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PAG LIN
1 1 Section 1. NEW SECTION. 598.23B MEDIATION –
1 2 INTERFERENCE WITH CUSTODY OR VISITATION.
1 3 1. A party to an order or decree may submit an
1 4 application, pro se, to the magistrate having jurisdiction
1 5 over the parties, to request mediation of an issue of
1 6 interference with custody or visitation as established in the
1 7 order or decree.
1 8 2. A copy of the application shall be served on the
1 9 respondent by certified mail or personal service. The
1 10 respondent shall have three days from the receipt of service
1 11 to respond, in writing, to the application, agreeing to
1 12 participate in mediation or demonstrating why the issue should
1 13 not be set for mediation.
1 14 3. Upon the lapse of the three-day period, the magistrate
1 15 shall determine whether to order mediation. The magistrate
1 16 shall order mediation if the magistrate determines that there
1 17 is a reasonable likelihood that the parties are presently
1 18 unable to resolve the differences cited by the parties
1 19 relating to custody or visitation, and the mediation is in the
1 20 best interest of the minor children involved. The magistrate
1 21 shall not order mediation if the respondent demonstrates
1 22 otherwise, or unless the magistrate determines that such
1 23 mediation is not in the best interest of the child or that
1 24 harm may result to any party or the child.
1 25 4. Mediation shall be provided by a mediator approved by
1 26 the court. Mediation under this section is subject to chapter
1 27 679C, unless otherwise provided under this section. Mediation
1 28 shall be held as soon as practicable after the entry of the
1 29 order under subsection 3. The mediation schedule shall be set
1 30 by the mediator. At any time from the initial application for
1 31 mediation, and only upon agreement of the parties, the
1 32 magistrate may appoint a guardian ad litem for the children to
1 33 represent the children's interests in mediation. If either
1 34 party fails to appear at a scheduled mediation without good
1 35 cause, the mediator shall report the nonappearance to the
2 1 court, and the court may enforce the order for mediation
2 2 through contempt.
2 3 5. Completion of the mediation process shall result in one
2 4 of the following:
2 5 a. If the parties enter into a mediation agreement, the
2 6 original mediation agreement shall be filed with the court.
2 7 If the agreement does not require modification of the custody
2 8 or visitation provisions of any existing decree or order, the
2 9 agreement shall include a provision that the parties are aware
2 10 that if either party subsequently interferes with a custody or
2 11 visitation provision of the decree or order, a law enforcement
2 12 officer shall enforce the provisions of the order or decree,
2 13 upon being shown the agreement and the order or decree. The
2 14 provision shall also note that the law enforcement officer
2 15 will not remove the child from the party who has actual
2 16 physical custody of the child at the time, unless the law
2 17 enforcement officer is shown the agreement and the order or
2 18 decree which clearly and convincingly verify that such party
2 19 is not entitled to the actual physical custody of the child,
2 20 and there are not other exigent circumstances that would give
2 21 the law enforcement officer reasonable suspicion to believe
2 22 that the child would be harmed or that the agreement and the
2 23 order or decree are not valid.
2 24 b. If the parties enter into a mediation agreement, which
2 25 requires modification of the custody or visitation provisions
2 26 of an existing order or decree, the agreement shall specify a
2 27 precise visitation schedule upon which the modified order or
2 28 decree shall be based, and the agreement shall be attached to
2 29 any petition or application for modification of the order or
2 30 decree. The modified order or decree shall also include a
2 31 provision that the parties are aware that if either party
2 32 subsequently interferes with a custody or visitation provision
2 33 of the decree or order, a law enforcement officer shall
2 34 enforce the provisions of the order or decree, upon being
2 35 shown the order or decree. The provision shall also note that
3 1 the law enforcement officer will not remove the child from the
3 2 party who has actual physical custody of the child at the
3 3 time, unless the law enforcement officer is shown the order or
3 4 decree which clearly and convincingly verifies that such party
3 5 is not entitled to the actual physical custody of the child,
3 6 and there are not other exigent circumstances that would give
3 7 the law enforcement officer reasonable suspicion to believe
3 8 that the child would be harmed or that the order or decree is
3 9 not valid.
3 10 c. If the parties do not enter into a mediation agreement,
3 11 the mediator shall file a report with the court so stating.
