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SF 3713

as introduced - 91st Legislature (2019 - 2020) Posted on 02/27/2020 03:45pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to public safety; extending restraining orders for minors who are victims
of harassment; amending Minnesota Statutes 2018, sections 518B.01, subdivision
6; 609.748, subdivision 5.

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

Section 1.

Minnesota Statutes 2018, section 518B.01, subdivision 6, is amended to read:


Subd. 6.

Relief by court.

(a) Upon notice and hearing, the court may provide relief as
follows:

(1) restrain the abusing party from committing acts of domestic abuse;

(2) exclude the abusing party from the dwelling which the parties share or from the
residence of the petitioner;

(3) exclude the abusing party from a reasonable area surrounding the dwelling or
residence, which area shall be described specifically in the order;

(4) award temporary custody or establish temporary parenting time with regard to minor
children of the parties on a basis which gives primary consideration to the safety of the
victim and the children. In addition to the primary safety considerations, the court may
consider particular best interest factors that are found to be relevant to the temporary custody
and parenting time award. Findings under section 257.025, 518.17, or 518.175 are not
required with respect to the particular best interest factors not considered by the court. If
the court finds that the safety of the victim or the children will be jeopardized by unsupervised
or unrestricted parenting time, the court shall condition or restrict parenting time as to time,
place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety
of the victim and the children. The court's decision on custody and parenting time shall in
no way delay the issuance of an order for protection granting other relief provided for in
this section. The court must not enter a parenting plan under section 518.1705 as part of an
action for an order for protection;

(5) on the same basis as is provided in chapter 518 or 518A, establish temporary support
for minor children or a spouse, and order the withholding of support from the income of
the person obligated to pay the support according to chapter 518A;

(6) provide upon request of the petitioner counseling or other social services for the
parties, if married, or if there are minor children;

(7) order the abusing party to participate in treatment or counseling services, including
requiring the abusing party to successfully complete a domestic abuse counseling program
or educational program under section 518B.02;

(8) award temporary use and possession of property and restrain one or both parties from
transferring, encumbering, concealing, or disposing of property except in the usual course
of business or for the necessities of life, and to account to the court for all such transfers,
encumbrances, dispositions, and expenditures made after the order is served or communicated
to the party restrained in open court;

(9) exclude the abusing party from the place of employment of the petitioner, or otherwise
limit access to the petitioner by the abusing party at the petitioner's place of employment;

(10) order the abusing party to have no contact with the petitioner whether in person,
by telephone, mail, or electronic mail or messaging, through a third party, or by any other
means;

(11) order the abusing party to pay restitution to the petitioner;

(12) order the continuance of all currently available insurance coverage without change
in coverage or beneficiary designation;

(13) order, in its discretion, other relief as it deems necessary for the protection of a
family or household member, including orders or directives to the sheriff or other law
enforcement or corrections officer as provided by this section;

(14) direct the care, possession, or control of a pet or companion animal owned,
possessed, or kept by the petitioner or respondent or a child of the petitioner or respondent;
and

(15) direct the respondent to refrain from physically abusing or injuring any pet or
companion animal, without legal justification, known to be owned, possessed, kept, or held
by either party or a minor child residing in the residence or household of either party as an
indirect means of intentionally threatening the safety of such person.

(b) new text beginExcept as provided in this paragraph or when the court determines a longer period
is appropriate,
new text endany relief granted by the order for protection shall be for a period not to
exceed two yearsdeleted text begin, except when the court determines a longer period is appropriatedeleted text end. new text beginUnless
the court determines that a shorter period is in the best interests of the minor, the court shall
presume that relief granted pursuant to a petition made on behalf of a minor under subdivision
4, paragraph (a), shall be in effect for a period of two years or until the minor reaches the
age of 18, whichever is longer.
new text endWhen a referee presides at the hearing on the petition, the
order granting relief becomes effective upon the referee's signature.

