faith.  The court may consider information from the expeditor in 
  5.1   determining bad faith. 
  5.2      Subd. 3.  [AGREEMENT OR DECISION.] (a) If a visitation 
  5.3   dispute arises, the visitation expeditor shall meet with the 
  5.4   parties together or separately within five days and make a 
  5.5   diligent effort to facilitate an agreement to resolve the 
  5.6   visitation dispute.  If a visitation dispute requires immediate 
  5.7   resolution, the visitation expeditor may confer with the parties 
  5.8   through a telephone conference or similar means.  An expeditor 
  5.9   may make a decision without conferring with a party if the 
  5.10  expeditor made a good faith effort to confer with the party, but 
  5.11  the party chose not to participate in resolution of the dispute. 
  5.12     (b) If the parties do not reach an agreement, the expeditor 
  5.13  shall make a decision resolving the dispute as soon as 
  5.14  possible but not later than five days after the final meeting or 
  5.15  conference with the parties.  Resolution of a dispute may 
  5.16  include compensatory visitation under section 518.175, 
  5.17  subdivision 6.  The visitation expeditor may not make a decision 
  5.18  that modifies visitation rights ordered by the court.  The 
  5.19  expeditor shall put an agreement or decision in writing, provide 
  5.20  a copy to the parties, and file a copy with the court.  If a 
  5.21  party does not comply with an agreement of the parties or a 
  5.22  decision of the expeditor, any party may bring a motion with the 
  5.23  court to resolve the dispute.  The court may consider the 
  5.24  agreement of the parties or the decision of the expeditor, but 
  5.25  neither is binding on the court. 
  5.26     Subd. 4.  [OTHER AGREEMENTS.] This section does not 
  5.27  preclude the parties from voluntarily agreeing to submit their 
  5.28  visitation dispute to a neutral third party or from otherwise 
  5.29  resolving visitation disputes on a voluntary basis. 
  5.30     Subd. 5.  [IMMUNITY.] A visitation expeditor is immune from 
  5.31  civil liability for actions taken or not taken when acting under 
  5.32  this section. 
  5.33     Subd. 6.  [MANDATORY VISITATION DISPUTE RESOLUTION.] (a) 
  5.34  Subject to subdivision 7, a judicial district may establish a 
  5.35  mandatory visitation dispute resolution program as provided in 
  5.36  this subdivision.  In a district where a program has been 
  6.1   established, parties may be required to submit visitation 
  6.2   disputes to a visitation expeditor as a prerequisite to a motion 
  6.3   on the dispute being heard by the court, or either party may 
  6.4   submit the dispute to a visitation expeditor.  A party may file 
  6.5   a motion with the court for purposes of obtaining a court date, 
  6.6   if necessary, but a hearing may not be held until resolution of 
  6.7   the dispute with the visitation expeditor.  
  6.8      (b) If a visitation expeditor has not been previously 
  6.9   appointed for the parties under subdivision 1 and the parties 
  6.10  cannot agree on a visitation expeditor, the court or court 
  6.11  administrator shall appoint a visitation expeditor from a list 
  6.12  of candidates established by the judicial district, giving 
  6.13  preference to candidates who agree to volunteer their services 
  6.14  or charge a variable fee based on the ability of the parties to 
  6.15  pay. 
  6.16     (c) Notwithstanding subdivision 1, an agreement of the 
  6.17  parties or decision of the visitation expeditor under this 
  6.18  subdivision is binding on the parties unless vacated or modified 
  6.19  by the court.  The expeditor shall put the agreement or decision 
  6.20  in writing, provide a copy to the parties, and file a copy with 
  6.21  the court.  The court may consider the agreement of the parties 
  6.22  or the decision of the expeditor, but neither is binding on the 
  6.23  court.  
  6.24     Subd. 7.  [EXCEPTIONS.] A party may not be required to 
  6.25  refer a visitation dispute to a visitation expeditor under this 
  6.26  section if: 
  6.27     (1) the party has obtained an order for protection under 
  6.28  chapter 518B against the other party; or 
  6.29     (2) the party is unable to pay the costs of the expeditor, 
  6.30  as provided under subdivision 2. 
