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1986 Minnesota Session Laws

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                         Laws of Minnesota 1986 

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

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