SF 3086

1st Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to domestic abuse; providing for the effect 
  1.3             of a recognition of paternity upon temporary custody; 
  1.4             providing a presumption concerning an order of 
  1.5             protection; amending Minnesota Statutes 2000, sections 
  1.6             13.82, subdivision 5; 257.75, subdivision 3; 518.179, 
  1.7             subdivision 2; 518B.01, subdivisions 5, 7, 13; 
  1.8             609.748, subdivision 4; 629.341, subdivision 4; 
  1.9             Minnesota Statutes 2001 Supplement, sections 518B.01, 
  1.10            subdivision 6; 629.72, subdivision 4. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 2000, section 13.82, 
  1.13  subdivision 5, is amended to read: 
  1.14     Subd. 5.  [DOMESTIC ABUSE DATA.] The written police report 
  1.15  required by section 629.341, subdivision 4, of an alleged 
  1.16  incident described in section 629.341, subdivision 1, and arrest 
  1.17  data, request for service data, and response or incident data 
  1.18  described in subdivision 2, 3, or 6 that arise out of this type 
  1.19  of incident or out of an alleged violation of an order for 
  1.20  protection must be released upon request at no cost to the 
  1.21  victim of domestic abuse and to an organization designated by 
  1.22  the Minnesota center for crime victims services, the department 
  1.23  of corrections, or the department of public safety as providing 
  1.24  services to victims of domestic abuse.  The executive director 
  1.25  or the commissioner of the appropriate state agency shall 
  1.26  develop written criteria for this designation in consultation 
  1.27  with the advisory council on battered women and domestic abuse. 
  1.28     Sec. 2.  Minnesota Statutes 2000, section 257.75, 
  2.1   subdivision 3, is amended to read: 
  2.2      Subd. 3.  [EFFECT OF RECOGNITION.] Subject to subdivision 2 
  2.3   
  2.4   and section 257.55, subdivision 1, paragraph (g) or (h), 
  2.5   the Except as otherwise provided in this subdivision, a 
  2.6   recognition that has not been revoked under subdivision 2 has 
  2.7   the force and effect of a judgment or order determining the 
  2.8   existence of the parent and child relationship under section 
  2.9   257.66.  If the conditions in section 257.55, subdivision 1, 
  2.10  paragraph (g) or (h), exist, the recognition creates only a 
  2.11  presumption of paternity for purposes of sections 257.51 to 
  2.12  257.74.  Temporary custody and temporary parenting time under 
  2.13  section 518B.01, subdivision 6, clause (4), may not be 
  2.14  determined based upon a recognition.  Once a recognition has 
  2.15  been properly executed and filed with the state registrar of 
  2.16  vital statistics, if there are no competing presumptions of 
  2.17  paternity, a judicial or administrative court may not allow 
  2.18  further action to determine parentage regarding the signator of 
  2.19  the recognition.  An action to determine custody and parenting 
  2.20  time may be commenced pursuant to chapter 518 without an 
  2.21  adjudication of parentage.  Until an order is entered granting 
  2.22  custody to another, the mother has sole custody.  The 
  2.23  recognition is: 
  2.24     (1) a basis for bringing an independent action to award 
  2.25  custody or parenting time to either parent, establishing a child 
  2.26  support obligation which may include up to the two years 
  2.27  immediately preceding the commencement of the action, ordering a 
  2.28  contribution by a parent under section 256.87, or ordering a 
  2.29  contribution to the reasonable expenses of the mother's 
  2.30  pregnancy and confinement, as provided under section 257.66, 
  2.31  subdivision 3, or ordering reimbursement for the costs of blood 
  2.32  or genetic testing, as provided under section 257.69, 
  2.33  subdivision 2; 
  2.34     (2) determinative for all other purposes related to the 
  2.35  existence of the parent and child relationship, except in 
  2.36  matters arising out of section 518B.01, subdivision 6, clause 
  2.37  (4); and 
  3.1      (3) entitled to full faith and credit in other 
  3.2   jurisdictions. 
  3.3      Sec. 3.  Minnesota Statutes 2000, section 518.179, 
  3.4   subdivision 2, is amended to read: 
  3.5      Subd. 2.  [APPLICABLE CRIMES.] This section applies to the 
  3.6   following crimes or similar crimes under the laws of the United 
  3.7   States, or any other state: 
  3.8      (1) murder in the first, second, or third degree under 
  3.9   section 609.185, 609.19, or 609.195; 
  3.10     (2) manslaughter in the first degree under section 609.20; 
  3.11     (3) assault in the first, second, or third degree under 
  3.12  section 609.221, 609.222, or 609.223; 
  3.13     (4) kidnapping under section 609.25; 
  3.14     (5) depriving another of custodial or parental rights under 
  3.15  section 609.26; 
  3.16     (6) soliciting, inducing, promoting, or receiving profit 
  3.17  derived from prostitution involving a minor under section 
  3.18  609.322; 
  3.19     (7) criminal sexual conduct in the first degree under 
  3.20  section 609.342; 
  3.21     (8) criminal sexual conduct in the second degree under 
  3.22  section 609.343; 
  3.23     (9) criminal sexual conduct in the third degree under 
  3.24  section 609.344, subdivision 1, paragraph (c), (f), or (g); 
  3.25     (10) solicitation of a child to engage in sexual conduct 
  3.26  under section 609.352; 
  3.27     (11) incest under section 609.365; 
  3.28     (12) malicious punishment of a child under section 609.377; 
  3.29     (13) neglect of a child under section 609.378; 
  3.30     (14) terroristic threats under section 609.713; or 
  3.31     (15) felony harassment or stalking under section 609.749, 
  3.32  subdivision 4. 
  3.33     Sec. 4.  Minnesota Statutes 2000, section 518B.01, 
  3.34  subdivision 5, is amended to read: 
  3.35     Subd. 5.  [HEARING ON APPLICATION; NOTICE.] (a) Upon 
  3.36  receipt of the petition, the court shall order a hearing which 
  4.1   shall be held not later than 14 days from the date of the 
  4.2   order for hearing unless an ex parte order is issued.  
  4.3      (b) If an ex parte order has been issued under subdivision 
  4.4   7 and a hearing requested, the time periods under subdivision 7 
  4.5   for holding a hearing apply.  If a hearing was requested by the 
  4.6   petitioner, the petitioner seeks only the relief under 
  4.7   subdivision 7, paragraph (a), a hearing is not required unless: 
  4.8      (1) the court declines to order the requested relief; or 
  4.9      (2) one of the parties requests a hearing. 
  4.10     (c) If an ex parte order has been issued under subdivision 
  4.11  7 and the petitioner seeks relief beyond that specified in 
  4.12  subdivision 7, paragraph (a), or if the court declines to order 
  4.13  relief requested by the petitioner, a hearing must be held 
  4.14  within seven days.  Personal service of the ex parte order may 
  4.15  be made upon the respondent at any time up to 12 hours prior to 
  4.16  the time set for the hearing, provided that the respondent at 
  4.17  the hearing may request a continuance of up to five days if 
  4.18  served fewer than five days prior to the hearing which 
  4.19  continuance shall be granted unless there are compelling reasons 
  4.20  not to.  If the hearing was requested by the respondent after 
  4.21  issuance of an ex parte order under subdivision 7, 
  4.22     (d) If an ex parte order has been issued only granting 
  4.23  relief under subdivision 7, paragraph (a), and the respondent 
  4.24  requests a hearing, the hearing shall be held within ten days of 
  4.25  the court's receipt of the respondent's request.  Service of the 
  4.26  notice of hearing must be made upon the petitioner not less than 
  4.27  five days prior to the hearing.  The court shall serve the 
  4.28  notice of hearing upon the petitioner by mail in the manner 
  4.29  provided in the rules of civil procedure for pleadings 
  4.30  subsequent to a complaint and motions and shall also mail notice 
  4.31  of the date and time of the hearing to the respondent.  In the 
  4.32  event that service cannot be completed in time to give the 
  4.33  respondent or petitioner the minimum notice required under this 
  4.34  paragraph subdivision, the court may set a new hearing date no 
  4.35  more than five days hence.  
  4.36     (e) If for good cause shown either party is unable to 
  5.1   proceed at the initial hearing and requests a continuance and 
  5.2   the court finds that a continuance is appropriate, the hearing 
  5.3   may be continued.  Unless otherwise agreed by the parties and 
  5.4   approved by the court, the continuance shall be for no more than 
  5.5   five days.  If the court grants the requested continuance, the 
  5.6   court shall also issue a written order continuing all provisions 
  5.7   of the ex parte order pending the issuance of an order after the 
  5.8   hearing. 
  5.9      (b) (f) Notwithstanding the preceding provisions of 
  5.10  paragraph (a) this subdivision, service on the respondent may be 
  5.11  made by one week published notice, as provided under section 
  5.12  645.11, provided the petitioner files with the court an 
  5.13  affidavit stating that an attempt at personal service made by a 
  5.14  sheriff or other law enforcement or corrections officer was 
  5.15  unsuccessful because the respondent is avoiding service by 
  5.16  concealment or otherwise, and that a copy of the petition and 
  5.17  notice of hearing has been mailed to the respondent at the 
  5.18  respondent's residence or that the residence is not known to the 
  5.19  petitioner.  Service under this paragraph is complete seven days 
  5.20  after publication.  The court shall set a new hearing date if 
  5.21  necessary to allow the respondent the five-day minimum notice 
  5.22  required under paragraph (a) (d). 
  5.23     Sec. 5.  Minnesota Statutes 2001 Supplement, section 
  5.24  518B.01, subdivision 6, is amended to read: 
  5.25     Subd. 6.  [RELIEF BY THE COURT.] (a) Upon notice and 
  5.26  hearing, the court may provide relief as follows: 
  5.27     (1) restrain the abusing party from committing acts of 
  5.28  domestic abuse; 
  5.29     (2) exclude the abusing party from the dwelling which the 
  5.30  parties share or from the residence of the petitioner; 
  5.31     (3) exclude the abusing party from a reasonable area 
  5.32  surrounding the dwelling or residence, which area shall be 
  5.33  described specifically in the order; 
  5.34     (4) award temporary custody or establish temporary 
  5.35  parenting time with regard to minor children of the parties on a 
  5.36  basis which gives primary consideration to the safety of the 
  6.1   victim and the children.  Temporary custody or parenting time 
  6.2   under this section may not be determined based on a recognition 
  6.3   of parentage under section 257.75, or the existence of a 
  6.4   presumption of paternity under section 257.55, subdivision 1, 
  6.5   paragraph (d), (e), (f), (g), (h), or (i), in the absence of a 
  6.6   prior court order under chapter 518 or section 257.541 governing 
  6.7   custody and parenting time.  Except for other cases in which 
  6.8   custody is contested, findings under section 257.025, 518.17, or 
  6.9   518.175 are not required.  If the court finds that the safety of 
  6.10  the victim or the children will be jeopardized by unsupervised 
  6.11  or unrestricted parenting time, the court shall condition or 
  6.12  restrict parenting time as to time, place, duration, or 
  6.13  supervision, or deny parenting time entirely, as needed to guard 
  6.14  the safety of the victim and the children.  The court's decision 
  6.15  on custody and parenting time shall in no way delay the issuance 
  6.16  of an order for protection granting other relief provided for in 
  6.17  this section.  The court must not enter a parenting plan under 
  6.18  section 518.1705 as part of an action for an order for 
  6.19  protection; 
  6.20     (5) on the same basis as is provided in chapter 518, 
  6.21  establish temporary support for minor children or a spouse, and 
  6.22  order the withholding of support from the income of the person 
  6.23  obligated to pay the support according to chapter 518; 
  6.24     (6) provide upon request of the petitioner counseling or 
  6.25  other social services for the parties, if married, or if there 
  6.26  are minor children; 
  6.27     (7) order the abusing party to participate in treatment or 
  6.28  counseling services, including requiring the abusing party to 
  6.29  successfully complete a domestic abuse counseling program or 
  6.30  educational program under section 518B.02; 
  6.31     (8) award temporary use and possession of property and 
  6.32  restrain one or both parties from transferring, encumbering, 
  6.33  concealing, or disposing of property except in the usual course 
  6.34  of business or for the necessities of life, and to account to 
  6.35  the court for all such transfers, encumbrances, dispositions, 
  6.36  and expenditures made after the order is served or communicated 
  7.1   to the party restrained in open court; 
  7.2      (9) exclude the abusing party from the place of employment 
  7.3   of the petitioner, or otherwise limit access to the petitioner 
  7.4   by the abusing party at the petitioner's place of employment; 
  7.5      (10) order the abusing party to pay restitution to the 
  7.6   petitioner; 
  7.7      (11) order the continuance of all currently available 
  7.8   insurance coverage without change in coverage or beneficiary 
  7.9   designation; and 
  7.10     (12) order, in its discretion, other relief as it deems 
  7.11  necessary for the protection of a family or household member, 
  7.12  including orders or directives to the sheriff, constable, or 
  7.13  other law enforcement or corrections officer as provided by this 
  7.14  section. 
  7.15     (b) Any relief granted by the order for protection shall be 
  7.16  for a fixed period not to exceed one year, except when the court 
  7.17  determines a longer fixed period is appropriate.  When a referee 
  7.18  presides at the hearing on the petition, the order granting 
  7.19  relief becomes effective upon the referee's signature. 
  7.20     (c) An order granting the relief authorized in paragraph 
  7.21  (a), clause (1), may not be vacated or modified in a proceeding 
  7.22  for dissolution of marriage or legal separation, except that the 
  7.23  court may hear a motion for modification of an order for 
  7.24  protection concurrently with a proceeding for dissolution of 
  7.25  marriage upon notice of motion and motion.  The notice required 
  7.26  by court rule shall not be waived.  If the proceedings are 
  7.27  consolidated and the motion to modify is granted, a separate 
  7.28  order for modification of an order for protection shall be 
  7.29  issued. 
  7.30     (d) An order granting the relief authorized in paragraph 
  7.31  (a), clause (2) or (3), is not voided by the admittance of the 
  7.32  abusing party into the dwelling from which the abusing party is 
  7.33  excluded. 
  7.34     (e) If a proceeding for dissolution of marriage or legal 
  7.35  separation is pending between the parties, the court shall 
  7.36  provide a copy of the order for protection to the court with 
  8.1   jurisdiction over the dissolution or separation proceeding for 
  8.2   inclusion in its file. 
  8.3      (f) An order for restitution issued under this subdivision 
  8.4   is enforceable as civil judgment. 
  8.5      Sec. 6.  Minnesota Statutes 2000, section 518B.01, 
  8.6   subdivision 7, is amended to read: 
  8.7      Subd. 7.  [EX PARTE ORDER.] (a) Where an application under 
  8.8   this section alleges an immediate and present danger of domestic 
  8.9   abuse, the court may grant an ex parte order for protection and 
  8.10  granting relief as the court deems proper, including an order:  
  8.11     (1) restraining the abusing party from committing acts of 
  8.12  domestic abuse; 
  8.13     (2) excluding any party from the dwelling they share or 
  8.14  from the residence of the other except by further order of the 
  8.15  court; 
  8.16     (3) excluding the abusing party from the place of 
  8.17  employment of the petitioner or otherwise limiting access to the 
  8.18  petitioner by the abusing party at the petitioner's place of 
  8.19  employment; and 
  8.20     (4) continuing all currently available insurance coverage 
  8.21  without change in coverage or beneficiary designation. 
  8.22     (b) A finding by the court that there is a basis for 
  8.23  issuing an ex parte order for protection constitutes a finding 
  8.24  that sufficient reasons exist not to require notice under 
  8.25  applicable court rules governing applications for ex parte 
  8.26  relief. 
  8.27     (c) Subject to paragraph (d), an ex parte order for 
  8.28  protection shall be effective for a fixed period set by the 
  8.29  court, as provided in subdivision 6, paragraph (b), or until 
  8.30  modified or vacated by the court pursuant to a hearing.  When 
  8.31  signed by a referee, the ex parte order becomes effective upon 
  8.32  the referee's signature.  Upon request, a full hearing, as 
  8.33  provided by this section, shall be set for not later than seven 
  8.34  days from the issuance of the ex parte order, if a hearing is 
  8.35  requested by the petitioner, or not later than ten days or 
  8.36  earlier than eight days from receipt by the court of a request 
  9.1   for a hearing by the respondent.  Except as provided in 
  9.2   paragraph (d), the respondent shall be personally served 
  9.3   forthwith a copy of the ex parte order along with a copy of the 
  9.4   petition and, if requested by the petitioner, notice of the date 
  9.5   set for the hearing.  If the petitioner does not request a 
  9.6   hearing, an order served on a respondent under this subdivision 
  9.7   must include a notice advising the respondent of the right to 
  9.8   request a hearing, must be accompanied by a form that can be 
  9.9   used by the respondent to request a hearing and must include a 
  9.10  conspicuous notice that a hearing will not be held unless 
  9.11  requested by the respondent within five days of service of the 
  9.12  order.  
  9.13     (d) Service of the ex parte order may be made by published 
  9.14  notice, as provided under subdivision 5, provided that the 
  9.15  petitioner files the affidavit required under that subdivision.  
  9.16  If personal service is not made or the affidavit is not filed 
  9.17  within 14 days of issuance of the ex parte order, the order 
  9.18  expires.  If the petitioner does not request a hearing, the 
  9.19  petition mailed to the respondent's residence, if known, must be 
  9.20  accompanied by the form for requesting a hearing and notice 
  9.21  described in paragraph (c).  Unless personal service is 
  9.22  completed, if service by published notice is not completed 
  9.23  within 28 days of issuance of the ex parte order, the order 
  9.24  expires. 
  9.25     (e) If the petitioner seeks relief under subdivision 6 
  9.26  other than the relief described in paragraph (a), the petitioner 
  9.27  must request a hearing to obtain the additional relief. 
  9.28     (f) Nothing in this subdivision affects the right of a 
  9.29  party to seek modification of an order under subdivision 11. 
  9.30     Sec. 7.  Minnesota Statutes 2000, section 518B.01, 
  9.31  subdivision 13, is amended to read: 
  9.32     Subd. 13.  [COPY TO LAW ENFORCEMENT AGENCY.] (a) An order 
  9.33  for protection and any continuance of an order for protection 
  9.34  granted pursuant to this section shall be forwarded by the court 
  9.35  administrator within 24 hours to the local law enforcement 
  9.36  agency with jurisdiction over the residence of the applicant.  
 10.1      Each appropriate law enforcement agency shall make 
 10.2   available to other law enforcement officers through a system for 
 10.3   verification, information as to the existence and status of any 
 10.4   order for protection issued pursuant to this section.  
 10.5      (b) If the applicant notifies the court administrator of a 
 10.6   change in the applicant's residence so that a different local 
 10.7   law enforcement agency has jurisdiction over the residence, the 
 10.8   order for protection and any continuance of an order for 
 10.9   protection must be forwarded by the court administrator to the 
 10.10  new law enforcement agency within 24 hours of the notice.  If 
 10.11  the applicant notifies the new law enforcement agency that an 
 10.12  order for protection has been issued under this section and the 
 10.13  applicant has established a new residence within that agency's 
 10.14  jurisdiction, within 24 hours the local law enforcement agency 
 10.15  shall request a copy of the order for protection from the court 
 10.16  administrator in the county that issued the order. 
 10.17     (c) When an order for protection is granted, the applicant 
 10.18  for an order for protection must be told by the court that: 
 10.19     (1) notification of a change in residence should be given 
 10.20  immediately to the court administrator and to the local law 
 10.21  enforcement agency having jurisdiction over the new residence of 
 10.22  the applicant; 
 10.23     (2) the reason for notification of a change in residence is 
 10.24  to forward an order for protection to the proper law enforcement 
 10.25  agency; and 
 10.26     (3) the order for protection must be forwarded to the law 
 10.27  enforcement agency having jurisdiction over the new residence 
 10.28  within 24 hours of notification of a change in residence, 
 10.29  whether notification is given to the court administrator or to 
 10.30  the local law enforcement agency having jurisdiction over the 
 10.31  applicant's new residence. 
 10.32     An order for protection is enforceable even if the 
 10.33  applicant does not notify the court administrator or the 
 10.34  appropriate law enforcement agency of a change in residence. 
 10.35     Sec. 8.  Minnesota Statutes 2000, section 609.748, 
 10.36  subdivision 4, is amended to read: 
 11.1      Subd. 4.  [TEMPORARY RESTRAINING ORDER.] (a) The court may 
 11.2   issue a temporary restraining order ordering the respondent to 
 11.3   cease or avoid the harassment of another person or to have no 
 11.4   contact with that person if the petitioner files a petition in 
 11.5   compliance with subdivision 3 and if the court finds reasonable 
 11.6   grounds to believe that the respondent has engaged in 
 11.7   harassment.  When a petition alleges harassment as defined by 
 11.8   subdivision 1, paragraph (a), clause (1), the petition must 
 11.9   further allege an immediate and present danger of harassment 
 11.10  before the court may issue a temporary restraining order under 
 11.11  this section.  
 11.12     (b) Notice need not be given to the respondent before the 
 11.13  court issues a temporary restraining order under this 
 11.14  subdivision.  A copy of the restraining order must be served on 
 11.15  the respondent along with the order for hearing and petition, as 
 11.16  provided in subdivision 3.  If the respondent is a juvenile, 
 11.17  whenever possible, a copy of the restraining order, along with 
 11.18  notice of the pendency of the case and the time and place of the 
 11.19  hearing, shall also be served by mail at the last known address 
 11.20  upon any parent or guardian of the juvenile respondent who is 
 11.21  not the petitioner.  A temporary restraining order may be 
 11.22  entered only against the respondent named in the petition.  
 11.23     (c) The temporary restraining order is in effect until a 
 11.24  hearing is held on the issuance of a restraining order under 
 11.25  subdivision 5.  When signed by a referee, the temporary order 
 11.26  becomes effective upon the referee's signature.  The court shall 
 11.27  hold the hearing on the issuance of a restraining order within 
 11.28  14 days after the temporary restraining order is issued unless 
 11.29  (1) the time period is extended upon written consent of the 
 11.30  parties; or (2) the time period is extended by the court for one 
 11.31  additional 14-day period upon a showing that the respondent has 
 11.32  not been served with a copy of the temporary restraining order 
 11.33  despite the exercise of due diligence or if service is made by 
 11.34  published notice under subdivision 3 and the petitioner files 
 11.35  the affidavit required under that subdivision. 
 11.36     Sec. 9.  Minnesota Statutes 2000, section 629.341, 
 12.1   subdivision 4, is amended to read: 
 12.2      Subd. 4.  [REPORT REQUIRED.] Whenever a peace officer 
 12.3   investigates an allegation that an incident described in 
 12.4   subdivision 1 has occurred, whether or not an arrest is made, 
 12.5   the officer shall make a written police report of the alleged 
 12.6   incident.  The report must contain at least the following 
 12.7   information:  the name, address and telephone number of the 
 12.8   victim, if provided by the victim, a statement as to whether an 
 12.9   arrest occurred, the name of the arrested person, and a brief 
 12.10  summary of the incident.  Data that identify a victim who has 
 12.11  made a request under section 13.82, subdivision 17, paragraph 
 12.12  (d), and that are private data under that subdivision, shall be 
 12.13  private in the report required by this section.  A copy of this 
 12.14  report must be provided upon request, at no cost, to the victim 
 12.15  of domestic abuse and to organizations designated by the 
 12.16  Minnesota crime victims services center, the department of 
 12.17  public safety, or the commissioner of corrections that are 
 12.18  providing services to victims of domestic abuse.  The officer 
 12.19  shall submit the report to the officer's supervisor or other 
 12.20  person to whom the employer's rules or policies require reports 
 12.21  of similar allegations of criminal activity to be made. 
 12.22     Sec. 10.  Minnesota Statutes 2001 Supplement, section 
 12.23  629.72, subdivision 4, is amended to read: 
 12.24     Subd. 4.  [SERVICE OF RESTRAINING ORDER OR ORDER FOR 
 12.25  PROTECTION.] If a restraining order is has been issued under 
 12.26  section 609.748 or an order for protection is has been issued 
 12.27  under section 518B.01 before or while the arrested person is 
 12.28  still in detention, the order must be served upon the arrested 
 12.29  person during detention if possible.