Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2002, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 304-S.F.No. 2673
An act relating to family law; providing for custody
of children by de facto custodians and third parties;
making related technical changes; providing for
hearings on petitions for orders of protection;
providing for notice to law enforcement agencies of
continuance of order for protection; amending
Minnesota Statutes 2000, sections 518.156, subdivision
1; 518B.01, subdivisions 5, 7, 13; Minnesota Statutes
2001 Supplement, section 260C.201, subdivision 11;
proposing coding for new law as Minnesota Statutes,
chapter 257C; repealing Minnesota Statutes 2000,
section 518.158.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. [257C.01] [DEFINITIONS.]
Subdivision 1. [SCOPE.] The definitions in this section
apply to this chapter.
Subd. 2. [DE FACTO CUSTODIAN.] (a) "De facto custodian"
means an individual who has been the primary caretaker for a
child who has, within the 24 months immediately preceding the
filing of the petition, resided with the individual without a
parent present and with a lack of demonstrated consistent
participation by a parent for a period of:
(1) six months or more if the child is under three years of
age; or
(2) one year or more if the child is three years of age or
older.
(b) For purposes of the definition in this subdivision, any
period of time after a legal proceeding has been commenced and
filed must not be included in determining whether the child has
resided with the individual for the required minimum period.
(c) For purposes of the definition in this subdivision,
"lack of demonstrated consistent participation" by a parent
means refusal or neglect to comply with the duties imposed upon
the parent by the parent-child relationship, including, but not
limited to, providing the child necessary food, clothing,
shelter, health care, education, creating a nurturing and
consistent relationship, and other care and control necessary
for the child's physical, mental, or emotional health and
development.
(d) "De facto custodian" does not include an individual who
has a child placed in the individual's care:
(1) through a custody consent decree under section
257.0215;
(2) through a court order or voluntary placement agreement
under chapter 260C; or
(3) for adoption under chapter 259.
(e) A standby custody designation under chapter 257B is not
a designation of de facto custody unless that intent is
indicated within the standby custody designation.
Subd. 3. [INTERESTED THIRD PARTY.] (a) "Interested third
party" means an individual who is not a de facto custodian but
who can prove that at least one of the factors in section
257C.03, subdivision 7, paragraph (a) is met.
(b) "Interested third party" does not include an individual
who has a child placed in the individual's care:
(1) through a custody consent decree under section
257.0215;
(2) through a court order or voluntary placement under
chapter 260C; or
(3) for adoption under chapter 259.
Sec. 2. [257C.02] [APPLICATION OF OTHER LAW;
CONSTRUCTION.]
(a) Chapters 256, 257, and 518 and section 525.551 apply to
third-party and de facto custody proceedings unless otherwise
specified in this chapter. De facto or third-party child
custody proceedings concerning an Indian child are child custody
proceedings governed by the Indian Child Welfare Act, United
States Code, title 25, sections 1901 to 1963; the Minnesota
Indian Family Preservation Act, sections 260.751 to 260.835; and
by this chapter when not inconsistent with the Indian Child
Welfare Act or the Minnesota Indian Family Preservation Act.
(b) Nothing in this chapter relieves a parent of a duty to
support the parent's child. A preexisting child support order
is not suspended or terminated when a third party takes custody
of a child unless otherwise provided by court order. A de facto
or third-party custodian has a cause of action against a parent
for child support under section 256.87, subdivision 5, and the
public authority has a cause of action against a parent for
child support under section 256.87, subdivision 1.
(c) Nothing in this chapter prohibits the establishment of
parentage under chapter 257.
Sec. 3. [257C.03] [PROCEDURE.]
Subdivision 1. [COMMENCEMENT OF PROCEEDINGS.] (a) In a
court of this state with jurisdiction to decide child custody
matters, a de facto or third-party child custody proceeding may
be brought by an individual other than a parent by filing a
petition seeking custody in the county where:
(1) the child is permanently a resident, the child is
found, or an earlier order for custody of the child has been
entered; or
(2) the court has jurisdiction over the matter under
chapter 518D.
