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PAG LIN 1 1 Section 1. Section 598.1, Code 1995, is amended to read as 1 2 follows: 1 3 598.1 DEFINITIONS. 1 4 As used in this chapter: 1 5 1. "Best interest of the child" includes, but is not 1 6 limited to, the opportunity for the maximum possible 1 7 continuous physical and emotionalcontact possible withaccess 1 8 by the child to both parents, unless direct physical or 1 9 significant emotional harm to the child may result from this 1 10contactaccess. Refusal by one parent to providethis1 11opportunityaccess to the child without just cause shall be 1 12 considered harmful to the best interest of the child. 1 13 2. "Dissolution of marriage" means a termination of the 1 14 marriage relationship and shall be synonymous with the term 1 15 "divorce". 1 16 3. "Joint custody" or "joint legal custody" means an award 1 17 of the rights of legal custody of a minor child to both 1 18 parents jointly under which both parents have legal custodial 1 19 rights and responsibilities toward the child and under which 1 20 neither parent has legal custodial rights superior to those of 1 21 the other parent.The court may award physical care to one1 22parent only.Rights and responsibilities of joint legal 1 23 custody include, but are not limited to, equal participation 1 24 in decisions affecting the child's legal status, medical care, 1 25 education, extracurricular activities, third-party child care, 1 26 and religious instruction. 1 27 3A. "Joint physical care" means an award of physical care 1 28 of a minor child to both joint legal custodial parents under 1 29 which both parents have rights and responsibilities toward the 1 30 child including but not limited to shared parenting time with 1 31 the child, maintaining homes for the child, providing routine 1 32 care for the child and under which neither parent has physical 1 33 care rights superior to those of the other parent. 1 34 3B. "Legal custody" or "custody" means an award of the 1 35 rights of legal custody of a minor child to a parent under 2 1 which a parent has legal custodial rights and responsibilities 2 2 toward the child. Rights and responsibilities of legal 2 3 custody include, but are not limited to decision making 2 4 affecting the child's legal status, medical care, education, 2 5 extracurricular activities, third-party child care, and 2 6 religious instruction. 2 7 4. "Minor child" means any person under legal age. 2 8 5. "Physical care" means the right and responsibility to 2 9 maintainthe principala homeoffor the minor child and 2 10 provide for the routine care of the child. 2 11 6. "Support" or "support payments" means an amount which 2 12 the court may require either of the parties to pay under a 2 13 temporary order or a final judgment or decree, and may include 2 14 alimony, child support, maintenance, and any other term used 2 15 to describe these obligations. For orders entered on or after 2 16 July 1, 1990, unless the court specifically orders otherwise, 2 17 medical support is not included in the monetary amount of 2 18 child support. The obligations may include support for a 2 19 child who is between the ages of eighteen and twenty-two years 2 20 who is regularly attending an accredited school in pursuance 2 21 of a course of study leading to a high school diploma or its 2 22 equivalent, or regularly attending a course of vocational- 2 23 technical training either as a part of a regular school 2 24 program or under special arrangements adapted to the 2 25 individual person's needs; or is, in good faith, a full-time 2 26 student in a college, university, or community college; or has 2 27 been accepted for admission to a college, university, or 2 28 community college and the next regular term has not yet begun; 2 29 or a child of any age who is dependent on the parties to the 2 30 dissolution proceedings because of physical or mental 2 31 disability. 2 32 Sec. 2. Section 598.21, Code Supplement 1995, is amended 2 33 by adding the following new subsections: 2 34 NEW SUBSECTION. 8A. In addition to the factors to be 2 35 considered by the court. Pursuant to subsection 8, in 3 1 determining if a substantial change in circumstances exists 3 2 for the purposes of modifying the custody provisions of an 3 3 order made under this section, the court shall also at the 3 4 same time consider all of the following: 3 5 a. Interference with access between the child and one 3 6 parent caused by the other parent. 3 7 b. A change in the work schedule of a parent creating a 3 8 conflict with access to the child by one parent. 3 9 NEW SUBSECTION. 8B. If a parent awarded joint legal 3 10 custody and physical care or sole legal custody is relocating 3 11 the residence of the minor child to another state, the court 3 12 shall modify the order to preserve, as nearly as possible, the 3 13 existing relationship between the minor child and the other 3 14 parent. If modified, the order shall, at a minimum, include a 3 15 provision for extended visitation during summer vacations and 3 16 school breaks and scheduled telephone contact between the 3 17 other parent and the minor child. The modification may 3 18 include a provision assigning the responsibility for 3 19 transportation of the minor child for visitation purposes to 3 20 either or both parents. If the court finds evidence of past 3 21 interference by the parent awarded joint legal custody and 3 22 physical care or sole legal custody with the minor child's 3 23 access to the other parent, the court may order the posting of 3 24 a cash bond to assure future compliance with the visitation 3 25 provisions of the decree. 