  6.31     Sec. 4.  Minnesota Statutes 1994, section 518.68, 
  6.32  subdivision 2, is amended to read: 
  6.33     Subd. 2.  [CONTENTS.] The required notices must be 
  6.34  substantially as follows: 
  6.35                          IMPORTANT NOTICE 
  6.36  1.  PAYMENTS TO PUBLIC AGENCY 
  7.1      Pursuant to Minnesota Statutes, section 518.551, 
  7.2      subdivision 1, payments ordered for maintenance and support 
  7.3      must be paid to the public agency responsible for child 
  7.4      support enforcement as long as the person entitled to 
  7.5      receive the payments is receiving or has applied for public 
  7.6      assistance or has applied for support and maintenance 
  7.7      collection services.  MAIL PAYMENTS TO: 
  7.8   2.  DEPRIVING ANOTHER OF CUSTODIAL OR PARENTAL RIGHTS -- A 
  7.9   FELONY 
  7.10     A person may be charged with a felony who conceals a minor 
  7.11     child or takes, obtains, retains, or fails to return a 
  7.12     minor child from or to the child's parent (or person with 
  7.13     custodial or visitation rights), pursuant to Minnesota 
  7.14     Statutes, section 609.26.  A copy of that section is 
  7.15     available from any district court clerk. 
  7.16  3.  RULES OF SUPPORT, MAINTENANCE, VISITATION 
  7.17     (a) Payment of support or spousal maintenance is to be as 
  7.18     ordered, and the giving of gifts or making purchases of 
  7.19     food, clothing, and the like will not fulfill the 
  7.20     obligation. 
  7.21     (b) Payment of support must be made as it becomes due, and 
  7.22     failure to secure or denial of rights of visitation is NOT 
  7.23     an excuse for nonpayment, but the aggrieved party must seek 
  7.24     relief through a proper motion filed with the court. 
  7.25     (c) Nonpayment of support is not grounds to deny 
  7.26     visitation.  The party entitled to receive support may 
  7.27     apply for support and collection services, file a contempt 
  7.28     motion, or obtain a judgment as provided in Minnesota 
  7.29     Statutes, section 548.091.  
  7.30     (d) The payment of support or spousal maintenance takes 
  7.31     priority over payment of debts and other obligations. 
  7.32     (e) A party who accepts additional obligations of support 
  7.33     does so with the full knowledge of the party's prior 
  7.34     obligation under this proceeding. 
  7.35     (f) Child support or maintenance is based on annual income, 
  7.36     and it is the responsibility of a person with seasonal 
  8.1      employment to budget income so that payments are made 
  8.2      throughout the year as ordered. 
  8.3      (g) If there is a layoff or a pay reduction, support may be 
  8.4      reduced as of the time of the layoff or pay reduction if a 
  8.5      motion to reduce the support is served and filed with the 
  8.6      court at that time, but any such reduction must be ordered 
  8.7      by the court.  The court is not permitted to reduce support 
  8.8      retroactively, except as provided in Minnesota Statutes, 
  8.9      section 518.64, subdivision 2, paragraph (c).  
  8.10  4.  PARENTAL RIGHTS FROM MINNESOTA STATUTES, SECTION 518.17, 
  8.11  SUBDIVISION 3 
  8.12     Unless otherwise provided by the Court: 
  8.13     (a) Each party has the right of access to, and to receive 
  8.14     copies of, school, medical, dental, religious training, and 
  8.15     other important records and information about the minor 
  8.16     children.  Each party has the right of access to 
  8.17     information regarding health or dental insurance available 
  8.18     to the minor children.  Presentation of a copy of this 
  8.19     order to the custodian of a record or other information 
  8.20     about the minor children constitutes sufficient 
  8.21     authorization for the release of the record or information 
  8.22     to the requesting party. 