(c) An order granting the relief authorized in paragraph (a), clause (1), may not be vacated
or modified in a proceeding for dissolution of marriage or legal separation, except that the
court may hear a motion for modification of an order for protection concurrently with a
proceeding for dissolution of marriage upon notice of motion and motion. The notice required
by court rule shall not be waived. If the proceedings are consolidated and the motion to
modify is granted, a separate order for modification of an order for protection shall be issued.

(d) An order granting the relief authorized in paragraph (a), clause (2) or (3), is not
voided by the admittance of the abusing party into the dwelling from which the abusing
party is excluded.

(e) If a proceeding for dissolution of marriage or legal separation is pending between
the parties, the court shall provide a copy of the order for protection to the court with
jurisdiction over the dissolution or separation proceeding for inclusion in its file.

(f) An order for restitution issued under this subdivision is enforceable as civil judgment.

(g) An order granting relief shall prohibit the abusing party from possessing firearms
for the length the order is in effect if the order (1) restrains the abusing party from harassing,
stalking, or threatening the petitioner or restrains the abusing party from engaging in other
conduct that would place the petitioner in reasonable fear of bodily injury, and (2) includes
a finding that the abusing party represents a credible threat to the physical safety of the
petitioner or prohibits the abusing party from using, attempting to use, or threatening to use
physical force against the petitioner. The order shall inform the abusing party of that party's
prohibited status. Except as provided in paragraph (i), the court shall order the abusing party
to transfer any firearms that the person possesses, within three business days, to a federally
licensed firearms dealer, a law enforcement agency, or a third party who may lawfully
receive them. The transfer may be permanent or temporary. A temporary firearm transfer
only entitles the receiving party to possess the firearm. A temporary transfer does not transfer
ownership or title. An abusing party may not transfer firearms to a third party who resides
with the abusing party. If an abusing party makes a temporary transfer, a federally licensed
firearms dealer or law enforcement agency may charge the abusing party a reasonable fee
to store the person's firearms and may establish policies for disposal of abandoned firearms,
provided such policies require that the person be notified via certified mail prior to disposal
of abandoned firearms. For temporary firearms transfers under this paragraph, a law
enforcement agency, federally licensed firearms dealer, or third party shall exercise due
care to preserve the quality and function of the transferred firearms and shall return the
transferred firearms to the person upon request after the expiration of the prohibiting time
period, provided the person is not otherwise prohibited from possessing firearms under state
or federal law. The return of temporarily transferred firearms to an abusing party shall
comply with state and federal law. If an abusing party permanently transfers the abusing
party's firearms to a law enforcement agency, the agency is not required to compensate the
abusing party and may charge the abusing party a reasonable processing fee. A law
enforcement agency is not required to accept an abusing party's firearm under this paragraph.

(h) An abusing party who is ordered to transfer firearms under paragraph (g) must file
proof of transfer as provided for in this paragraph. If the transfer is made to a third party,
the third party must sign an affidavit under oath before a notary public either acknowledging
that the abusing party permanently transferred the abusing party's firearms to the third party
or agreeing to temporarily store the abusing party's firearms until such time as the abusing
party is legally permitted to possess firearms. The affidavit shall indicate the serial number,
make, and model of all firearms transferred by the abusing party to the third party. The third
party shall acknowledge in the affidavit that the third party may be held criminally and
civilly responsible under section 624.7144 if the abusing party gains access to a transferred
firearm while the firearm is in the custody of the third party. If the transfer is to a law
enforcement agency or federally licensed firearms dealer, the law enforcement agency or
federally licensed firearms dealer shall provide proof of transfer to the abusing party. The
proof of transfer must specify whether the firearms were permanently or temporarily
transferred and include the name of the abusing party, date of transfer, and the serial number,
make, and model of all transferred firearms. The abusing party shall provide the court with
a signed and notarized affidavit or proof of transfer as described in this section within two
business days of the firearms transfer. The court shall seal affidavits and proofs of transfer
filed pursuant to this paragraph.