3 26 Sec. 3. Section 598.23, subsection 2, Code 1995, is 3 27 amended by adding the following new paragraphs: 3 28 NEW PARAGRAPH. c. Directs the parties to provide access 3 29 to the child through a neutral party or neutral site or 3 30 center. 3 31 NEW PARAGRAPH. d. Imposes sanctions or specific 3 32 requirements or orders the parties to participate in mediation 3 33 to enforce the joint custody provisions of the decree. 3 34 Sec. 4. Section 598.41, Code Supplement 1995, is amended 3 35 to read as follows: 4 1 598.41 CUSTODY OF CHILDREN. 4 2 1. a. The court, insofar as is reasonable and in the best 4 3 interest of the child, shall order the custody award, 4 4 including liberal visitation rights where appropriate, which 4 5 will assure the child the opportunity for the maximum 4 6 continuing physical and emotionalcontact withaccess to both 4 7 parents after the parents have separated or dissolved the 4 8 marriage, and which will encourage parents to share the rights 4 9 and responsibilities of raising the child unless direct 4 10 physical harm or significant emotional harm to the child, 4 11 other children, or a parent is likely to result from such 4 12contact withaccess to one parent. 4 13 b. Notwithstanding paragraph "a", if the court finds that 4 14 a history of domestic abuse exists, a rebuttable presumption 4 15 against the awarding of joint custody exists. 4 16 c. The court shall consider the denial by one parent of 4 17 the child'sopportunity forright to maximum continuing 4 18contact withaccess to the other parent, without just cause, a 4 19 significant factor in determining the proper custody 4 20 arrangement. Just cause may include a determination by the 4 21 court pursuant to subsection 3, paragraph "j", that a history 4 22 of domestic abuse exists between the parents. 4 23 d. If a history of domestic abuse exists as determined by 4 24 a court pursuant to subsection 3, paragraph "j", and if a 4 25 parent who is a victim of such domestic abuse relocates or is 4 26 absent from the home based upon the fear of or actual acts or 4 27 threats of domestic abuse perpetrated by the other parent, the 4 28 court shall not consider the relocation or absence of that 4 29 parent as a factor against that parent in the awarding of 4 30 custody or visitation. 4 31 e. Unless otherwise ordered by the court in the custody 4 32 decree, both parents shall have legal access to information 4 33 concerning the child, including but not limited to medical, 4 34 educational and law enforcement records. 4 35 2. a. On the application of either parent, the court 5 1 shall consider granting joint custody in cases where the 5 2 parents do not agree to joint custody. 5 3 b. If the court does not grant joint custody under this 5 4 subsection, the court shall cite clear and convincing 5 5 evidence, pursuant to the factors in subsection 3, that joint 5 6 custody is unreasonable and not in the best interest of the 5 7 child to the extent that the legal custodial relationship 5 8 between the child and a parent should be severed. 5 9 c. A finding by the court that a history of domestic abuse 5 10 exists, as specified in subsection 3, paragraph "j", which is 5 11 not rebutted, shall outweigh consideration of any other factor 5 12 specified in subsection 3 in the determination of the awarding 5 13 of custody under this subsection. 5 14 d. Before ruling upon the joint custody petition in these 5 15 cases, unless the court determines that a history of domestic 5 16 abuse exists as specified in subsection 3, paragraph "j", or 5 17 unless the court determines that direct physical harm or 5 18 significant emotional harm to the child, other children, or a 5 19 parent is likely to result, the court may require the parties 5 20 to participate in custody mediation to determine whether joint 5 21 custody is in the best interest of the child. The court may 5 22 require the child's participation in the mediation insofar as 5 23 the court determines the child's participation is advisable. 5 24 e. The costs of custody mediation shall be paid in full or 5 25 in part by the parties and taxed as court costs. 5 26 3. In considering what custody arrangement under 5 27 subsection 2 is in the best interest of the minor child, the 5 28 court shall consider the following factors: 5 29 a. Whether each parent would be a suitable custodian for 5 30 the child. 5 31 b. Whether the psychological and emotional needs and 5 32 development of the child will suffer due to lack of active 5 33contact withaccess to and attention from both parents. 5 34 c. Whether the parents can communicate with each other 5 35 regarding the child's needs. 6 1 d. Whether both parents have actively cared for the child 6 2 before and since the separation. 6 3 e. Whether each parent can support the other parent's 6 4 relationship with the child. 6 5 f. Whether the custody arrangement is in accord with the 6 6 child's wishes or whether the child has strong opposition, 6 7 taking into consideration the child's age and maturity. 6 8 g. Whether one or both the parents agree or are opposed to 6 9 joint custody. 6 10 h. The geographic proximity of the parents. 6 11 i. Whether the safety of the child, other children, or the 6 12 other parent will be jeopardized by the awarding of joint 6 13 custody or by unsupervised or unrestricted visitation. 