Office of the Revisor of Statutes
Minnesota Session Laws - 1990, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1990
CHAPTER 574-H.F.No. 1855
An act relating to family law; regulating child
support, custody and visitation in dissolution and
other proceedings; providing for suspension of
visitation rights or change of custody when a parent
has been convicted of certain crimes; requiring
expedited hearings of visitation motions alleging that
a child is in danger of harm and providing for
supervised or restricted visitation; modifying
dissolution statistical reporting requirements;
modifying standards for joint legal custody; requiring
specific findings supporting joint custody in certain
cases; requiring certain findings about taxes;
providing for the award of temporary attorney fees;
providing for funding of legal representation in
family law matters; increasing marriage dissolution
filing fees and civil filing fees surcharge;
appropriating money; amending Minnesota Statutes 1988,
sections 144.224; 257.025; 257.541, subdivision 2;
518.003, subdivision 3, and by adding a subdivision;
518.131, subdivisions 1 and 7; 518.14; 518.156;
518.167, subdivision 2; 518.18; 518.551, subdivision
5; 518.57, subdivision 1; 518.619; Minnesota Statutes
1989 Supplement, sections 357.021, subdivision 2;
480.241, subdivision 1; 518.17, subdivisions 1 and 2;
518.175, subdivision 5; and 518.64, subdivision 2;
proposing coding for new law in Minnesota Statutes,
chapters 518; and 631.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1988, section 144.224, is
amended to read:
144.224 [REPORTS OF DISSOLUTION AND ANNULMENT OF MARRIAGE.]
Each month the court administrator shall forward to the
commissioner of health the statistical report forms collected
pursuant to section 518.147 during the preceding month. The
report form shall include only the following information:
(a) name, date of birth, birthplace, residence, race, and
educational attainment of the husband and wife;
(b) county of decree;
(c) date and type of decree;
(d) place and date of marriage;
(e) date of separation;
(f) number and ages of children of marriage;
(g) amount and status of maintenance and child support;
(h) custody of children, including whether joint legal or
physical custody was awarded;
(i) income of the parties;
(j) length of separation and length of marriage; and
(k) number of previous marriages and reasons for ending the
previous marriages (death, dissolution, or annulment).
The commissioner may publish data collected under this
section in summary form only. The statistical report form shall
contain a statement that neither the report form, nor
information contained in the form, shall be admissible in
evidence in this or any subsequent proceeding.
Sec. 2. Minnesota Statutes 1988, section 257.025, is
amended to read:
257.025 [CUSTODY DISPUTES.]
(a) In any proceeding where two or more parties seek
custody of a child the court shall determine the best interests
of the child by considering and evaluating consider and evaluate
all relevant factors in determining the best interests of the
child, including the following factors:
(a) The love, affection and other emotional ties existing
between the competing parties and the child;
(b) The capacity and disposition of competing parties to
give the child love, affection and guidance and continuation of
the educating and raising of the child in its religion, creed,
if any, or culture;
(c) The capacity and disposition of competing parties to
provide the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws of this
state in lieu of medical care, and other material needs;
(d) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(e) The permanence, as a family unit, of the existing or
proposed custodial home;
(f) The mental and physical health of the competing
parties;
(g) The home, school and community record of the child;
(h) The cultural background of the child;
(i) The reasonable preference of the child, if the court
deems the child to be of sufficient age to express preference;
(j) Any other factor considered by the court to be relevant
to a particular child custody dispute.
(1) the wishes of the party or parties as to custody;
(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 party and
the child;
(5) the interaction and interrelationship of the child with
a party or parties, siblings, and any other person who may
significantly affect the child's best interests;
(6) the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(8) the permanence, as a family unit, of the existing or
proposed custodial home;
(9) the mental and physical health of all individuals
involved;
(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, religion
or creed, if any;
(11) the child's cultural background; and
(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 or the parties.
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 fact that the parents of the child are not or were
never married to each other shall not be determinative of the
custody of the child.
(c) The court shall not consider conduct of a proposed
custodian that does not affect the custodian's relationship to
the child.