3 12 The report shall be entered in the case file of the parties
3 13 and shall be admissible in any subsequent civil or criminal
3 14 proceeding involving the custody or visitation of a child,
3 15 notwithstanding any law or any rule of the court to the
3 16 contrary. The parties shall also be instructed that if either
3 17 party subsequently interferes with a custody or visitation
3 18 provision of the decree or order, a law enforcement officer
3 19 shall enforce the provisions of the order or decree, upon
3 20 being shown the order or decree. The parties shall also be
3 21 instructed that the law enforcement officer will not remove
3 22 the child from the party who has actual physical custody of
3 23 the child at the time, unless the law enforcement officer is
3 24 shown the order or decree which clearly and convincingly
3 25 verifies that such party is not entitled to the actual
3 26 physical custody of the child, and there are not other exigent
3 27 circumstances that would give the law enforcement officer
3 28 reasonable suspicion to believe that the child would be harmed
3 29 or that the order or decree is not valid. The report filed
3 30 with the court under this paragraph shall note that the above
3 31 instructions were provided to the parties.
3 32 6. The costs of mediation shall be paid in full or in part
3 33 by the parties, as apportioned by the court, based upon the
3 34 financial affidavits of the parties.
3 35 7. Filing of an application for mediation under this
4 1 section shall not stay the custody or visitation provisions of
4 2 an existing decree or order, unless the court determines that
4 3 harm will result to a participant or child.
4 4 8. Filing of a contempt action shall stay the mediation
4 5 proceedings under this section.
4 6 9. a. If a person who was a party to mediation ordered
4 7 under this section, with the intent to deprive another person
4 8 of that person's rights to visitation or custody, subsequently
4 9 disobeys the visitation or custody provisions of the order or
4 10 decree, a law enforcement officer shall issue a citation to
4 11 the person. The citation shall include the name and address
4 12 of the person, the nature of the offense, the time and place
4 13 at which the person is to appear in court, and the penalty for
4 14 nonappearance. Before the cited person is released, the
4 15 person shall sign the citation as a written promise to appear
4 16 in court at the time and place specified. A copy of the
4 17 citation shall be given to the person.
4 18 b. The law enforcement officer issuing the citation shall
4 19 file a complaint in the court in which the cited person is
4 20 required to appear, as soon as practicable, charging the
4 21 person with the crime of unlawful interference with custody or
4 22 visitation.
4 23 c. Upon failure of the cited person to appear in court,
4 24 the court shall issue an arrest warrant for the person.
4 25 d. A person who commits unlawful interference with custody
4 26 or visitation under this section commits the following
4 27 violation:
4 28 (1) For a first or second offense, the person commits a
4 29 scheduled violation under section 805.8, subsection 13.
4 30 (2) For a third or subsequent offense, the person commits
4 31 a serious misdemeanor.
4 32 10. If the interference includes concealment of the child
4 33 or results in the child's whereabouts being unknown to a
4 34 parent, in violation of the court order granting visitation or
4 35 parental time, without that parent's consent, the provisions
5 1 of section 710.6 shall apply.
5 2 Sec. 2. Section 602.6405, Code 1999, is amended by adding
5 3 the following new subsection:
5 4 NEW SUBSECTION. 1A. Magistrates who are admitted to the
5 5 practice of law in this state, have jurisdiction to exercise
5 6 the powers specified for magistrates and to order mediation
5 7 pursuant to section 598.23B.
5 8 Sec. 3. Section 805.8, Code 1999, is amended by adding the
5 9 following new subsection:
5 10 NEW SUBSECTION. 13. UNLAWFUL INTERFERENCE WITH CUSTODY OR
5 11 VISITATION. For a first violation under section 598.23B, the
5 12 scheduled fine is one hundred dollars. For a second violation
5 13 under section 598.23B, the scheduled fine is two hundred
5 14 dollars.
5 15 Sec. 4. Section 805.10, Code 1999, is amended by adding
5 16 the following new subsection:
5 17 NEW SUBSECTION. 2A. When the violation charged is
5 18 unlawful interference with custody or visitation under section
5 19 598.23B.
5 20 EXPLANATION
5 21 This bill relates to interference with custody or
5 22 visitation.