  8.23     (b) Each party shall keep the other informed as to the name 
  8.24     and address of the school of attendance of the minor 
  8.25     children.  Each party has the right to be informed by 
  8.26     school officials about the children's welfare, educational 
  8.27     progress and status, and to attend school and parent 
  8.28     teacher conferences.  The school is not required to hold a 
  8.29     separate conference for each party. 
  8.30     (c) In case of an accident or serious illness of a minor 
  8.31     child, each party shall notify the other party of the 
  8.32     accident or illness, and the name of the health care 
  8.33     provider and the place of treatment. 
  8.34     (d) Each party has the right of reasonable access and 
  8.35     telephone contact with the minor children. 
  8.36  5.  WAGE AND INCOME DEDUCTION OF SUPPORT AND MAINTENANCE 
  9.1      Child support and/or spousal maintenance may be withheld 
  9.2      from income, with or without notice to the person obligated 
  9.3      to pay, when the conditions of Minnesota Statutes, sections 
  9.4      518.611 and 518.613, have been met.  A copy of those 
  9.5      sections is available from any district court clerk. 
  9.6   6.  CHANGE OF ADDRESS OR RESIDENCE 
  9.7      Unless otherwise ordered, the person responsible to make 
  9.8      support or maintenance payments shall notify the person 
  9.9      entitled to receive the payment and the public authority 
  9.10     responsible for collection, if applicable, of a change of 
  9.11     address or residence within 60 days of the address or 
  9.12     residence change. 
  9.13  7.  COST OF LIVING INCREASE OF SUPPORT AND MAINTENANCE 
  9.14     Child support and/or spousal maintenance may be adjusted 
  9.15     every two years based upon a change in the cost of living 
  9.16     (using Department of Labor Consumer Price Index .........., 
  9.17     unless otherwise specified in this order) when the 
  9.18     conditions of Minnesota Statutes, section 518.641, are met. 
  9.19     Cost of living increases are compounded.  A copy of 
  9.20     Minnesota Statutes, section 518.641, and forms necessary to 
  9.21     request or contest a cost of living increase are available 
  9.22     from any district court clerk. 
  9.23  8.  JUDGMENTS FOR UNPAID SUPPORT 
  9.24     If a person fails to make a child support payment, the 
  9.25     payment owed becomes a judgment against the person 
  9.26     responsible to make the payment by operation of law on or 
  9.27     after the date the payment is due, and the person entitled 
  9.28     to receive the payment or the public agency may obtain 
  9.29     entry and docketing of the judgment WITHOUT NOTICE to the 
  9.30     person responsible to make the payment under Minnesota 
  9.31     Statutes, section 548.091.  Interest begins to accrue on a 
  9.32     payment or installment of child support whenever the unpaid 
  9.33     amount due is greater than the current support due, 
  9.34     pursuant to Minnesota Statutes, section 548.091, 
  9.35     subdivision 1a.  
  9.36  9.  JUDGMENTS FOR UNPAID MAINTENANCE 
 10.1      A judgment for unpaid spousal maintenance may be entered 
 10.2      when the conditions of Minnesota Statutes, section 548.091, 
 10.3      are met.  A copy of that section is available from any 
 10.4      district court clerk. 
 10.5   10.  ATTORNEY FEES AND COLLECTION COSTS FOR ENFORCEMENT OF CHILD 
 10.6   SUPPORT 
 10.7      A judgment for attorney fees and other collection costs 
 10.8      incurred in enforcing a child support order will be entered 
 10.9      against the person responsible to pay support when the 
 10.10     conditions of section 518.14, subdivision 2, are met.  A 
 10.11     copy of section 518.14 and forms necessary to request or 
 10.12     contest these attorney fees and collection costs are 
 10.13     available from any district court clerk. 
 10.14  11.  VISITATION EXPEDITOR PROCESS 
 10.15     On request of either party or on its own motion, the court 
 10.16     may appoint a visitation expeditor to resolve visitation 
 10.17     disputes under Minnesota Statutes, section 518.1751.  A 
 10.18     copy of that section and a description of the expeditor 
 10.19     process is available from any district court clerk. 