(b) The proceeding is commenced by personal service of the
summons and petition.
(c) An individual other than a parent who seeks visitation
under this section must qualify under one of the provisions of
section 257.022, and must comply with the provisions of this
subdivision to commence the proceeding.
Subd. 2. [REQUISITES OF PETITION OR MOTION.] (a) A
petition for custody filed under this section must state and
allege:
(1) the name and address of the petitioner and any prior or
other name used by the petitioner;
(2) the name and, if known, the address and social security
number of the respondent mother and father or guardian and any
prior or other name used by the respondent and known to the
petitioner;
(3) the name and date of birth of each child for whom
custody is sought;
(4) the relationship of the petitioner to each child for
whom custody is sought;
(5) the petitioner or petitioners' basis for jurisdiction
under section 257C.01, subdivision 2 or 3;
(6) the current legal and physical custodial status of each
child for whom custody is sought and a list of all prior orders
of custody, if known to the petitioner;
(7) whether any party is a member of the armed services;
(8) the length of time each child has resided with the
petitioner and has resided in the state of Minnesota;
(9) whether a separate proceeding for dissolution, legal
separation, or custody is pending in a court in this state or
elsewhere;
(10) whether a permanent or temporary standby custody
designation has been executed or filed in a court in this state
or elsewhere;
(11) whether a permanent or temporary standby custody
designee differs in identity from the de facto custodian and
reasons why the proposed de facto custodian should have
custodial priority over a designated standby custodian;
(12) whether parenting time should be granted to the
respondents;
(13) any temporary or permanent child support, attorney
fees, costs, and disbursements;
(14) whether an order of protection under chapter 518B or a
similar law of another state that governs the parties or a party
and a minor child of the parties is in effect and, if so, the
district court or similar jurisdiction in which it was entered;
and
(15) that it is in the best interests of the child under
section 257C.04 that the petitioner have custody of the child.
(b) The petition must be verified by the petitioner or
petitioners and its allegations established by competent
evidence.
Subd. 3. [WRITTEN NOTICE.] (a) Written notice of a hearing
on a petition to establish de facto or third-party custody of a
child must be given to:
(1) the parent of the child, if:
(i) the person's name appears on the child's birth
certificate as a parent;
(ii) the person has substantially supported the child;
(iii) the person either was married to the person
designated on the birth certificate as the natural mother within
the 325 days before the child's birth or married that person
within the ten days after the child's birth;
(iv) the person is openly living with the child or the
person designated on the birth certificate as the natural mother
of the child, or both;
(v) the person has been adjudicated the child's parent;
(vi) the person has filed a paternity action within 30 days
after the child's birth and the action is still pending; or
(vii) the person and the mother of the child signed a
declaration of parentage under section 257.34 before August 1,
1995, which has not been revoked, or a recognition of parentage
under section 257.75 which has not been revoked or vacated;
(2) the guardian or legal custodian, if any, of the child;
and
(3) the child's tribe pursuant to section 260.761,
subdivision 3, if the child is an Indian child.
(b) Notice under this section need not be given to a person
listed in this subdivision whose parental rights have been
terminated.
(c) Written notice of a hearing on a petition to establish
de facto or third-party custody of a child must be given to the
public authority if either parent receives public assistance,
the petitioner receives public assistance on behalf of the
child, or either parent receives child support enforcement
services from the public authority or applies for public
assistance or child support enforcement services from the public
authority after a petition under this section is filed. Notice
to the public authority must include a copy of the petition.
Subd. 4. [APPROVAL WITHOUT HEARING.] (a) Approval of an
order under this section without a hearing is permitted if both
parents consent by stipulation or agreement that it is in the
best interests of the child to be in the custody of the de facto
custodian or interested third party.
(b) If either parent receives public assistance, the
petitioner receives public assistance on behalf of the child, or
either parent receives child support enforcement services from
the public authority, the petitioner must notify the public
authority of the stipulation or agreement under this subdivision.