(d) The court shall consider evidence of a violation of
section 609.507 in determining the best interests of the child.
(e) A person may seek custody of a child by filing a
petition or motion pursuant to section 518.156.
(f) Section 518.619 applies to this section.
Sec. 3. Minnesota Statutes 1988, section 257.541,
subdivision 2, is amended to read:
Subd. 2. [FATHER'S RIGHT TO VISITATION.] (a) If paternity
has been acknowledged under section 257.34 and paternity has
been established under sections 257.51 to 257.74, the father's
rights of visitation or custody are determined under sections
518.17 and 518.175.
(b) If paternity has not been acknowledged under section
257.34 and paternity has been established under sections 257.51
to 257.74, the biological father may petition for rights of
visitation or custody in the paternity proceeding or in a
separate proceeding under section 518.156.
Sec. 4. Minnesota Statutes 1989 Supplement, section
357.021, subdivision 2, is amended to read:
Subd. 2. [FEE AMOUNTS.] The fees to be charged and
collected by the court administrator shall be as follows:
(1) In every civil action or proceeding in said court, the
plaintiff, petitioner, or other moving party shall pay, when the
first paper is filed for that party in said action, a fee of
$55, except that in an action for marriage dissolution, the fee
is $75 $85.
The defendant or other adverse or intervening party, or any
one or more of several defendants or other adverse or
intervening parties appearing separately from the others, shall
pay, when the first paper is filed for that party in said
action, a fee of $55, except that in an action for marriage
dissolution, the fee for the respondent is $75 $85.
The party requesting a trial by jury shall pay $30.
The fees above stated shall be the full trial fee
chargeable to said parties irrespective of whether trial be to
the court alone, to the court and jury, or disposed of without
trial, and shall include the entry of judgment in the action,
but does not include copies or certified copies of any papers so
filed or proceedings under sections 106A.005 to 106A.811, except
the provisions therein as to appeals.
(2) Certified copy of any instrument from a civil or
criminal proceeding $5, plus 25 cents per page after the first
page and $3.50, plus 25 cents per page after the first page for
an uncertified copy.
(3) Issuing a subpoena $3 for each name.
(4) Issuing an execution and filing the return thereof;
issuing a writ of attachment, injunction, habeas corpus,
mandamus, quo warranto, certiorari, or other writs not
specifically mentioned, $5.
(5) Issuing a transcript of judgment, or for filing and
docketing a transcript of judgment from another court, $5.
(6) Filing and entering a satisfaction of judgment, partial
satisfaction or assignment of judgment, $5.
(7) Certificate as to existence or nonexistence of
judgments docketed, $1 for each name certified to and $3 for
each judgment certified to.
(8) Filing and indexing trade name; or recording notary
commission; or recording basic science certificate; or recording
certificate of physicians, osteopaths, chiropractors,
veterinarians or optometrists, $5.
(9) For the filing of each partial, final, or annual
account in all trusteeships, $10.
(10) All other services required by law for which no fee is
provided such fee as compares favorably with those herein
provided, or such as may be fixed by rule or order of the court.
Sec. 5. Minnesota Statutes 1989 Supplement, section
480.241, subdivision 1, is amended to read:
Subdivision 1. [AMOUNT OF SURCHARGE; COLLECTION BY COURT
ADMINISTRATORS.] A plaintiff, petitioner, defendant, respondent,
intervenor or moving party in any trial court civil action or
civil proceeding in which an initial filing fee is payable by
that party, except a marriage dissolution or conciliation court
action, shall pay to the court administrator a surcharge
of $25 $30 in addition to the initial filing fee otherwise
prescribed. A plaintiff, defendant, or moving party in any
conciliation court action in which an initial filing fee is
payable shall pay to the court administrator of conciliation
court a surcharge of $3 in addition to the initial filing fee
otherwise prescribed. Notwithstanding any other law or rule to
the contrary, no surcharge shall be paid by any governmental
unit of the state of Minnesota, any local unit of government, or
agency thereof.
