Office of the Revisor of Statutes
Minnesota Session Laws - 1986, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1986
CHAPTER 406-S.F.No. 1732
An act relating to marriage dissolution; providing a
presumption for joint legal custody; providing for
custody mediation; regulating support determinations;
amending Minnesota Statutes 1984, sections 518.17,
subdivision 2, and by adding a subdivision; 518.175,
by adding a subdivision; 518.551, subdivision 5;
518.57; 518.611, by adding a subdivision; Minnesota
Statutes 1985 Supplement, section 518.64, subdivision
2; proposing coding for new law in Minnesota Statutes,
chapter 518; repealing Minnesota Statutes 1984,
section 518.17, subdivisions 4 and 5.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1984, section 518.17,
subdivision 2, is amended to read:
Subd. 2. [FACTORS WHEN JOINT CUSTODY IS SOUGHT.] In
addition to the factors listed in subdivision 1, where either
joint legal or joint physical custody is contemplated or sought,
the court shall consider the following relevant factors:
(a) The ability of parents to cooperate in the rearing of
their children;
(b) Methods for resolving disputes regarding any major
decision concerning the life of the child, and the parents'
willingness to use those methods; and
(c) Whether it would be detrimental to the child if one
parent were to have sole authority over the child's upbringing.
The court shall use a rebuttable presumption that upon
request of either or both parties, joint legal custody is in the
best interests of the child.
Sec. 2. Minnesota Statutes 1984, section 518.17, is
amended by adding a subdivision to read:
Subd. 6. [DEPARTURE FROM GUIDELINES BASED ON JOINT
CUSTODY.] An award of joint legal custody is not a reason for
departure from the guidelines in section 518.551, subdivision 5.
Sec. 3. Minnesota Statutes 1984, section 518.175, is
amended by adding a subdivision to read:
Subd. 6. [COMPENSATORY VISITATION.] If the court finds
that the noncustodial parent has been wrongfully deprived of the
duly established right to visitation, the court shall order the
custodial parent to permit additional visits to compensate for
the visitation of which the noncustodial parent was deprived.
Additional visits must be:
(1) of the same type and duration as the wrongfully denied
visit;
(2) taken within one year after the wrongfully denied
visit; and
(3) at a time acceptable to the noncustodial parent.
Sec. 4. Minnesota Statutes 1984, section 518.551,
subdivision 5, is amended to read:
Subd. 5. [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The
petitioner shall notify the public authority of all proceedings
for dissolution, legal separation, determination of parentage or
for the custody of a child, if either party is receiving aid to
families with dependent children or applies for it subsequent to
the commencement of the proceeding. After receipt of the
notice, the court shall set child support by multiplying as
provided in this subdivision. The court may order either or
both parents owing a duty of support to a child of the marriage
to pay an amount reasonable or necessary for the child's
support, without regard to marital misconduct. The court shall
approve a child support agreement of the parties if each party
is represented by independent counsel, unless the agreement is
not in the interest of justice. In other cases the court shall
order child support in accordance with the guidelines and the
other factors set forth in paragraph (b) and any departure
therefrom.
The court shall multiply the obligor's net income by the
percentage indicated by the following guidelines:
Net Income Per Number of Children
Month of Obligor
1 2 3 4 5 6 7 or
more
$400 and Below Order based on the ability of the
obligor to provide support
at these income levels, or at higher
levels, if the obligor has
the earning ability.
$401 - 500 14% 17% 20% 22% 24% 26% 28%
$501 - 550 15% 18% 21% 24% 26% 28% 30%
$551 - 600 16% 19% 22% 25% 28% 30% 32%
$601 - 650 17% 21% 24% 27% 29% 32% 34%
$651 - 700 18% 22% 25% 28% 31% 34% 36%
$701 - 750 19% 23% 27% 30% 33% 36% 38%
$751 - 800 20% 24% 28% 31% 35% 38% 40%
$801 - 850 21% 25% 29% 33% 36% 40% 42%
$851 - 900 22% 27% 31% 34% 38% 41% 44%
$901 - 950 23% 28% 32% 36% 40% 43% 46%
$951 - 1000 24% 29% 34% 38% 41% 45% 48%
$1001- 6000 4000 25% 30% 35% 39% 43% 47% 50%
Guidelines for support for an obligor with a monthly income
of $6001 $4001 or more shall be the same dollar amounts as
provided for in the guidelines for an obligor with a monthly
income of $6000 $4000.
Net Income defined as:
Total monthly
income less *(1) (i) Federal Income Tax
*(2) (ii) State Income Tax
(3) (iii) Social Security
Deductions
(4) (iv) Mandatory Reasonable
Pension Deductions
*Standard
Deductions apply- (5) (v) Union Dues
use of tax tables (6) (vi) Cost of Dependent
recommended Insurance Coverage
(7) (vii) Cost of Individual
Health/Hospitalization
Coverage or an Equivalent
Amount for Actual
Medical Expenses
(viii) A Child Support or
Maintenance Order that is
Currently Being Paid.