Subd. 5. [EMERGENCY OR TEMPORARY HEARINGS.] (a) The court
must be guided by the factors set forth in sections 518.131,
concerning temporary orders and restraining orders; 518.551,
concerning child support; 518.17 to 518.175, concerning custody
and parenting time; and 518.14, concerning costs and attorney
fees, in making temporary orders and restraining orders.
(b) The court may grant ex parte relief only if requested
by a motion with a properly executed supporting affidavit. The
affidavit must outline specific supporting facts as to why the
case needs to be expedited.
(c) The court shall grant ex parte or temporary relief if
the petitioner and situation fit the factors outlined for de
facto custodian or third-party custodian under section 257C.01,
subdivisions 2 and 3; and subdivisions 6 and 7 of this section.
(d) If the court orders temporary custody under this
subdivision, the de facto custodian or interested third party
shall seek temporary or permanent custody of the child pursuant
to a petition under this chapter and the other standards of this
chapter apply.
Subd. 6. [DE FACTO CUSTODIAN; BURDEN OF PROOF;
FACTORS.] (a) To establish that an individual is a de facto
custodian, the individual must:
(1) show by clear and convincing evidence that the
individual satisfies the provisions of section 257C.01,
subdivision 2; and
(2) prove by a preponderance of the evidence that it is in
the best interests of the child to be in the custody of the de
facto custodian.
(b) The following factors must be considered by the court
in determining a parent's lack of demonstrated consistent
participation for purposes of section 257C.01, subdivision 2:
(1) the intent of the parent or parents in placing the
child with the de facto custodian;
(2) the amount of involvement the parent had with the child
during the parent's absence;
(3) the facts and circumstances of the parent's absence;
(4) the parent's refusal to comply with conditions for
retaining custody set forth in previous court orders;
(5) whether the parent now seeking custody was previously
prevented from doing so as a result of domestic violence; and
(6) whether a sibling of the child is already in the
petitioner's care.
(c) In determining the best interests of the child, the
court must apply the standards in section 257C.04.
Subd. 7. [INTERESTED THIRD PARTY; BURDEN OF PROOF;
FACTORS.] (a) To establish that an individual is an interested
third party, the individual must:
(1) show by clear and convincing evidence that one of the
following factors exist:
(i) the parent has abandoned, neglected, or otherwise
exhibited disregard for the child's well-being to the extent
that the child will be harmed by living with the parent;
(ii) placement of the child with the individual takes
priority over preserving the day-to-day parent-child
relationship because of the presence of physical or emotional
danger to the child, or both; or
(iii) other extraordinary circumstances; and
(2) prove by a preponderance of the evidence that it is in
the best interests of the child to be in the custody of the
interested third party.
(b) The following factors must be considered by the court
in determining an interested third party's petition:
(1) the amount of involvement the interested third party
had with the child during the parent's absence or during the
child's lifetime;
(2) the amount of involvement the parent had with the child
during the parent's absence;
(3) the presence or involvement of other interested third
parties;
(4) the facts and circumstances of the parent's absence;
(5) the parent's refusal to comply with conditions for
retaining custody set forth in previous court orders;
(6) whether the parent now seeking custody was previously
prevented from doing so as a result of domestic violence;
(7) whether a sibling of the child is already in the care
of the interested third party; and
(8) the existence of a standby custody designation under
chapter 257B.
(c) In determining the best interests of the child, the
court must apply the standards in section 257C.04.
Subd. 8. [DISMISSAL OF PETITION.] (a) The court must
dismiss a petition for custody if the court finds that:
(1) the petitioner is not a de facto custodian as set forth
in section 257C.01, subdivision 2;
(2) the petitioner does not establish at least one of the
factors in subdivision 7, paragraph (a); or
(3) placement of the child with the petitioner is not in
the best interests of the child.
(b) If the court finds that a party cannot establish
factors for visitation under section 257.022, the court must
dismiss a petition for visitation.