Sec. 6. Minnesota Statutes 1988, section 518.003,
subdivision 3, is amended to read:
Subd. 3. [CUSTODY.] Unless otherwise agreed by the parties:
(a) "Legal custody" means the right to determine the
child's upbringing, including education, health care and
religious training.
(b) "Joint legal custody" means that both parents have
equal rights and responsibilities, including the right to
participate in major decisions determining the child's
upbringing, including education, health care and religious
training.
(c) "Physical custody and residence" means the routine
daily care and control and the residence of the child.
(d) "Joint physical custody" means that the routine daily
care and control and the residence of the child is structured
between the parties.
(e) Wherever used in this chapter, the term "custodial
parent" or "custodian" means the person who has the physical
custody of the child at any particular time.
(f) "Custody determination" means a court decision and
court orders and instructions providing for the custody of a
child, including visitation rights, but does not include a
decision relating to child support or any other monetary
obligation of any person.
(g) "Custody proceeding" includes proceedings in which a
custody determination is one of several issues, such as an
action for dissolution, divorce or separation, and includes
proceedings involving children who are in need of protection or
services, domestic abuse, and paternity.
Sec. 7. Minnesota Statutes 1988, section 518.003, is
amended by adding a subdivision to read:
Subd. 4. [MEDIATION.] "Mediation" means a process in which
an impartial third party facilitates an agreement between two or
more parties in a proceeding.
Sec. 8. Minnesota Statutes 1988, section 518.131,
subdivision 1, is amended to read:
Subdivision 1. In a proceeding brought for custody,
dissolution, or legal separation, or for disposition of
property, maintenance, or child support following the
dissolution of a marriage, either party may, by motion, request
from the court and the court may grant a temporary order pending
the final disposition of the proceeding to or for:
(a) Temporary custody and visitation rights of the minor
children of the parties;
(b) Temporary maintenance of either spouse;
(c) Temporary child support for the children of the
parties;
(d) Temporary costs and reasonable attorney fees;
(e) Award the temporary use and possession, exclusive or
otherwise, of the family home, furniture, household goods,
automobiles and other property of the parties;
(e) (f) 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;
(f) (g) Restrain one or both parties from harassing,
vilifying, mistreating, molesting, disturbing the peace, or
restraining the liberty of the other party or the children of
the parties;
(g) (h) Restrain one or both parties from removing any
minor child of the parties from the jurisdiction of the court;
(h) (i) Exclude a party from the family home of the parties
or from the home of the other party; and
(i) (j) Require one or both of the parties to perform or to
not perform such additional acts as will facilitate the just and
speedy disposition of the proceeding, or will protect the
parties or their children from physical or emotional harm.
Sec. 9. Minnesota Statutes 1988, section 518.131,
subdivision 7, is amended to read:
Subd. 7. The court shall be guided by the factors set
forth in sections 518.551 (concerning child support), 518.552
(concerning maintenance) and, 518.17 to 518.175 (concerning
custody and visitation), and 518.14 (concerning costs and
attorney fees) in making temporary orders and restraining orders.
Sec. 10. Minnesota Statutes 1988, section 518.14, is
amended to read:
518.14 [COSTS AND DISBURSEMENTS AND ATTORNEY FEES.]
In a proceeding brought either for dissolution or legal
separation under this chapter, the court, from time to time,
after considering the financial resources of both parties, may
require one party to pay a reasonable amount necessary to enable
the other spouse to carry on or to contest the proceeding, and
to pay attorney's fees, including sums for legal services
rendered and costs incurred prior to the commencement or after
entry of judgment. In a proceeding under this chapter, the
court shall award attorney fees, costs, and disbursements in an
amount necessary to enable a party to carry on or contest the
proceeding, provided it finds:
(1) that the fees are necessary for the good-faith
assertion of the party's rights in the proceeding and will not
contribute unnecessarily to the length and expense of the
proceeding;
(2) that the party from whom fees, costs, and disbursements
are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements
are awarded does not have the means to pay them.
