2001 REGULAR SESSION (71st)                                                                                 A SB25 63

Amendment No. 63

 

Senate Amendment to Senate Bill No. 25                                                                             (BDR 11‑45)

Proposed by: Committee on Judiciary

Amendment Box:

Resolves Conflicts with: N/A

Amends:         Summary:               Title:               Preamble:               Joint Sponsorship:

 

ASSEMBLY ACTION              Initial and Date              |SENATE ACTION                        Initial and Date

       Adopted       Lost                                               |          Adopted       Lost                                           

Concurred In                     Not                                                        |Concurred In  Not                                 

       Receded        Not                                               |         Receded        Not                                           

 

     Amend section 1, pages 1, 2 and 3, by deleting lines 2 through 20 on page 1, lines 1 through 49 on page 2 and lines 1 through 29 on page 3 and inserting:

     “125C.050  1.  Except as otherwise provided in subsection [3,] 6, if a parent of an unmarried minor child:

     (a) Is deceased;

     (b) Is divorced or separated from the parent who has custody of the child;

     (c) Has never been legally married to the other parent of the child, but cohabitated with the other parent and is deceased or is separated from the other parent; [or]

     (d) Has relinquished his parental rights or his parental rights have been terminated[,] ; or

     (e) Has prohibited visitation between the child and the great-grandparents or grandparents of the child or between the child and the other children of either parent of the child,

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the district court in the county in which the child resides may grant to the great-grandparents and grandparents of the child and to other children of either parent of the child a reasonable right to visit the child during his minority . [, if the court finds that the visits would be in the best interests of the child.]

     2.  If the child has resided with a person with whom he has established a meaningful relationship, the district court [also] in the county in which the child resides may grant to that person a reasonable right to visit the child during his minority, regardless of whether the person is related to the child . [, if the court finds that the visits would be in the best interests of the child.]

     3.  There is a rebuttable presumption that the granting of a right to visitation to a party seeking visitation pursuant to subsection 1 or 2 is not in the best interests of the child. To rebut this presumption, the party seeking visitation must prove by clear and convincing evidence that the child will suffer harm if a right to visitation is not granted to the party seeking visitation.

     4.  The court may grant a party seeking visitation pursuant to subsection 1 or 2 a reasonable right to visit the child during his minority if the court finds that:

     (a) The party seeking visitation has rebutted the presumption established in subsection 3; and

     (b) The visits would be in the best interests of the child.

     5.  In determining whether [to grant a right to visitation to a petitioner pursuant to subsection 1 or 2,] the party seeking visitation has rebutted the presumption established in subsection 3 and whether the visits would be in the best interests of the child, the court shall consider:

     (a) The love, affection and other emotional ties existing between the party seeking visitation and the child.

     (b) The capacity and disposition of the party seeking visitation to:

          (1) Give the child love, affection and guidance and serve as a role model to the child;

          (2) Cooperate in providing the child with food, clothing and other material needs during visitation; and

          (3) Cooperate in providing the child with health care or alternative care recognized and permitted under the laws of this state in lieu of health care.

     (c) The prior relationship between the child and the party seeking visitation, including, without limitation, whether the child resided with the party seeking visitation and whether the child was included in holidays and family gatherings with the party seeking visitation.

     (d) The moral fitness of the party seeking visitation.

     (e) The mental and physical health of the party seeking visitation.

     (f) The reasonable preference of the child, if the child has a preference, and if the child is determined to be of sufficient maturity to express a preference.

     (g) The willingness and ability of the party seeking visitation to facilitate and encourage a close and continuing relationship between the child and the parent or parents of the child as well as with other relatives of the child.

     (h) The medical and other needs of the child related to health as affected by the visitation.

     (i) The support provided by the party seeking visitation, including, without limitation, whether the party has contributed to the financial support of the child.

     (j) Any other factor [considered relevant by the court to a particular dispute.

     4.] arising solely from the facts and circumstances of the particular dispute that specifically pertains to the need for granting a right to visitation pursuant to subsection 1 or 2 against the wishes of a parent of the child.

     6. If the parental rights of either or both natural parents of a child are relinquished or terminated, and the child is placed in the custody of a public agency or a private agency licensed to place children in homes, the district court in the county in which the child resides may grant to the great-grandparents and grandparents of the child and to other children of either parent of the child a reasonable right to visit the child during his minority if a petition therefor is filed with the court before the date on which the parental rights are relinquished or terminated. In determining whether to grant this right to a [petitioner,] party seeking visitation, the court must find , by a preponderance of the evidence, that the visits would be in the best interests of the child in light of the considerations set forth in paragraphs (a) to (i), inclusive, of subsection [3.] 5.

     [5.]7.  Rights to visit a child may be granted:

     (a) In a divorce decree;

     (b) In an order of separate maintenance; or

     (c) Upon a petition filed by an eligible person:

          (1) After a divorce or separation or after the death of a parent, or upon the relinquishment or termination of a parental right;

          (2) If the parents of the child were not legally married and were cohabitating, after the death of a parent or after the separation of the parents of the child; [or]

          (3) If the petition is based on the prohibition of visitation between the child and the great-grandparents or grandparents of the child or between the child and the other children of either parent of the child, after a parent has prohibited such visitation; or

          (4) If the petition is based on the provisions of subsection 2, after the eligible person ceases to reside with the child.

     [6.] 8. If a court terminates the parental rights of a parent who is divorced or separated, any rights previously granted pursuant to subsection 1 also must be terminated, unless the court finds that visits by those persons would be in the best interests of the child.

     [7.] 9. If the court denies a petition for visitation filed pursuant to paragraph (e) of subsection 1, the court shall award reasonable attorney’s fees and costs incurred by a party who opposed the granting of the petition.

     10.  For the purposes of this section, “separation” means:”.