Sec. 4. [257C.04] [BEST INTERESTS OF A CHILD.]
Subdivision 1. [CUSTODY FACTORS.] (a) If two or more
parties seek custody of a child, the court must consider and
evaluate all relevant factors in determining the best interests
of the child, including the following factors:
(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; except that a disability, as defined in section
363.01, subdivision 13, of a proposed custodian or the child
shall not be determinative of the custody of the child, unless
the proposed custodial arrangement is not in the best interests
of the child;
(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,
subdivision 2, that has occurred between the parents or the
parties.
(b) 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.
(c) The court must not give preference to a party over the
de facto custodian or interested third party solely because the
party is a parent of the child.
(d) The court must not prefer a parent over the de facto
custodian or third party custodian solely on the basis of the
gender of the parent, de facto custodian, or third party.
(e) The fact that the parents of the child are not or were
never married to each other must not be determinative of the
custody of the child.
(f) The court must consider evidence of a violation of
section 609.507 in determining the best interests of the child.
(g) The court must not consider conduct of a proposed
custodian that does not affect the custodian's relationship to
the child.
(h) Section 518.619 applies to actions under this section.
Subd. 2. [FACTORS WHEN JOINT CUSTODY IS SOUGHT.] (a) In
addition to the factors listed in subdivision 1, if either joint
legal or joint physical custody is contemplated or sought, the
court must consider the following relevant factors:
(1) the ability of the parties to cooperate in the rearing
of the child;
(2) methods for resolving disputes regarding any major
decision concerning the life of the child and the parties'
willingness to use those methods;
(3) whether it would be detrimental to the child if one
party were to have sole authority over the child's upbringing;
and
(4) whether domestic abuse, as defined in section 518B.01,
subdivision 2, has occurred between the parties.
(b) If the court awards joint legal or physical custody
over the objection of a party, the court must 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. 5. [257C.05] [DE FACTO AND THIRD PARTY CUSTODY
ORDERS.]
Subdivision 1. [CUSTODY ORDER.] In a child custody
proceeding under this chapter, the court must make any
additional order it considers just and proper concerning:
(1) the legal custody of a minor child, whether sole or
joint;
(2) the child's physical custody and residence;
(3) the quality and duration of parenting time and whether
it is supervised or unsupervised;
(4) child support as determined under section 518.551; and
(5) other matters reasonably affecting the best interests
of the child.
Subd. 2. [ATTACHMENTS TO CUSTODY ORDER.] All de facto and
interested third party custody orders must include Form 3:
Appendix A under the Appendix of Forms in the Family Court
Procedure in General Rules of Practice. The court may also
notify the parties of the availability and uses of mediation.
Sec. 6. [257C.06] [MODIFICATION.]
The procedures in section 518.18 for modification of a
custody order also govern modification of an order under this
chapter.
Sec. 7. Minnesota Statutes 2001 Supplement, section
260C.201, subdivision 11, is amended to read:
Subd. 11. [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT
PLACEMENT DETERMINATION.] (a) Except for cases where the child
is in placement due solely to the child's developmental
disability or emotional disturbance, and where custody has not
been transferred to the responsible social services agency, and
the court finds compelling reasons under section 260C.007,
subdivision 8, the court shall conduct a hearing to determine
the permanent status of a child not later than 12 months after
the child is placed out of the home of the parent.
For purposes of this subdivision, the date of the child's
placement out of the home of the parent is the earlier of the
first court-ordered placement or 60 days after the date on which
the child has been voluntarily placed out of the home.
For purposes of this subdivision, 12 months is calculated
as follows:
(1) during the pendency of a petition alleging that a child
is in need of protection or services, all time periods when a
child is placed out of the home of the parent are cumulated;
(2) if a child has been placed out of the home of the
parent within the previous five years under one or more previous
petitions, the lengths of all prior time periods when the child
was placed out of the home within the previous five years are
cumulated. If a child under this clause has been out of the
home for 12 months or more, the court, if it is in the best
interests of the child and for compelling reasons, may extend
the total time the child may continue out of the home under the
current petition up to an additional six months before making a
permanency determination.
(b) Unless the responsible social services agency
recommends return of the child to the custodial parent or
parents, not later than 30 days prior to this hearing, the
responsible social services agency shall file pleadings in
juvenile court to establish the basis for the juvenile court to
order permanent placement of the child according to paragraph
(d). Notice of the hearing and copies of the pleadings must be
provided pursuant to section 260C.152. If a termination of
parental rights petition is filed before the date required for
the permanency planning determination and there is a trial under
section 260C.163 scheduled on that petition within 90 days of
the filing of the petition, no hearing need be conducted under
this subdivision.
(c) At the conclusion of the hearing, the court shall order
the child returned to the care of the parent or guardian from
whom the child was removed or order a permanent placement in the
child's best interests. The "best interests of the child" means
all relevant factors to be considered and evaluated. Transfer
of permanent legal and physical custody, termination of parental
rights, or guardianship and legal custody to the commissioner
through a consent to adopt are preferred permanency options for
a child who cannot return home.
(d) If the child is not returned to the home, the court
must order one of the following dispositions:
(1) permanent legal and physical custody to a relative in
the best interests of the child according to the following
conditions:
(i) an order for transfer of permanent legal and physical
custody to a relative shall only be made after the court has
reviewed the suitability of the prospective legal and physical
custodian;
(ii) in transferring permanent legal and physical custody
to a relative, the juvenile court shall follow the standards and
procedures applicable under this chapter and chapter
260, chapters 260 and 518, and the procedures set out in the
juvenile court rules;
(iii) an order establishing permanent legal and physical
custody under this subdivision must be filed with the family
court;
(iv) a transfer of legal and physical custody includes
responsibility for the protection, education, care, and control
of the child and decision making on behalf of the child;
(v) the social services agency may petition on behalf of
the proposed custodian bring a petition or motion naming a fit
and willing relative as a proposed permanent legal and physical
custodian. The commissioner of human services shall annually
prepare for counties information that must be given to proposed
custodians about their legal rights and obligations as
custodians together with information on financial and medical
benefits for which the child is eligible; and
(vi) the juvenile court may maintain jurisdiction over the
responsible social services agency, the parents or guardian of
the child, the child, and the permanent legal and physical
custodian for purposes of ensuring appropriate services are
delivered to the child and permanent legal custodian or for the
purpose of ensuring conditions ordered by the court related to
the care and custody of the child are met;
(2) termination of parental rights according to the
following conditions:
(i) unless the social services agency has already filed a
petition for termination of parental rights under section
260C.307, the court may order such a petition filed and all the
requirements of sections 260C.301 to 260C.328 remain applicable;
and
(ii) an adoption completed subsequent to a determination
under this subdivision may include an agreement for
communication or contact under section 259.58;
(3) long-term foster care according to the following
conditions:
(i) the court may order a child into long-term foster care
only if it finds compelling reasons that neither an award of
permanent legal and physical custody to a relative, nor
termination of parental rights is in the child's best interests;
and
(ii) further, the court may only order long-term foster
care for the child under this section if it finds the following:
(A) the child has reached age 12 and reasonable efforts by
the responsible social services agency have failed to locate an
adoptive family for the child; or
(B) the child is a sibling of a child described in subitem
(A) and the siblings have a significant positive relationship
and are ordered into the same long-term foster care home;
(4) foster care for a specified period of time according to
the following conditions:
(i) foster care for a specified period of time may be
ordered only if:
(A) the sole basis for an adjudication that the child is in
need of protection or services is the child's behavior;
(B) the court finds that foster care for a specified period
of time is in the best interests of the child; and
(C) the court finds compelling reasons that neither an
award of permanent legal and physical custody to a relative, nor
termination of parental rights is in the child's best interests;
(ii) the order does not specify that the child continue in
foster care for any period exceeding one year; or