Nothing in this section precludes the court from awarding, in
its discretion, additional fees, costs, and disbursements
against a party who unreasonably contributes to the length or
expense of the proceeding. Fees, costs, and disbursements
provided for in this section may be awarded at any point in the
proceeding. The court may adjudge costs and disbursements
against either party. The court may authorize the collection of
money awarded by execution, or out of property sequestered, or
in any other manner within the power of the court. An award of
attorney's fees made by the court during the pendency of the
proceeding or in the final judgment survives the proceeding and
if not paid by the party directed to pay the same may be
enforced as above provided or by a separate civil action brought
in the attorney's own name. If the proceeding is dismissed or
abandoned prior to determination and award of attorney's fees,
the court may nevertheless award attorney's fees upon the
attorney's motion. The award shall also survive the proceeding
and may be enforced in the same manner as last above provided.
Sec. 11. Minnesota Statutes 1988, section 518.156, is
amended to read:
518.156 [COMMENCEMENT OF CUSTODY PROCEEDING.]
Subdivision 1. In a court of this state which has
jurisdiction to decide child custody matters, a child custody
proceeding is commenced:
(a) By a parent
(1) By filing a petition for dissolution or legal
separation; or
(2) Where a decree of dissolution or legal separation has
been entered or where none is sought, by filing a petition or
motion seeking custody or visitation of the child in the county
where the child is permanently resident or where the child is
found or where an earlier order for custody of the child has
been entered; or
(b) By a person other than a parent, where a decree of
dissolution or legal separation has been entered or where none
is sought by filing a petition or motion seeking custody or
visitation of the child in the county where the child is
permanently resident or where the child is found or where an
earlier order for custody of the child has been entered.
Subd. 2. Written notice of a child custody or visitation
proceeding shall be given to the child's parent, guardian and
custodian, who may appear and be heard and may file a responsive
pleading. The court may, upon a showing of good cause, permit
the intervention of other interested parties.
Sec. 12. Minnesota Statutes 1988, section 518.167,
subdivision 2, is amended to read:
Subd. 2. [PREPARATION.] (a) In preparing a report
concerning a child, the investigator may consult any person who
may have information about the child and the potential custodial
arrangements except for persons involved in mediation efforts
between the parties. Mediation personnel may disclose to
investigators and evaluators information collected during
mediation only if agreed to in writing by all parties. Upon
order of the court, the investigator may refer the child to
professional personnel for diagnosis. The investigator may
consult with and obtain information from medical, psychiatric,
school personnel, or other expert persons who have served the
child in the past after obtaining the consent of the parents or
the child's custodian or guardian.
(b) The report submitted by the investigator must consider
and evaluate the factors in section 518.17, subdivision 1, and
include a detailed analysis of all information considered for
each factor. If joint custody is contemplated or sought, the
report must consider and evaluate the factors in section 518.17,
subdivision 2, state the position of each party and the
investigator's recommendation and the reason for the
recommendation, and reference established means for dispute
resolution between the parties.
Sec. 13. Minnesota Statutes 1989 Supplement, 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:
(1) the wishes of the child's parent or parents as to
custody;
(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;
(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;
(6) the child's adjustment to home, school, and community;
(7) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(8) the permanence, as a family unit, of the existing or
proposed custodial home;
(9) the mental and physical health of all individuals
involved;
(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;
(11) the child's cultural background; and
(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 primary caretaker factor may not be used as a
presumption in determining the best interests of the child. 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. 14. Minnesota Statutes 1989 Supplement, 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;
(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. However, the court shall use a
rebuttable presumption that joint legal custody is not in the
best interests of the child if domestic abuse, as defined in
section 518B.01, has occurred between the parents.
If the court awards joint legal or physical custody over
the objection of a party, the court shall make detailed findings
on each of the factors in this subdivision and explain how the
factors led to its determination that joint custody would be in
the best interests of the child.
Sec. 15. Minnesota Statutes 1989 Supplement, section
518.175, subdivision 5, is amended to read:
Subd. 5. The court shall modify an order granting or
denying visitation rights whenever modification would serve the
best interests of the child, but the court shall. Except as
provided in section 23, the court may not restrict 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 or child 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 or child from harm.
Sec. 16. [518.179] [CUSTODY OR VISITATION WHEN PERSON
CONVICTED OF CERTAIN OFFENSES.]