"Net income" does not include the income of the obligor's
spouse.
(a) (b) In addition to the child support payment
guidelines, the court shall take into consideration the
following criteria factors in setting or modifying child support:
(1) all earnings, income, and resources of the obligor
parents, including real and personal property;
(2) the basic living needs of the obligor;
(3) (2) the financial needs and resources, physical and
emotional condition, and educational needs of the child or
children to be supported; and
(3) the standards of living the child would have enjoyed
had the marriage not been dissolved.
(4) the amount of the aid to families with dependent
children grant for the child or children; and
(5) the parents' debts as provided in paragraph (c).
(b) (c) In establishing or modifying a support obligation,
the court may consider debts owed to private creditors, but only
if:
(1) the right to support has not been assigned under
section 256.74;
(2) the court determines that the debt was reasonably
incurred for necessary support of the child or obligee parent or
for the necessary generation of income. If the debt was incurred
for the necessary generation of income, the court shall consider
only the amount of debt that is essential to the continuing
generation of income; and
(3) the party requesting a departure produces a sworn
schedule of the debts, with supporting documentation, showing
goods or services purchased, the recipient of them, the amount
of the original debt, the outstanding balance, the monthly
payment, and the number of months until the debt will be fully
paid; and
(4) the court determines that the debt was legitimately
incurred for the necessary support of the child or obligee or
for the necessary generation of income.
Any schedule prepared under paragraph (b) (c), clause (3),
shall contain a statement that the debt will be fully paid after
the number of months shown in the schedule, barring emergencies
beyond the party's control.
The court shall order child support in accordance with the
guidelines and any departure therefrom. Any further departure
below the guidelines that is based on a consideration of debts
owed to private creditors shall not exceed 18 months in
duration, after which the support shall increase automatically
to the level ordered by the court. Nothing in this section
shall be construed to prohibit one or more step increases in
support to reflect debt retirement during the 18-month period.
Where payment of debt is ordered pursuant to this section,
the payment shall be ordered to be in the nature of child
support.
(c) Previous support orders and maintenance orders may be
considered if the obligor is paying them.
(d) Nothing shall preclude the court from receiving
evidence on the above factors to determine if the guidelines
should be exceeded or modified in a particular case.
(e) The above guidelines are binding in each case unless
the court makes express findings of fact as to the reason for
departure below or above the guidelines in that case in which
the court orders support that so deviates from the
guidelines. It may also increase the amount of child support by
more than the guidelines without making express findings by
agreement of the parties or by making further findings.
Sec. 5. Minnesota Statutes 1984, section 518.57, is
amended to read:
518.57 [MINOR CHILDREN, SUPPORT.]
Subdivision 1. [ORDER.] Upon a decree of dissolution,
legal separation or annulment, the court may make a further
order which is just and proper concerning the maintenance of the
minor children as is provided by section 518.17, and for the
maintenance of any child of the parties as defined in section
518.54, as support money, and may make the same a lien or charge
upon the property of the parties to the proceeding, or either of
them, either at the time of the entry of the judgment or by
subsequent order upon proper application therefor.
Subd. 2. [SEASONAL INCOME.] The court shall establish the
annual support of an obligor with a seasonal income so that the
obligor makes either the same monthly payments throughout the
year or monthly payments that reflect variations in income.
Sec. 6. Minnesota Statutes 1984, section 518.611, is
amended by adding a subdivision to read:
Subd. 10. [ORDER TERMINATING INCOME WITHHOLDING.] Whenever
an obligation for support of a child or maintenance of a spouse,
or both, terminates under the terms of the order or decree
establishing the obligation, and where the obligation is
enforced by an order for income withholding from the obligor,
the court shall enter an order, directed to the obligor's
employer or other payer of funds, which terminates the income
withholding. The order terminating income withholding must
specify the effective date of the order, referencing the initial
order or decree establishing the support obligation.
The order must be entered once the following conditions
have been met:
(1) the obligor serves written notice of the application
for termination of income withholding by mail upon the obligee
at the obligee's last known mailing address; and a duplicate
copy of the application is served upon the public authority
responsible for the processing of support collection services;
(2) the application for termination of income withholding
specifies the event that terminates the support obligation, the
effective date of the termination of the support obligation, and
the applicable provisions of the order or decree that
established the support obligation;
(3) the application includes the complete name of the
obligor's employer or other payer of funds, the business mailing
address, the court action and court file number, and the support
and collections file number, if known; and
(4) after receipt of the application for termination of
income withholding, the obligee or the public authority fails
within 20 days to request a hearing on the issue of whether
income withholding of support should continue clearly specifying
the basis for the continued support obligation and, ex parte, to
stay the service of the order terminating income withholding
upon the obligor's employer or other payer of funds, pending the
outcome of the hearing.