(5) guardianship and legal custody to the commissioner of
human services under the following procedures and conditions:
(i) there is an identified prospective adoptive home that
has agreed to adopt the child and the court accepts the parent's
voluntary consent to adopt under section 259.24;
(ii) if the court accepts a consent to adopt in lieu of
ordering one of the other enumerated permanency dispositions,
the court must review the matter at least every 90 days. The
review will address the reasonable efforts of the agency to
achieve a finalized adoption;
(iii) a consent to adopt under this clause vests all legal
authority regarding the child, including guardianship and legal
custody of the child, with the commissioner of human services as
if the child were a state ward after termination of parental
rights;
(iv) the court must forward a copy of the consent to adopt,
together with a certified copy of the order transferring
guardianship and legal custody to the commissioner, to the
commissioner; and
(v) if an adoption is not finalized by the identified
prospective adoptive parent within 12 months of the execution of
the consent to adopt under this clause, the commissioner of
human services or the commissioner's delegate shall pursue
adoptive placement in another home unless the commissioner
certifies that the failure to finalize is not due to either an
action or a failure to act by the prospective adoptive parent.
(e) In ordering a permanent placement of a child, the court
must be governed by the best interests of the child, including a
review of the relationship between the child and relatives and
the child and other important persons with whom the child has
resided or had significant contact.
(f) Once a permanent placement determination has been made
and permanent placement has been established, further court
reviews are necessary if:
(1) the placement is long-term foster care or foster care
for a specified period of time;
(2) the court orders further hearings because it has
retained jurisdiction of a transfer of permanent legal and
physical custody matter;
(3) an adoption has not yet been finalized; or
(4) there is a disruption of the permanent or long-term
placement.
(g) Court reviews of an order for long-term foster care,
whether under this section or section 260C.317, subdivision 3,
paragraph (d), or foster care for a specified period of time
must be conducted at least yearly and must review the child's
out-of-home placement plan and the reasonable efforts of the
agency to:
(1) identify a specific long-term foster home for the child
or a specific foster home for the time the child is specified to
be out of the care of the parent, if one has not already been
identified;
(2) support continued placement of the child in the
identified home, if one has been identified;
(3) ensure appropriate services are provided to the child
during the period of long-term foster care or foster care for a
specified period of time;
(4) plan for the child's independence upon the child's
leaving long-term foster care living as required under section
260C.212, subdivision 1; and
(5) where placement is for a specified period of time, a
plan for the safe return of the child to the care of the parent.
(h) An order under this subdivision must include the
following detailed findings:
(1) how the child's best interests are served by the order;
(2) the nature and extent of the responsible social service
agency's reasonable efforts, or, in the case of an Indian child,
active efforts to reunify the child with the parent or parents;
(3) the parent's or parents' efforts and ability to use
services to correct the conditions which led to the out-of-home
placement; and
(4) whether the conditions which led to the out-of-home
placement have been corrected so that the child can return home.
(i) An order for permanent legal and physical custody of a
child may be modified under sections 518.18 and 518.185. The
social services agency is a party to the proceeding and must
receive notice. A parent may only seek modification of an order
for long-term foster care upon motion and a showing by the
parent of a substantial change in the parent's circumstances
such that the parent could provide appropriate care for the
child and that removal of the child from the child's permanent
placement and the return to the parent's care would be in the
best interest of the child.
(j) The court shall issue an order required under this
section within 15 days of the close of the proceedings. The
court may extend issuing the order an additional 15 days when
necessary in the interests of justice and the best interests of
the child.
Sec. 8. Minnesota Statutes 2000, section 518.156,
subdivision 1, is amended to read:
Subdivision 1. [PROCEDURE.] 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, or when paternity has been
recognized under section 257.75, by filing a petition or motion
seeking custody or parenting time with 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. A
person seeking visitation pursuant to this paragraph must
qualify under one of the provisions of section 257.022.