Subdivision 1. [SEEKING CUSTODY OR VISITATION.]
Notwithstanding any contrary provision in section 518.17 or
518.175, if a person seeking child custody or visitation has
been convicted of a crime described in subdivision 2, the person
seeking custody or visitation has the burden to prove that
custody or visitation by that person is in the best interests of
the child if:
(1) the conviction occurred within the preceding five
years;
(2) the person is currently incarcerated, on probation, or
under supervised release for the offense; or
(3) the victim of the crime was a family or household
member as defined in section 518B.01, subdivision 2.
If this section applies, the court may not grant custody or
visitation to the person unless it finds that the custody or
visitation is in the best interests of the child. If the victim
of the crime was a family or household member, the standard of
proof is clear and convincing evidence.
Subd. 2. [APPLICABLE CRIMES.] This section applies to the
following crimes or similar crimes under the laws of the United
States, or any other state:
(1) murder in the first, second, or third degree under
section 609.185, 609.19, or 609.195;
(2) manslaughter in the first degree under section 609.20;
(3) assault in the first, second, or third degree under
section 609.221, 609.222, or 609.223;
(4) kidnapping under section 609.25;
(5) depriving another of custodial or parental rights under
section 609.26;
(6) soliciting, inducing, or promoting prostitution
involving a minor under section 609.322;
(7) receiving profit from prostitution involving a minor
under section 609.323;
(8) criminal sexual conduct in the first degree under
section 609.342;
(9) criminal sexual conduct in the second degree under
section 609.343;
(10) criminal sexual conduct in the third degree under
section 609.344, subdivision 1, paragraph (c), (f), or (g);
(11) solicitation of a child to engage in sexual conduct
under section 609.352;
(12) incest under section 609.365;
(13) malicious punishment of a child under section 609.377;
or
(14) neglect of a child under section 609.378.
Sec. 17. Minnesota Statutes 1988, 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 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 clause (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 clause (c).
(c) The time limitations prescribed in clauses (a) and (b)
shall not prohibit a motion to modify a custody order if the
court finds that there is persistent and willful denial or
interference with visitation, 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 unless it finds, upon the basis of facts 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 custodian and that the
modification is necessary to serve the best interests of the
child. In applying these standards the court shall retain the
custodian established by the prior order unless:
(i) The custodian agrees to the modification;
(ii) The child has been integrated into the family of the
petitioner with the consent of the custodian; or
(iii) 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.
In addition, a court may modify a custody order under
section 23.
Sec. 18. Minnesota Statutes 1988, 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 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 determine and order
child support in a specific dollar amount in accordance with the
guidelines and the other factors set forth in paragraph (b) and
any departure therefrom.
The court shall multiply derive a specific dollar amount by
multiplying 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- 4000 25% 30% 35% 39% 43% 47% 50%
Guidelines for support for an obligor with a monthly income
of $4,001 or more shall be the same dollar amounts as provided
for in the guidelines for an obligor with a monthly income of
$4,000.
Net Income defined as:
Total monthly
income less *(i) Federal Income Tax
*(ii) State Income Tax
(iii) Social Security
Deductions
(iv) Reasonable
Pension Deductions
*Standard
Deductions apply- (v) Union Dues
use of tax tables (vi) Cost of Dependent
recommended Insurance Coverage
(vii) Cost of Individual or Group
Health/Hospitalization
Coverage or an
Amount for Actual
Medical Expenses
(viii) A Child Support or
Maintenance Order that is
Currently Being Paid.
"Net income" does not include:
(1) the income of the obligor's spouse; or
(2) compensation received by a party for employment in
excess of a 40-hour work week, provided that:
(a) support is nonetheless ordered in an amount at least
equal to the guidelines amount based on income not excluded
under this clause; and
(b) the party demonstrates, and the court finds, that:
(i) the excess employment began after the filing of the
petition for dissolution;
(ii) the excess employment reflects an increase in the work
schedule or hours worked over that of the two years immediately
preceding the filing of the petition;
(iii) the excess employment is voluntary and not a
condition of employment;
(iv) the excess employment is in the nature of additional,
part-time or overtime employment compensable by the hour or
fraction of an hour; and
(v) the party's compensation structure has not been changed
for the purpose of affecting a support or maintenance obligation.