(i) When a court issues an order containing a firearms restriction provided for in paragraph
(g), the court shall determine by a preponderance of evidence if an abusing party poses an
imminent risk of causing another person substantial bodily harm. Upon a finding of imminent
risk, the court shall order that the local law enforcement agency take immediate possession
of all firearms in the abusing party's possession. The local law enforcement agency shall
exercise due care to preserve the quality and function of the abusing party's firearms and
shall return the firearms to the person upon request after the expiration of the prohibiting
time period, provided the person is not otherwise prohibited from possessing firearms under
state or federal law. The local law enforcement agency shall, upon written notice from the
abusing party, transfer the firearms to a federally licensed firearms dealer or a third party
who may lawfully receive them. Before a local law enforcement agency transfers a firearm
under this paragraph, the agency shall require the third party or federally licensed firearms
dealer receiving the firearm to submit an affidavit or proof of transfer that complies with
the requirements for affidavits or proofs of transfer established in paragraph (h). The agency
shall file all affidavits or proofs of transfer received with the court within two business days
of the transfer. The court shall seal all affidavits or proofs of transfer filed pursuant to this
paragraph. A federally licensed firearms dealer or third party who accepts a firearm transfer
pursuant to this paragraph shall comply with paragraphs (g) and (h) as if accepting transfer
from the abusing party. If the law enforcement agency does not receive written notice from
the abusing party within three business days, the agency may charge a reasonable fee to
store the abusing party's firearms. A law enforcement agency may establish policies for
disposal of abandoned firearms, provided such policies require that the abusing party be
notified via certified mail prior to disposal of abandoned firearms.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020, and applies to orders issued
on or after that date.
new text end

Sec. 2.

Minnesota Statutes 2018, section 609.748, subdivision 5, is amended to read:


Subd. 5.

Restraining order.

(a) The court may issue a restraining order that provides
any or all of the following:

(1) orders the respondent to cease or avoid the harassment of another person; or

(2) orders the respondent to have no contact with another person.

(b) The court may issue an order under paragraph (a) if all of the following occur:

(1) the petitioner has filed a petition under subdivision 3;

(2) a peace officer has served respondent with a copy of the temporary restraining order
obtained under subdivision 4, and with notice of the right to request a hearing, or service
has been made by publication under subdivision 3, paragraph (b); and

(3) the court finds at the hearing that there are reasonable grounds to believe that the
respondent has engaged in harassment.

A restraining order may be issued only against the respondent named in the petition; except
that if the respondent is an organization, the order may be issued against and apply to all of
the members of the organization. If the court finds that the petitioner has had two or more
previous restraining orders in effect against the same respondent or the respondent has
violated a prior or existing restraining order on two or more occasions, relief granted by the
restraining order may be for a period of up to 50 years. new text beginIf a petition was brought on behalf
of a minor pursuant to subdivision 2, relief granted by the restraining order may be for a
period of up to two years or until the minor reaches the age of 18, whichever is longer.
new text endIn
all other cases, relief granted by the restraining order must be for a fixed period of not more
than two years. When a referee presides at the hearing on the petition, the restraining order
becomes effective upon the referee's signature.

(c) An order issued under this subdivision must be personally served upon the respondent.

(d) If the court orders relief for a period of up to 50 years under paragraph (a), the
respondent named in the restraining order may request to have the restraining order vacated
or modified if the order has been in effect for at least five years and the respondent has not
violated the order. Application for relief under this paragraph must be made in the county
in which the restraining order was issued. Upon receipt of the request, the court shall set a
hearing date. Personal service must be made upon the petitioner named in the restraining
order not less than 30 days before the date of the hearing. At the hearing, the respondent
named in the restraining order has the burden of proving by a preponderance of the evidence
that there has been a material change in circumstances and that the reasons upon which the
court relied in granting the restraining order no longer apply and are unlikely to occur. If
the court finds that the respondent named in the restraining order has met the burden of
proof, the court may vacate or modify the order. If the court finds that the respondent named
in the restraining order has not met the burden of proof, the court shall deny the request and
no request may be made to vacate or modify the restraining order until five years have
elapsed from the date of denial. An order vacated or modified under this paragraph must
be personally served on the petitioner named in the restraining order.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020, and applies to orders issued
on or after that date.
new text end