Sec. 9. Minnesota Statutes 2000, section 518B.01,
subdivision 5, is amended to read:
Subd. 5. [HEARING ON APPLICATION; NOTICE.] (a) Upon
receipt of the petition, the court shall order a hearing which
shall be held not later than 14 days from the date of the
order for hearing unless an ex parte order is issued.
(b) If an ex parte order has been issued under subdivision
7 and a hearing requested, the time periods under subdivision 7
for holding a hearing apply. If a hearing was requested by the
petitioner, the petitioner seeks only the relief under
subdivision 7, paragraph (a), a hearing is not required unless:
(1) the court declines to order the requested relief; or
(2) one of the parties requests a hearing.
(c) If an ex parte order has been issued under subdivision
7 and the petitioner seeks relief beyond that specified in
subdivision 7, paragraph (a), or if the court declines to order
relief requested by the petitioner, a hearing must be held
within seven days. Personal service of the ex parte order may
be made upon the respondent at any time up to 12 hours prior to
the time set for the hearing, provided that the respondent at
the hearing may request a continuance of up to five days if
served fewer than five days prior to the hearing which
continuance shall be granted unless there are compelling reasons
not to. If the hearing was requested by the respondent after
issuance of an ex parte order under subdivision 7,
(d) If an ex parte order has been issued only granting
relief under subdivision 7, paragraph (a), and the respondent
requests a hearing, the hearing shall be held within ten days of
the court's receipt of the respondent's request. Service of the
notice of hearing must be made upon the petitioner not less than
five days prior to the hearing. The court shall serve the
notice of hearing upon the petitioner by mail in the manner
provided in the rules of civil procedure for pleadings
subsequent to a complaint and motions and shall also mail notice
of the date and time of the hearing to the respondent. In the
event that service cannot be completed in time to give the
respondent or petitioner the minimum notice required under this
paragraph subdivision, the court may set a new hearing date no
more than five days later.
(e) If for good cause shown either party is unable to
proceed at the initial hearing and requests a continuance and
the court finds that a continuance is appropriate, the hearing
may be continued. Unless otherwise agreed by the parties and
approved by the court, the continuance shall be for no more than
five days. If the court grants the requested continuance, the
court shall also issue a written order continuing all provisions
of the ex parte order pending the issuance of an order after the
hearing.
(b) (f) Notwithstanding the preceding provisions of
paragraph (a) this subdivision, service on the respondent may be
made by one week published notice, as provided under section
645.11, provided the petitioner files with the court an
affidavit stating that an attempt at personal service made by a
sheriff or other law enforcement or corrections officer was
unsuccessful because the respondent is avoiding service by
concealment or otherwise, and that a copy of the petition and
notice of hearing has been mailed to the respondent at the
respondent's residence or that the residence is not known to the
petitioner. Service under this paragraph is complete seven days
after publication. The court shall set a new hearing date if
necessary to allow the respondent the five-day minimum notice
required under paragraph (a) (d).
Sec. 10. Minnesota Statutes 2000, section 518B.01,
subdivision 7, is amended to read:
Subd. 7. [EX PARTE ORDER.] (a) Where an application under
this section alleges an immediate and present danger of domestic
abuse, the court may grant an ex parte order for protection and
granting relief as the court deems proper, including an order:
(1) restraining the abusing party from committing acts of
domestic abuse;
(2) excluding any party from the dwelling they share or
from the residence of the other except by further order of the
court;
(3) excluding the abusing party from the place of
employment of the petitioner or otherwise limiting access to the
petitioner by the abusing party at the petitioner's place of
employment; and
(4) continuing all currently available insurance coverage
without change in coverage or beneficiary designation.
(b) A finding by the court that there is a basis for
issuing an ex parte order for protection constitutes a finding
that sufficient reasons exist not to require notice under
applicable court rules governing applications for ex parte
relief.