(b) In addition to the child support guidelines, the court
shall take into consideration the following factors in setting
or modifying child support:
(1) all earnings, income, and resources of the parents,
including real and personal property, but excluding income from
excess employment of the obligor or obligee that meets the
criteria of paragraph (a), clause (2)(b);
(2) the financial needs and resources, physical and
emotional condition, and educational needs of the child or
children to be supported;
(3) the standards of living the child would have enjoyed
had the marriage not been dissolved, but recognizing that the
parents now have separate households;
(4) the amount of the aid to families with dependent
children grant for the child or children;
(5) which parent receives the income taxation dependency
exemption and what financial benefit the parent receives from
it; and
(6) the parents' debts as provided in paragraph (c).
(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 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.
Any schedule prepared under paragraph (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.
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.
(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.
Sec. 19. Minnesota Statutes 1988, section 518.57,
subdivision 1, is amended to read:
Subdivision 1. [ORDER.] Upon a decree of dissolution,
legal separation or annulment, the court may shall make a
further order which is just and proper concerning the
maintenance of the minor children as provided by section
518.551, 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.
Sec. 20. [518.583] [NOTICE OF TAX EFFECT ON PRINCIPAL
RESIDENCE.]
If the parties to an action for dissolution own a principal
residence, the court must make express findings of fact that the
parties who are represented by an attorney have been advised as
to the income tax laws respecting the capital gain tax, or that
parties who are not represented by an attorney have been
notified that income tax laws regarding the capital gain tax may
apply to the sale of the residence. This includes, but is not
limited to, the exclusion available on the sale of a principal
residence for those over a certain age under section 121 of the
Internal Revenue Code of 1986, or other applicable law. The
order must expressly provide for the use of that exclusion
unless the court otherwise orders. All judgment and decrees
involving a principal residence must include a notice to the
parties that income tax laws regarding the capital gain tax may
apply to the sale of the residence and that the parties may wish
to consult with an attorney concerning the applicable laws.
Sec. 21. Minnesota Statutes 1988, section 518.619, is
amended to read:
518.619 [CONTESTED CUSTODY OR VISITATION; 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 or visitation is contested,
or that any issue pertinent to a custody or visitation
determination, including visitation rights, is unresolved, the
matter may be set for mediation of the contested issue prior
to or, concurrent with, or subsequent to the setting of 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 that
is supportive of the child's best interests. The mediator shall
use best efforts to effect a settlement of the custody or
visitation dispute, but shall have no coercive authority.
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 or refer the parties to
mediation or any other process that requires parties to meet and
confer without counsel, if any, present.
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 not 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. An agreement reached by the
parties as a result of mediation may not be presented to the
court nor made enforceable unless the parties and their counsel,
if any, consent to its presentation to the court, and the court
adopts the agreement.
Sec. 22. Minnesota Statutes 1989 Supplement, section
518.64, subdivision 2, is amended to read:
Subd. 2. [MODIFICATION.] (a) 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.
(b) 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:
(1) shall take into consideration the needs of the children
and shall not consider the financial circumstances of each
party's spouse, if any; and
(2) shall not consider compensation received by a party for
employment in excess of a 40-hour work week, provided that the
party demonstrates, and the court finds, that:
(i) the excess employment began after entry of the existing
support order;
(ii) the excess employment is voluntary and not a condition
of employment;
(iii) the excess employment is in the nature of additional,
part-time employment, or overtime employment compensable by the
hour or fractions of an hour;
(iv) the party's compensation structure has not been
changed for the purpose of affecting a support or maintenance
obligation;
(v) in the case of an obligor, current child support
payments are at least equal to the guidelines amount based on
income not excluded under this clause; and
(vi) in the case of an obligor who is in arrears in child
support payments to the obligee, any net income from excess
employment must be used to pay the arrearages until the
arrearages are paid in full.
