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1990 Minnesota Session Laws

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.

700 State Office Building, 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155 ♦ Phone: (651) 296-2868 ♦ TTY: 1-800-627-3529 ♦ Fax: (651) 296-0569