(c) Subject to paragraph (d), an ex parte order for
protection shall be effective for a fixed period set by the
court, as provided in subdivision 6, paragraph (b), or until
modified or vacated by the court pursuant to a hearing. Upon
request, a full hearing, as provided by this section, shall be
set for not later than seven days from the issuance of the ex
parte order, if a hearing is requested by the petitioner, or not
later than ten days or earlier than eight days from receipt by
the court of a request for a hearing by the respondent. Except
as provided in paragraph (d), the respondent shall be personally
served forthwith a copy of the ex parte order along with a copy
of the petition and, if requested by the petitioner, notice of
the date set for the hearing. If the petitioner does not
request a hearing, an order served on a respondent under this
subdivision must include a notice advising the respondent of the
right to request a hearing, must be accompanied by a form that
can be used by the respondent to request a hearing and must
include a conspicuous notice that a hearing will not be held
unless requested by the respondent within five days of service
of the order.
(d) Service of the ex parte order may be made by published
notice, as provided under subdivision 5, provided that the
petitioner files the affidavit required under that subdivision.
If personal service is not made or the affidavit is not filed
within 14 days of issuance of the ex parte order, the order
expires. If the petitioner does not request a hearing, the
petition mailed to the respondent's residence, if known, must be
accompanied by the form for requesting a hearing and notice
described in paragraph (c). Unless personal service is
completed, if service by published notice is not completed
within 28 days of issuance of the ex parte order, the order
expires.
(e) If the petitioner seeks relief under subdivision 6
other than the relief described in paragraph (a), the petitioner
must request a hearing to obtain the additional relief.
(f) Nothing in this subdivision affects the right of a
party to seek modification of an order under subdivision 11.
Sec. 11. Minnesota Statutes 2000, section 518B.01,
subdivision 13, is amended to read:
Subd. 13. [COPY TO LAW ENFORCEMENT AGENCY.] (a) An order
for protection and any continuance of an order for protection
granted pursuant to this section shall be forwarded by the court
administrator within 24 hours to the local law enforcement
agency with jurisdiction over the residence of the applicant.
Each appropriate law enforcement agency shall make
available to other law enforcement officers through a system for
verification, information as to the existence and status of any
order for protection issued pursuant to this section.
(b) If the applicant notifies the court administrator of a
change in the applicant's residence so that a different local
law enforcement agency has jurisdiction over the residence, the
order for protection and any continuance of an order for
protection must be forwarded by the court administrator to the
new law enforcement agency within 24 hours of the notice. If
the applicant notifies the new law enforcement agency that an
order for protection has been issued under this section and the
applicant has established a new residence within that agency's
jurisdiction, within 24 hours the local law enforcement agency
shall request a copy of the order for protection from the court
administrator in the county that issued the order.
(c) When an order for protection is granted, the applicant
for an order for protection must be told by the court that:
(1) notification of a change in residence should be given
immediately to the court administrator and to the local law
enforcement agency having jurisdiction over the new residence of
the applicant;
(2) the reason for notification of a change in residence is
to forward an order for protection to the proper law enforcement
agency; and
(3) the order for protection must be forwarded to the law
enforcement agency having jurisdiction over the new residence
within 24 hours of notification of a change in residence,
whether notification is given to the court administrator or to
the local law enforcement agency having jurisdiction over the
applicant's new residence.
An order for protection is enforceable even if the
applicant does not notify the court administrator or the
appropriate law enforcement agency of a change in residence.
Sec. 12. [REPEALER.]
Minnesota Statutes 2000, section 518.158, is repealed.
Sec. 13. [INSTRUCTION TO THE REVISOR.]
(a) The revisor shall renumber Minnesota Statutes, section
257.0215 to be 257C.07 and correct all references to that
section in Minnesota Statutes and Minnesota Rules.
(b) The revisor shall renumber Minnesota Statutes, section
257.022 to be 257C.08 and correct all references to that section
in Minnesota Statutes and Minnesota Rules.
Presented to the governor March 26, 2002
Signed by the governor March 27, 2002, 3:39 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes