Minnesota Session Laws - 1989, Regular Session

  

                         Laws of Minnesota 1989 

                        CHAPTER 248-H.F.No. 729 
           An act relating to marriage dissolution; requiring 
          courts to consider the existence of domestic abuse in 
          determining whether to award joint custody; providing 
          for the appointment of visitation expeditors to 
          resolve ongoing visitation disputes; providing for 
          visitation by persons who have resided with a child; 
          providing that either parent may request visitation 
          rights on behalf of the child; requiring the court to 
          restrict or modify visitation under certain 
          circumstances; permitting agreements about 
          modification of maintenance; including the primary 
          caretaker standard as a factor to be considered in 
          custody decisions; requiring specific findings on each 
          factor and prohibiting courts from relying exclusively 
          on one factor in determining custody; modifying 
          provisions dealing with the valuation of marital 
          property; amending Minnesota Statutes 1988, sections 
          257.022, by adding a subdivision; 518.17, subdivisions 
          1 and 2; 518.175, subdivisions 1 and 5; 518.552, by 
          adding a subdivision; and 518.58, subdivision 1; 
          proposing coding for new law in Minnesota Statutes, 
          chapter 518. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
     Section 1.  Minnesota Statutes 1988, section 257.022, is 
amended by adding a subdivision to read: 
    Subd. 2b.  [WHEN CHILD HAS RESIDED WITH OTHER PERSON.] If 
an unmarried minor has resided in a household with a person, 
other than a foster parent, for two years or more and no longer 
resides with the person, the person may petition the district 
court for an order granting the person reasonable visitation 
rights to the child during the child's minority.  The court 
shall grant the petition if it finds that: 
    (1) visitation rights would be in the best interests of the 
child; 
    (2) the petitioner and child had established emotional ties 
creating a parent and child relationship; and 
    (3) visitation rights would not interfere with the 
relationship between the custodial parent and the child. 
    The court shall consider the reasonable preference of the 
child, if the court considers the child to be of sufficient age 
to express a preference. 
     Sec. 2.  Minnesota Statutes 1988, section 518.17, 
subdivision 1, is amended to read: 
    Subdivision 1.  [THE BEST INTERESTS OF THE CHILD.] (a) "The 
best interests of the child" means all relevant factors to be 
considered and evaluated by the court including: 
    (a) (1) the wishes of the child's parent or parents as to 
custody; 
    (b) (2) the reasonable preference of the child, if the 
court deems the child to be of sufficient age to express 
preference; 
    (3) the child's primary caretaker; 
    (4) the intimacy of the relationship between each parent 
and the child; 
    (c) (5) the interaction and interrelationship of the child 
with a parent or parents, siblings, and any other person who may 
significantly affect the child's best interests; 
    (d) (6) the child's adjustment to home, school, and 
community; 
    (e) (7) the length of time the child has lived in a stable, 
satisfactory environment and the desirability of maintaining 
continuity; 
    (f) (8) the permanence, as a family unit, of the existing 
or proposed custodial home; 
    (g) (9) the mental and physical health of all individuals 
involved; 
    (h) (10) the capacity and disposition of the parties to 
give the child love, affection, and guidance, and to continue 
educating and raising the child in the child's culture and 
religion or creed, if any; 
    (i) (11) the child's cultural background; and 
    (j) (12) the effect on the child of the actions of an 
abuser, if related to domestic abuse, as defined in section 
518B.01, that has occurred between the parents. 
    The court may not use one factor to the exclusion of all 
others.  The court must make detailed findings on each of the 
factors and explain how the factors led to its conclusions and 
to the determination of the best interests of the child.  
    (b) The court shall not consider conduct of a proposed 
custodian that does not affect the custodian's relationship to 
the child. 
    Sec. 3.  Minnesota Statutes 1988, 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; 
and 
    (d) Whether domestic abuse, as defined in section 518B.01, 
has occurred between the parents.  
    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. 4.  Minnesota Statutes 1988, section 518.175, 
subdivision 1, is amended to read: 
    Subdivision 1.  In all proceedings for dissolution or legal 
separation, subsequent to the commencement of the proceeding and 
continuing thereafter during the minority of the child, the 
court shall, upon the request of the noncustodial either parent, 
grant such rights of visitation on behalf of the child and 
noncustodial parent as will enable the child and the 
noncustodial parent to maintain a child to parent relationship 
that will be in the best interests of the child.  If the court 
finds, after a hearing, that visitation is likely to endanger 
the child's physical or emotional health or impair the child's 
emotional development, the court may shall restrict visitation 
by the noncustodial parent as to time, place, duration, or 
supervision and may deny visitation entirely, as the 
circumstances warrant.  The court shall consider the age of the 
child and the child's relationship with the noncustodial parent 
prior to the commencement of the proceeding.  A parent's failure 
to pay support because of the parent's inability to do so shall 
not be sufficient cause for denial of visitation. 
    Sec. 5.  Minnesota Statutes 1988, section 518.175, 
subdivision 5, is amended to read: 
    Subd. 5.  The court may shall modify an order granting or 
denying visitation rights whenever modification would serve the 
best interests of the child, but the court shall not restrict a 
parent's visitation rights unless it finds that:  
    (1) the visitation is likely to endanger the child's 
physical or emotional health or impair the child's emotional 
development; or 
    (2) the noncustodial parent has chronically and 
unreasonably failed to comply with court-ordered visitation. 
    If the custodial parent makes specific allegations that 