 10.20  12.  VISITATION REMEDIES AND PENALTIES 
 10.21     Remedies and penalties for the wrongful denial of 
 10.22     visitation rights are available under Minnesota Statutes, 
 10.23     section 518.175, subdivision 6.  These include compensatory 
 10.24     visitation; civil penalties; bond requirements; contempt; 
 10.25     and reversal of custody.  A copy of that subdivision and 
 10.26     forms for requesting relief are available from any district 
 10.27     court clerk. 
 10.28     Sec. 5.  Minnesota Statutes 1994, section 518.68, 
 10.29  subdivision 3, is amended to read: 
 10.30     Subd. 3.  [COPIES OF LAW AND FORMS.] The district court 
 10.31  administrator shall make available at no charge copies of the 
 10.32  sections 518.14, 518.17, 518.611, 518.613, 518.641, 548.091, and 
 10.33  609.26 referred to in subdivision 2, and shall provide forms to 
 10.34  request or contest attorney fees and collection costs or a 
 10.35  cost-of-living increase under section 518.14, subdivision 2, or 
 10.36  518.641.  
 11.1      Sec. 6.  [REPEALER.] 
 11.2      Minnesota Statutes 1994, section 518.175, subdivision 4, is 
 11.3   repealed. 
 11.4                              ARTICLE 2
 11.5                        CHILD SUPPORT INTEREST
 11.6      Section 1.  Minnesota Statutes 1995 Supplement, section 
 11.7   518.5512, is amended by adding a subdivision to read: 
 11.8      Subd. 4.  [TERMINATION OF INTEREST.] The public authority 
 11.9   or a party bringing a motion under section 548.091, subdivision 
 11.10  1a, may proceed immediately to a contested administrative 
 11.11  proceeding under section 518.5511, subdivision 4. 
 11.12     Sec. 2.  Minnesota Statutes 1994, section 548.091, 
 11.13  subdivision 1a, is amended to read: 
 11.14     Subd. 1a.  [CHILD SUPPORT JUDGMENT BY OPERATION OF LAW.] 
 11.15  (a) Any payment or installment of support required by a judgment 
 11.16  or decree of dissolution or legal separation, determination of 
 11.17  parentage, an order under chapter 518C, an order under section 
 11.18  256.87, or an order under section 260.251, that is not paid or 
 11.19  withheld from the obligor's income as required under section 
 11.20  518.611 or 518.613, is a judgment by operation of law on and 
 11.21  after the date it is due and is entitled to full faith and 
 11.22  credit in this state and any other state.  Except as otherwise 
 11.23  provided by paragraph (b), interest accrues from the date the 
 11.24  unpaid amount due is greater than the current support due at the 
 11.25  annual rate provided in section 549.09, subdivision 1, plus two 
 11.26  percent, not to exceed an annual rate of 18 percent.  A payment 
 11.27  or installment of support that becomes a judgment by operation 
 11.28  of law between the date on which a party served notice of a 
 11.29  motion for modification under section 518.64, subdivision 2, and 
 11.30  the date of the court's order on modification may be modified 
 11.31  under that subdivision. 
 11.32     (b) Notwithstanding the provisions of section 549.09, upon 
 11.33  motion to the court and upon proof by the obligor of 36 
 11.34  consecutive months of complete and timely payments of both 
 11.35  current support and court-ordered paybacks of a child support 
 11.36  debt or arrearage, the court may order interest on the remaining 
 12.1   debt or arrearage to stop accruing.  Timely payments are those 
 12.2   made in the month in which they are due.  If, after that time, 
 12.3   the obligor fails to make complete and timely payments of both 
 12.4   current support and court-ordered paybacks of child support debt 
 12.5   or arrearage, the public authority or the obligee may move the 
 12.6   court for the reinstatement of interest as of the month in which 
 12.7   the obligor ceased making complete and timely payments. 
 12.8      The court shall provide copies of all orders issued under 
 12.9   this section to the public authority.  The commissioner of human 
 12.10  services shall prepare and make available to the court and the 
 12.11  parties forms to be submitted by the parties in support of a 
 12.12  motion under this paragraph.