Sec. 7. [518.619] [CONTESTED CUSTODY; MEDIATION SERVICES.]
Subdivision 1. [MEDIATION PROCEEDING.] Except as provided
in subdivision 2, if it appears on the face of the petition or
other application for an order or modification of an order for
the custody of a child that custody is contested, the matter may
be set for mediation of the contested issue prior to or
concurrent with setting the matter for hearing. The purpose of
the mediation proceeding is to reduce acrimony which may exist
between the parties and to develop an agreement assuring the
child's close and continuing contact with both parents after the
marriage is dissolved. The mediator shall use best efforts to
effect a settlement of the custody dispute.
Subd. 2. [EXCEPTION.] If the court determines that there
is probable cause that one of the parties, or a child of a
party, has been physically or sexually abused by the other
party, the court shall not require mediation.
Subd. 3. [MEDIATOR APPOINTMENT.] In order to participate
in a custody mediation, a mediator must be appointed by the
family court. A mediator must be a member of the professional
staff of a family court, probation department, mental health
services agency, or a private mediation service. The mediator
must be on a list of mediators approved by the court having
jurisdiction of the matter, unless the parties stipulate to a
mediator not on the list.
Subd. 4. [MEDIATOR QUALIFICATIONS.] A mediator who
performs mediation in contested child custody matters shall meet
the following minimum qualifications:
(a) knowledge of the court system and the procedures used
in contested child custody matters;
(b) knowledge of other resources in the community to which
the parties to contested child custody matters can be referred
for assistance;
(c) knowledge of child development, clinical issues
relating to children, the effects of marriage dissolution on
children, and child custody research; and
(d) a minimum of 40 hours of certified mediation training.
Subd. 5. [RECORDS; PRIVATE DATA.] Mediation proceedings
shall be conducted in private. All records of a mediation
proceeding shall be private and not available as evidence in an
action for marriage dissolution and related proceedings on any
issue in controversy in the dissolution.
Subd. 6. [MEDIATOR RECOMMENDATIONS.] When the parties have
not reached agreement as a result of the mediation proceeding,
the mediator may recommend to the court that an investigation be
conducted under section 518.167, or that other action be taken
to assist the parties to resolve the controversy before hearing
on the issues. The mediator may conduct the investigation. The
mediator may recommend that mutual restraining orders be issued
in appropriate cases, pending determination of the controversy,
to protect the well-being of the children involved in the
controversy.
Subd. 7. [MEDIATION AGREEMENT.] An agreement reached by
the parties as a result of mediation shall be discussed by the
parties with their attorneys, if any, and the approved agreement
may then be included in the marital dissolution decree or other
stipulation submitted to the court.
Subd. 8. [RULES.] Each court shall adopt rules to
implement this section, and shall compile and maintain a list of
mediators.
Sec. 8. Minnesota Statutes 1985 Supplement, section
518.64, subdivision 2, is amended to read:
Subd. 2. [MODIFICATION.] The terms of a decree respecting
maintenance or support may be modified upon a showing of one or
more of the following: (1) substantially increased or decreased
earnings of a party; (2) substantially increased or decreased
need of a party; (3) receipt of assistance under sections 256.72
to 256.87; or (4) a change in the cost-of-living for either
party as measured by the federal bureau of statistics, any of
which makes the terms unreasonable and unfair. On a motion for
modification of maintenance, the court shall apply, in addition
to all other relevant factors, the factors for an award of
maintenance under section 518.552 that exist at the time of the
motion. On a motion for modification of support, the court
shall take into consideration the needs of the children and
shall not consider the financial circumstances of each party's
spouse, if any. A modification which decreases support or
maintenance may be made retroactive only upon a showing that any
failure to pay in accord with the terms of the original order
was not willful. A modification which increases support or
maintenance shall not be made retroactive if the obligor has
substantially complied with the previous order. Except for an
award of the right of occupancy of the homestead, provided in
section 518.63, all divisions of real and personal property
provided by section 518.58 shall be final, and may be revoked or
modified only where the court finds the existence of conditions
that justify reopening a judgment under the laws of this state.
The court may impose a lien or charge on the divided property at
any time while the property, or subsequently acquired property,
is owned by the parties or either of them, for the payment of
maintenance or support money, or may sequester the property as
is provided by section 518.24.
Sec. 9. [REPEALER.]
Minnesota Statutes 1984, section 518.17, subdivisions 4 and
5, are repealed.
Sec. 10. [EFFECTIVE DATE.]
Section 7 is effective January 1, 1987.
Approved March 24, 1986
Official Publication of the State of Minnesota
Revisor of Statutes