visitation places the custodial parent in danger of harm, the 
court shall hold a hearing at the earliest possible time to 
determine the need to modify the order granting visitation 
rights.  The court may require a third party, including the 
county welfare board, to supervise the visitation or may 
restrict a parent's visitation rights if necessary to protect 
the custodial parent from harm. 
    Sec. 6.  [518.1751] [VISITATION DISPUTE RESOLUTION.] 
    Subdivision 1.  [VISITATION EXPEDITOR.] (a) Upon agreement 
of all parties, the court may appoint a visitation expeditor to 
resolve visitation disputes that occur under a visitation order 
while a matter is pending under this chapter, chapter 257 or 
518A, or after a decree is entered.  Prior to appointing the 
visitation expeditor, the court shall give the parties notice 
that the costs of the visitation expeditor will be apportioned 
among the parties and that if the parties do not reach an 
agreement, the visitation expeditor will make a nonbinding 
decision resolving the dispute. 
    (b) For purposes of this section, "visitation dispute" 
means a disagreement among parties about visitation with a 
child.  "Visitation dispute" includes a claim by a custodial 
parent that a noncustodial parent is not visiting a child as 
well as a claim by a noncustodial parent that a custodial parent 
is denying or interfering with visitation. 
    Subd. 2.  [APPOINTMENT; COSTS.] The court shall appoint the 
visitation expeditor.  If the parties cannot agree on a 
visitation expeditor, the court shall present a list of 
candidates with one more candidate than there are parties to the 
dispute.  In developing the list of candidates, the court must 
give preference to persons who agree to volunteer their 
services.  Each party shall strike one name and the court shall 
appoint the remaining individual as the visitation expeditor.  
In its order appointing the visitation expeditor, the court 
shall apportion the costs of the visitation expeditor among the 
parties, with each party bearing the portion of costs that the 
court determines is just and equitable under the circumstances.  
    Subd. 3.  [AGREEMENT OR DECISION.] (a) If a visitation 
dispute arises, the visitation expeditor shall meet with the 
parties within five days and make a diligent effort to 
facilitate an agreement to resolve the visitation dispute.  
    (b) If the parties do not reach an agreement, the expeditor 
shall make a decision resolving the dispute as soon as 
possible.  If a party does not comply with an agreement of the 
parties or a decision of the expeditor, any party may bring a 
motion with the court to resolve the dispute.  The court may 
consider the agreement of the parties or the decision of the 
expeditor, but neither is binding on the court. 
    Subd. 4.  [OTHER AGREEMENTS.] This section does not 
preclude the parties from voluntarily agreeing to submit their 
visitation dispute to a neutral third party. 
    Sec. 7.  Minnesota Statutes 1988, section 518.552, is 
amended by adding a subdivision to read: 
     Subd. 5.  [PRIVATE AGREEMENTS.] The parties may expressly 
preclude or limit modification of maintenance through a 
stipulation, if the court makes specific findings that the 
stipulation is fair and equitable, is supported by consideration 
described in the findings, and that full disclosure of each 
party's financial circumstances has occurred.  The stipulation 
must be made a part of the judgment and decree. 
    Sec. 8.  Minnesota Statutes 1988, section 518.58, 
subdivision 1, is amended to read: 
    Subdivision 1.  [GENERAL.] Upon a dissolution of a 
marriage, an annulment, or in a proceeding for disposition of 
property following a dissolution of marriage by a court which 
lacked personal jurisdiction over the absent spouse or lacked 
jurisdiction to dispose of the property and which has since 
acquired jurisdiction, the court shall make a just and equitable 
division of the marital property of the parties without regard 
to marital misconduct, after making findings regarding the 
division of the property.  The court shall base its findings on 
all relevant factors including the length of the marriage, any 
prior marriage of a party, the age, health, station, occupation, 
amount and sources of income, vocational skills, employability, 
estate, liabilities, needs, opportunity for future acquisition 
of capital assets, and income of each party.  The court shall 
also consider the contribution of each in the acquisition, 
preservation, depreciation or appreciation in the amount or 
value of the marital property, as well as the contribution of a 
spouse as a homemaker.  It shall be conclusively presumed that 
each spouse made a substantial contribution to the acquisition 
of income and property while they were living together as 
husband and wife.  The court may also award to either spouse the 
household goods and furniture of the parties, whether or not 
acquired during the marriage.  The court shall value marital 
assets for purposes of division between the parties as of the 
day of the proceeding for dissolution or annulment is 
commenced initially scheduled prehearing settlement conference, 
unless a different date is agreed upon by the parties, or unless 
the court finds makes specific findings that the parties 
subsequently made a good faith reconciliation, in which case the 
court may establish the valuation date as of the date the 
reconciliation ended.  Within 60 days after a proceeding for 
dissolution or annulment is commenced, unless the time is 
extended either by agreement of the parties or by order of the 
court for good cause shown, each party shall serve and file a 
verified statement identifying all assets, marital and 
nonmarital, the values of the assets and the basis for the 
values, and disclosing all liabilities of the parties another 
date of valuation is fair and equitable.  If there is a 
substantial change in value of an asset between the date of 
valuation and the final distribution, the court may adjust the 
valuation of that asset as necessary to effect an equitable 
distribution.  During the pendency of a marriage dissolution or 
annulment proceeding, each party owes a fiduciary duty to the 
other for any profit or loss derived by the party, without 
consent of the other, from a transaction or from any use by the 
party of the marital assets. 
    Sec. 9.  [EFFECTIVE DATE.] 
    Section 1 is effective the day following final enactment. 
    Presented to the governor May 22, 1989 
    Signed by the governor May 25, 1989, 5:33 p.m.