5 23 The bill establishes a process for mediation of
5 24 interference with custody or visitation. The process may be
5 25 initiated, pro se, by any party to an order or decree, by
5 26 submitting an application to a magistrate. Following service
5 27 of a copy of the application on the respondent, the respondent
5 28 is to reply within three days, in writing, either agreeing to
5 29 participate in mediation or demonstrating why mediation should
5 30 not be ordered. Upon the lapse of the three days, the
5 31 magistrate is to determine whether to order mediation. The
5 32 magistrate shall order mediation if there is a reasonable
5 33 likelihood that the parties are presently unable to resolve
5 34 their differences and if mediation is in the best interest of
5 35 the child involved. The magistrate is not to order mediation
6 1 if the respondent demonstrates otherwise, or if the magistrate
6 2 determines that harm may come to a party or the child or if
6 3 mediation is not in the best interest of the child.
6 4 The bill requires that mediation be provided by a mediator
6 5 approved by the court, that the mediator is subject to
6 6 existing law related to mediators, and that the mediator is to
6 7 establish the mediation schedule for the parties. If the
6 8 parties agree, the court may appoint a guardian ad litem for
6 9 the child during the mediation process.
6 10 If a party fails to appear for scheduled mediation without
6 11 good cause, the mediator is required to report the
6 12 nonappearance to the court and the court may enforce the order
6 13 through contempt.
6 14 Under the bill, three results may follow from completion of
6 15 the mediation process:
6 16 1. If the parties enter a mediation agreement, the
6 17 mediation agreement is filed with the court. If the agreement
6 18 does not require a modification of the custody or visitation
6 19 provisions of the existing order or decree, the agreement is
6 20 to include a provision regarding the results of any subsequent
6 21 interference with custody or visitation.
6 22 2. If the parties enter into a mediation agreement, which
6 23 requires the modification of the existing order or decree, the
6 24 agreement is to include a specific visitation schedule upon
6 25 which the modified order or decree is to be based, and the
6 26 agreement is to be attached to any petition or application for
6 27 modification of the order or decree. The modified order or
6 28 decree is to include a provision regarding the results of any
6 29 subsequent interference with visitation or custody.
6 30 3. If the parties do not enter an agreement, the mediator
6 31 is to file a report with the court so stating, and the report
6 32 is to be entered in the case file and is admissible in any
6 33 subsequent civil or criminal proceeding involving the custody
6 34 or visitation of a child. Additionally, the parties are to be
6 35 instructed regarding the results of any subsequent
7 1 interference with custody or visitation, and the report filed
7 2 with the court is to include a note that the instructions were
7 3 provided to the parties.
7 4 Under the bill, costs of mediation are to be paid by the
7 5 parties as apportioned by the court and based upon the
7 6 financial affidavits of the parties.
7 7 Filing of an application for mediation does not stay the
7 8 current custody or visitation provisions, unless the court
7 9 determines that harm will result to a child or participant.
7 10 Filing of a contempt action stays the mediation proceedings.
7 11 The bill also establishes the crime of unlawful
7 12 interference with visitation or custody. If a party to
7 13 mediation ordered under the bill, with the intent to deprive
7 14 another person of that person's rights to visitation or
7 15 custody, subsequently disobeys the visitation or custody
7 16 provisions of the order or decree, law enforcement shall cite
7 17 the person with interference with visitation or custody. The
7 18 law enforcement officer is to file a complaint in court based
7 19 upon the citation, and if the cited person fails to appear, an
7 20 arrest warrant is issued for the person. If the person
7 21 commits interference with visitation or custody, the person is
7 22 subject to a scheduled violation for a first offense in the
7 23 amount of a $100 fine; a scheduled violation for a second
7 24 offense in the amount of a $200 fine; and for a third or
7 25 subsequent offense, a serious misdemeanor for which the
7 26 punishment is a fine of at least $250, not to exceed $1,500,
7 27 which in addition may include imprisonment not to exceed one
7 28 year.
7 29 The bill also grants jurisdiction to magistrates who are
7 30 admitted to the practice of law in Iowa to exercise the powers
7 31 to order mediation as provided in the bill.
7 32 LSB 1727HV 78
7 33 pf/sc/14.1
Text: HF00718 Text: HF00720 Text: HF00700 - HF00799 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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