6 14 j. Whether a history of domestic abuse, as defined in 6 15 section 236.2, exists. In determining whether a history of 6 16 domestic abuse exists, the court's consideration shall 6 17 include, but is not limited to, commencement of an action 6 18 pursuant to section 236.3, the issuance of a protective order 6 19 against the parent or the issuance of a court order or consent 6 20 agreement pursuant to section 236.5, the issuance of an 6 21 emergency order pursuant to section 236.6, the holding of a 6 22 parent in contempt pursuant to section 236.8, the response of 6 23 a peace officer to the scene of alleged domestic abuse or the 6 24 arrest of a parent following response to a report of alleged 6 25 domestic abuse, or a conviction for domestic abuse assault 6 26 pursuant to section 708.2A. 6 27 4. Subsection 3 shall not apply when parents agree to 6 28 joint custody. 6 29 5.Joint legal custody does not require joint physical6 30care.When the court determines such action wouldbe in the6 31 bestinterest ofpreserve the relationship between each parent 6 32 and the child, joint physical care may begivenawarded to 6 33 both joint custodial parents or physical care may be awarded 6 34 to one joint custodial parentand not to the other. If one 6 35 joint custodial parent is awarded physical care, thecourt7 1shall hold thatparent responsible for providingfor the best7 2interest ofphysical care shall support the other parent's 7 3 relationship with the child.However, physicalPhysical care 7 4givenawarded to one parent does not affect the other parent's 7 5 rights and responsibilities as a joint legal custodian of the 7 6 child. Rights and responsibilities as joint legal custodian 7 7 of the child include, but are not limited to, equal 7 8 participation in decisions affecting the child's legal status, 7 9 medical care, education, extracurricular activities, third- 7 10 party child care, and religious instruction. 7 11 6. When the parent awarded legal custody or physical care 7 12 of the child cannot act as custodian or caretaker because the 7 13 parent has died or has been judicially adjudged incompetent, 7 14 the court shall award legal custody including physical care of 7 15 the child to the surviving parent unless the court finds that 7 16 such an award is not in the child's best interest. 7 17 7. If an application for modification of a decree or a 7 18 petition for modification of an order is filed, based upon 7 19 differences between the parents regarding the custody 7 20 arrangement established under the decree or order, unless the 7 21 court determines that a history of domestic abuse exists as 7 22 specified in subsection 3, paragraph "j", or unless the court 7 23 determines that direct physical harm or significant emotional 7 24 harm to the child, other children, or a parent is likely to 7 25 result, the court may require the parents to participate in 7 26 mediation to attempt to resolve the differences between the 7 27 parents. 7 28 8. A parent who is awarded joint legal custody and 7 29 physical care or sole legal custody of a minor child shall 7 30 provide written notice to the other parent of the parent's 7 31 intent to relocate the residence of the minor child outside of 7 32 the state at least sixty days prior to the relocation. 7 33 EXPLANATION 7 34 This bill defines joint physical care, as distinguished 7 35 from joint legal custody, of a minor child. The bill provides 8 1 new factors for consideration by the court in determining if a 8 2 substantial change in circumstances exists as a basis for 8 3 modification of the custody provisions of an order. The new 8 4 factors include interference by one parent with access by the 8 5 other parent to the child and a change in the work schedule of 8 6 one parent which creates a conflict with access by one parent 8 7 to the child. The bill also provides that if a party awarded 8 8 joint legal custody and physical care or sole legal custody 8 9 relocates the residence of the minor child and if the change 8 10 of residence will be to a location outside of the state, the 8 11 order is to be modified to preserve to the greatest extent 8 12 possible the existing relationship between the minor child and 8 13 the other parent. The modification is to include, at a 8 14 minimum, extended visitation during summer vacations and 8 15 school breaks and scheduled telephone contact. The modified 8 16 order may also assign responsibility for the transportation of 8 17 the minor child for purposes of visitation with the other 8 18 parent to either or both parents. The bill provides that if 8 19 there has been prior interference to access between the other 8 20 parent and the minor child, the parent awarded joint legal 8 21 custody and physical care or sole legal custody may be 8 22 required to post a cash bond to assure future compliance. The 8 23 bill provides that as an alternative to punishment for 8 24 contempt based upon a party willfully disobeying an order or 8 25 decree, the court may direct the parties to provide access to 8 26 the child through a neutral party or neutral site or center 8 27 and provides for the imposing of sanctions or specific 8 28 requirements or for the ordering of the parties to participate 8 29 in mediation to enforce the joint custody provisions of a 8 30 decree. The bill also requires that a parent awarded joint 8 31 legal custody and physical care or sole legal custody who is 8 32 planning to relocate outside of the state is required to 8 33 notify the other parent, in writing, of this intent at least 8 34 60 days prior to relocation. The bill also makes other 8 35 conforming changes in the dissolution chapter to reflect the 9 1 new terminology. 9 2 LSB 3676XL 76 9 3 pf/sc/14.1
Text: SSB02298 Text: SSB02300 Text: SSB02200 - SSB02299 Text: SSB Index Bills and Amendments: General Index Bill History: General Index
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