SF 644

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to family law; changing certain procedures
for removal of a child's residence from Minnesota;
amending Minnesota Statutes 2004, sections 518.1705,
subdivision 7; 518.175, subdivision 3; 518.18.

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

Section 1.

Minnesota Statutes 2004, section 518.1705,
subdivision 7, is amended to read:

Subd. 7.

Moving the child to another state.

Parents may
agree deleted text begin , but the court must not require, that in a parenting plan
the factors in section 518.17 or 257.025, as applicable, deleted text end new text begin upon
the legal standard that new text end will govern a decision concerning
removal of a child's residence from this state, provided that:

(1) both parents were represented by counsel when the
parenting plan was approved; or

(2) the court found the parents were fully informed, the
agreement was voluntary, and the parents were aware of its
implications.

Sec. 2.

Minnesota Statutes 2004, section 518.175,
subdivision 3, is amended to read:

Subd. 3.

Move to another state.

The parent with whom the
child resides shall not move the residence of the child to
another state except upon order of the court or with the consent
of the other parent, if the other parent has been given
parenting time by the decree. If the purpose of the move is to
interfere with parenting time given to the other parent by the
decree, the court shall not permit the child's residence to be
moved to another state.

new text begin The court shall apply a best interests standard when
considering the request of the parent with whom the child
resides to move the child's residence to another state. The
factors the court must consider in determining the child's best
interests include, but are not limited to, the following:
new text end

new text begin (1) the nature, quality, extent of involvement, and
duration of the child's relationship with the person proposing
to relocate and with the nonrelocating person, siblings, and
other significant persons in the child's life;
new text end

new text begin (2) the age, developmental stage, needs of the child, and
the likely impact the relocation will have on the child's
physical, educational, and emotional development, taking into
consideration any special needs of the child;
new text end

new text begin (3) the feasibility of preserving the relationship between
the nonrelocating person and the child through suitable
parenting time arrangements, considering the logistics and
financial circumstances of the parties;
new text end

new text begin (4) the child's preference, taking into consideration the
age and maturity of the child;
new text end

new text begin (5) whether there is an established pattern of conduct of
the person seeking the relocation either to promote or thwart
the relationship of the child and the nonrelocating person;
new text end

new text begin (6) whether the relocation of the child will enhance the
general quality of the life for both the custodial parent
seeking the relocation and the child including, but not limited
to, financial or emotional benefit or educational opportunity;
new text end

new text begin (7) the reasons of each person for seeking or opposing the
relocation; and
new text end

new text begin (8) the effect on the safety and welfare of the child, or
of the parent requesting to move the child's residence, of
domestic abuse, as defined in section 518B.01.
new text end

new text begin The burden of proof is upon the parent requesting to move
the residence of the child to another state, except that if the
court finds the existence of domestic abuse between the parents,
the burden of proof is upon the parent opposing the move. The
court must consider all of the factors in this subdivision in
determining the best interests of the child.
new text end

Sec. 3.

Minnesota Statutes 2004, section 518.18, is
amended to read:

518.18 MODIFICATION OF ORDER.

(a) Unless agreed to in writing by the parties, no motion
to modify a custody order or parenting plan may be made earlier
than one year after the date of the entry of a decree of
dissolution or legal separation containing a provision dealing
with custody, except in accordance with paragraph (c).

(b) If a motion for modification has been heard, whether or
not it was granted, unless agreed to in writing by the parties
no subsequent motion may be filed within two years after
disposition of the prior motion on its merits, except in
accordance with paragraph (c).

(c) The time limitations prescribed in paragraphs (a) and
(b) shall not prohibit a motion to modify a custody order or
parenting plan if the court finds that there is persistent and
willful denial or interference with parenting time, or has
reason to believe that the child's present environment may
endanger the child's physical or emotional health or impair the
child's emotional development.

(d) If the court has jurisdiction to determine child
custody matters, the court shall not modify a prior custody
order or a parenting plan provision which specifies the child's
primary residence unless it finds, upon the basis of facts,
including unwarranted denial of, or interference with, a duly
established parenting time schedule, that have arisen since the
prior order or that were unknown to the court at the time of the
prior order, that a change has occurred in the circumstances of
the child or the parties and that the modification is necessary
to serve the best interests of the child. In applying these
standards the court shall retain the custody arrangement or the
parenting plan provision specifying the child's primary
residence that was established by the prior order unless:

(i) the court finds that a change in the custody
arrangement or primary residence is in the best interests of the
child and the parties previously agreed, in a writing approved
by a court, to apply the best interests standard in section
518.17 or 257.025, as applicable; and, with respect to
agreements approved by a court on or after April 28, 2000, both
parties were represented by counsel when the agreement was
approved or the court found the parties were fully informed, the
agreement was voluntary, and the parties were aware of its
implications;

(ii) both parties agree to the modification;

(iii) the child has been integrated into the family of the
petitioner with the consent of the other party; deleted text begin or
deleted text end

(iv) the child's present environment endangers the child's
physical or emotional health or impairs the child's emotional
development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the
child new text begin ; or
new text end

new text begin (v) the court has denied a request of the primary custodial
parent to move the residence of the child to another state, and
the primary custodial parent has relocated to another state
despite the court's order new text end .

In addition, a court may modify a custody order or
parenting plan under section 631.52.

(e) In deciding whether to modify a prior joint custody
order, the court shall apply the standards set forth in
paragraph (d) unless: (1) the parties agree in writing to the
application of a different standard, or (2) the party seeking
the modification is asking the court for permission to move the
residence of the child to another state.

(f) If a parent has been granted sole physical custody of a
minor and the child subsequently lives with the other parent,
and temporary sole physical custody has been approved by the
court or by a court-appointed referee, the court may suspend the
obligor's child support obligation pending the final custody
determination. The court's order denying the suspension of
child support must include a written explanation of the reasons
why continuation of the child support obligation would be in the
best interests of the child.