(c) A modification of support or maintenance may be made
retroactive only with respect to any period during which the
petitioning party has pending a motion for modification but only
from the date of service of notice of the motion on the
responding party. However, modification may be applied to an
earlier period if the court makes express findings that the
party seeking modification was precluded from serving a motion
by reason of a significant physical or mental disability or a
material misrepresentation of another party and that the party
seeking modification, when no longer precluded, promptly served
a motion.
(d) 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, including motions under section 518.145,
subdivision 2. 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. 23. [631.52] [EFFECT OF CERTAIN CONVICTIONS ON
CUSTODY AND VISITATION RIGHTS.]
Subdivision 1. [SUSPENSION OF VISITATION RIGHTS; TRANSFER
OF CUSTODY.] (a) If a person who has court-ordered custody of a
child or visitation rights is convicted of a crime listed in
subdivision 2 and if no action is pending regarding custody or
visitation, the sentencing court shall refer the matter to the
appropriate family court for action under this section. The
family court shall:
(1) grant temporary custody to the noncustodial parent,
unless it finds that another custody arrangement is in the best
interests of the child; or
(2) suspend visitation rights, unless it finds that
visitation with the convicted person is in the best interests of
the child.
The family court shall expedite proceedings under this
section. The defendant has the burden of proving that continued
custody or visitation with the defendant is in the best
interests of the child. If the victim of the crime was a family
or household member as defined in section 518B.01, subdivision
2, the standard of proof is clear and convincing evidence.
(b) If a person who has child custody or visitation rights
was convicted of a crime listed in subdivision 2 before July 1,
1990, then any interested party may petition the sentencing
court for relief under paragraph (a) if:
(1) the defendant is currently incarcerated, on probation,
or under supervised release for the offense; or
(2) the victim of the crime was a family or household
member as defined in section 518B.01, subdivision 2.
Subd. 2. [APPLICATION.] Subdivision 1 applies to the
following crimes or similar crimes under the laws of the United
States or any other state:
(1) murder in the first, second, or third degree under
section 609.185, 609.19, or 609.195;
(2) manslaughter in the first degree under section 609.20;
(3) assault in the first, second, or third degree under
section 609.221, 609.222, or 609.223;
(4) kidnapping under section 609.25;
(5) depriving another of custodial or parental rights under
section 609.26;
(6) soliciting, inducing, or promoting prostitution
involving a minor under section 609.322;
(7) receiving profit from prostitution involving a minor
under section 609.323;
(8) criminal sexual conduct in the first degree under
section 609.342;
(9) criminal sexual conduct in the second degree under
section 609.343;
(10) criminal sexual conduct in the third degree under
section 609.344, subdivision 1, paragraph (c), (f), or (g);
(11) solicitation of a child to engage in sexual conduct
under section 609.352;
(12) incest under section 609.365;
(13) malicious punishment of a child under section 609.377;
or
(14) neglect of a child under section 609.378.
Sec. 24. [FEDERAL WAIVER.]
The department of human services shall seek from the
Congress of the United States or the United States Department of
Health and Human Services a change in or waiver of existing
requirements of the aid to families with dependent children
program (AFDC) to the extent necessary to allow the retroactive
modification of support or maintenance payments permitted by
section 22, paragraph (c). The attorney general shall prepare
the necessary documentation and request letter for the waiver
request.
Sec. 25. [APPROPRIATION.]
$890,000 is appropriated from the general fund to the
supreme court to be distributed under Minnesota Statutes,
section 480.242, to the qualified legal services programs
described in section 480.242, subdivision 2, paragraph (a), to
improve the access of low-income clients to legal representation
in family law matters.
Sec. 26. [EFFECTIVE DATE.]
Section 20 is effective August 1, 1990, and applies to
actions commenced on or after that date. The provisions of
section 22, paragraph (c), allowing retroactive modification of
support or maintenance payments in certain cases, are effective
July 1, 1991, provided that these provisions do not take effect
if a change in or waiver of the existing AFDC requirements is
not obtained under section 24.
Presented to the governor April 26, 1990
Signed by the governor May 3, 1990, 6:03 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes