0001|                           SENATE BILL 283
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                            L. SKIP VERNON
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO FAMILY LAW; PROVIDING ADDITIONAL GUIDELINES FOR
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0012|     JOINT CUSTODY OF A CHILD; AMENDING A SECTION OF THE NMSA 1978.
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0013|     
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0014|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015|          Section 1.  Section 40-4-9.1 NMSA 1978 (being Laws 1986,
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0016|     Chapter 41, Section 1) is amended to read:
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0017|          "40-4-9.1.  JOINT CUSTODY--STANDARDS FOR DETERMINATION--
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0018|     PARENTING PLAN.--
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0019|               A.  There shall be a presumption that joint custody
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0020|     is in the best ~[interest]~ |interests| of a child in an
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0021|     initial custody determination.  An award of joint custody does
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0022|     not imply an equal division of financial responsibility for
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0023|     the child.  Joint custody shall not be awarded as a substitute
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0024|     for an existing custody arrangement unless there has been a
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0025|     substantial and material change in circumstances since the
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0001|     entry of the prior custody order or decree, which change
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0002|     affects the welfare of the child such that joint custody is
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0003|     presently in the best interests of the child.  With respect to
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0004|     any proceeding in which it is proposed that joint custody be
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0005|     terminated, the court shall not terminate joint custody unless
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0006|     there has been a substantial and material change in
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0007|     circumstances affecting the welfare of the child, since entry
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0008|     of the joint custody order, such that joint custody is no
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0009|     longer in the best interests of the child.
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0010|               B.  In determining whether a joint custody order is
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0011|     in the best interests of the child, in addition to the factors
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0012|     provided in Section 40-4-9 NMSA 1978, the court shall consider
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0013|     the following factors:
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0014|                    (1)  whether the child has established a close
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0015|     relationship with each parent;
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0016|                    (2)  whether each parent is capable of
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0017|     providing adequate care for the child throughout each period
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0018|     of responsibility, including arranging for the child's care by
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0019|     others as needed;
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0020|                    (3)  whether each parent is willing to accept
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0021|     all responsibilities of parenting, including a willingness to
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0022|     accept care of the child at specified times and to relinquish
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0023|     care to the other parent at specified times;
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0024|                    (4)  whether the child can best maintain and
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0025|     strengthen a relationship with both parents through
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0001|     predictable, frequent contact and whether the child's
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0002|     development will profit from such involvement and influence
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0003|     from both parents;
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0004|                    (5)  whether each parent is able to allow the
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0005|     other to provide care without intrusion, that is, to respect
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0006|     the other's parental rights and responsibilities and ~[his or
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0007|     her]~ right to privacy;
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0008|                    (6)  the suitability of a parenting plan for
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0009|     the implementation of joint custody, preferably, although not
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0010|     necessarily, one arrived at through parental agreement;
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0011|                    (7)  geographic distance between the parents'
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0012|     residences; and
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0013|                    (8)  willingness or ability of the parents to
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0014|     communicate, cooperate or agree on issues regarding the
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0015|     child's needs.
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0016|               C.  In any proceeding in which the custody of a
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0017|     child is at issue, the court shall not prefer one parent as a
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0018|     custodian solely because of gender.
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0019|               D.  In any case in which the parents agree to a
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0020|     form of custody, the court should award custody consistent
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0021|     with the agreement unless the court determines that such
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0022|     agreement is not in the best ~[interest]~ |interests| of the
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0023|     child.
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0024|               E.  In making an order of joint custody, the court
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0025|     may specify the circumstances, if any, under which the consent
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0001|     of both legal custodians is required to be obtained in order
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0002|     to exercise legal control of the child and the consequences of
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0003|     the failure to obtain mutual consent.
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0004|               F.  When joint custody is awarded, the court shall
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0005|     approve a parenting plan for the implementation of the
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0006|     prospective custody arrangement prior to the award of joint
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0007|     custody.  The parenting plan shall include a division of a
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0008|     child's time and care into periods of responsibility for each
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0009|     parent.  It may also include:
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0010|                    (1)  statements regarding the child's
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0011|     religion, education, child care, recreational activities and
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0012|     medical and dental care;
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0013|                    (2)  designation of specific decision-making
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0014|     responsibilities;
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0015|                    (3)  methods of communicating information
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0016|     about the child, transporting the child, exchanging care for
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0017|     the child and maintaining telephone and mail contact between
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0018|     parent and child;
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0019|                    (4)  procedures for future decision making,
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0020|     including procedures for dispute resolution; and
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0021|                    (5)  other statements regarding the welfare of
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0022|     the child or designed to clarify and facilitate parenting
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0023|     under joint custody arrangements.
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0024|          In a case where joint custody is not agreed to or
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0025|     necessary aspects of the parenting plan are contested, the
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0001|     parties shall each submit parenting plans.  The court may
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0002|     accept the plan proposed by either party or it may combine or
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0003|     revise these plans as it deems necessary in the child's best
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0004|     ~[interest]~ |interests|.  The time of filing of parenting
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0005|     plans shall be set by local rule.  A plan adopted by the court
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0006|     shall be entered as an order of the court.
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0007|               G.  Where custody is contested, the court shall
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0008|     refer that issue to mediation if feasible.  The court may also
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0009|     use auxiliary services such as professional evaluation by
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0010|     application of Rule 706 of the New Mexico rules of evidence or
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0011|     Rule 53 of the Rules of Civil Procedure for the District
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0012|     ~[court]~ |Courts|.
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0013|               H.  Notwithstanding any other provisions of law,
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0014|     access to records and information pertaining to a minor child,
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0015|     including ~[but not limited to]~ medical, dental and school
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0016|     records, shall not be denied to a parent because that parent
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0017|     is not the child's physical custodial parent or because that
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0018|     parent is not a joint custodial parent.
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0019|               I.  Whenever a request for joint custody is granted
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0020|     or denied, the court shall state in its decision its basis for
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0021|     granting or denying the request for joint custody.  A
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0022|     statement that joint custody is or is not in the best
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0023|     interests of the child is not sufficient to meet the
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0024|     requirements of this subsection.
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0025|               J.  An award of joint custody means that:
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0001|                    |(1)  each parent's ability to mold and
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0002|     cultivate a relationship with the child shall not be infringed
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0003|     upon unless there is a compelling interest of the child or one
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0004|     of the parents;|
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0005|                    ~[(1)]~ |(2)|  each |willing and able| parent
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0006|     shall have |liberal|, significant |and| well-defined periods
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0007|     of responsibility for the child |pursuant to the following
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0008|     minimum guidelines:|
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0009|                         |(a)  for a child less than eighteen
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0010|     months of age, each parent shall have an ample opportunity to
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0011|     bond with the child.  The noncustodial parent shall be awarded
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0012|     an occasional overnight visit with the child;
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0013|                         (b)  for a child eighteen months of age
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0014|     through the child's attendance in kindergarten classes, each
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0015|     parent is entitled to an opportunity to develop and maintain a
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0016|     daily relationship with the child.  The noncustodial parent
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0017|     shall be awarded two overnight visitations per week with the
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0018|     child;
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0019|                         (c)  for a child of preschool age, each
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0020|     parent's right to care for the child shall take precedence
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0021|     over sending the child to daycare or having a third party care
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0022|     for the child;
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0023|                         (d)  for a child attending school until
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0024|     the child reaches the age of fourteen, each parent shall have
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0025|     a timesharing opportunity that allows each parent to fully
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0001|     participate in the child's school activities, after-school
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0002|     activities and homework activities;
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0003|                         (e)  during summer months and school
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0004|     breaks, each parent shall have a liberal period of time with
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0005|     the child.  However, the parents may stipulate otherwise; and
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0006|                         (f)  during major holidays and the
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0007|     child's birthday, each parent shall have a period of time with
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0008|     the child.  During minor holidays, the parents shall annually
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0009|     alternate spending those holidays with the child.  However,
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0010|     the parents may stipulate otherwise|;
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0011|                    ~[(2)]~ |(3)|  each parent shall have, and be
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0012|     allowed and expected to carry out, responsibility for the
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0013|     child's financial, physical, emotional and developmental needs
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0014|     during that parent's periods of responsibility;
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0015|                    ~[(3)]~ |(4)|  the parents shall consult with
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0016|     each other on major decisions involving the child before
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0017|     implementing those decisions; that is, neither parent shall
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0018|     make a decision or take an action which results in a major
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0019|     change in a child's life until the matter has been discussed
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0020|     with the other parent and the parents agree.  If the parents,
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0021|     after discussion, cannot agree and if one parent wishes to
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0022|     effect a major change while the other does not wish the major
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0023|     change to occur, then no change shall occur until the issue
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0024|     has been resolved as provided in this subsection;
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0025|                    ~[(4)]~ |(5)|  the following guidelines
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0001|     ~[shall]~ apply to major changes in a child's life:
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0002|                         (a)  if either parent plans to change
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0003|     his home city or state of residence, he shall provide to the
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0004|     other parent thirty days' notice in writing stating the date
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0005|     and destination of move;
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0006|                         |(b)  there is a rebuttable presumption
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0007|     that a proposed long-distance relocation of a child that does
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0008|     not accommodate the child's relationship with both parents is
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0009|     not in the child's best interests;|
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0010|                         ~[(b)]~ |(c)|  the religious
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0011|     denomination and religious activities, or lack thereof, which
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0012|     were being practiced during the marriage should not be changed
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0013|     unless the parties agree or it has been otherwise resolved as
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0014|     provided in this subsection;
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0015|                         ~[(c)]~ |(d)|  both parents shall have
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0016|     access to school records, teachers and activities.  The type
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0017|     of education, public or private, which was in place during the
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0018|     marriage should continue, whenever possible, and school
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0019|     districts should not be changed unless the parties agree or it
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0020|     has been otherwise resolved as provided in this subsection;
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0021|                         ~[(d)]~ |(e)|  both parents shall have
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0022|     access to medical and dental treatment providers and records. 
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0023|     Each parent has authority to make emergency medical decisions. 
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0024|     Neither parent may contract for major elective medical or
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0025|     dental treatment unless both parents agree or it has been
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0001|     otherwise resolved as provided in this subsection; and
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0002|                         ~[(e)]~ |(f)|  both parents may attend
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0003|     the child's public activities and both parents should know the
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0004|     necessary schedules.  Whatever recreational activities the
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0005|     child participated in during the marriage should continue with
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0006|     the child's agreement, regardless of which of the parents has
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0007|     physical custody.  Also, neither parent may enroll the child
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0008|     in a new recreational activity unless the parties agree or it
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0009|     has been otherwise resolved as provided in this subsection;
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0010|     and
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0011|                    ~[(5)]~ |(6)|  decisions regarding major
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0012|     changes in a child's life may be decided by:
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0013|                         (a)  agreement between the joint
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0014|     custodial parents;
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0015|                         (b)  ~[a requirement]~ |requiring| that
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0016|     the parents seek family counseling, conciliation or mediation
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0017|     service to assist in resolving their differences;
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0018|                         (c)  agreement by the parents to submit
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0019|     the dispute to binding arbitration;
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0020|                         (d)  allocating ultimate responsibility
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0021|     for a particular major decision area to one legal custodian;
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0022|                         (e)  terminating joint custody and
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0023|     awarding sole custody to one person;
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0024|                         (f)  reference to a master pursuant to
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0025|     Rule 53 of the Rules of Civil Procedure for the District
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0001|     Courts; or
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0002|                         (g)  the district court.
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0003|               K.  When any person other than a natural or
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0004|     adoptive parent seeks custody of a child, no such person shall
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0005|     be awarded custody absent a showing of unfitness of the
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0006|     natural or adoptive parent.
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0007|               L.  As used in this section:
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0008|                    (1)  "child" means a person under the age of
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0009|     ~[18]~ |eighteen|;
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0010|                    (2)  "custody" means the authority and
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0011|     responsibility to make major decisions in a child's best
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0012|     ~[interest]~ |interests| in the areas of residence, medical
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0013|     and dental treatment, education or child care, religion and
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0014|     recreation;
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0015|                    (3)  "joint custody" means an order of the
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0016|     court awarding custody of a child to two parents.  Joint
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0017|     custody does not imply an equal division of the child's time
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0018|     between the parents or an equal division of financial
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0019|     responsibility for the child;
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0020|                    (4)  "parent" means a natural parent, adoptive
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0021|     parent or person who is acting as a parent who has or shares
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0022|     legal custody of a child or who claims a right to have or
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0023|     share legal custody;
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0024|                    (5)  "parenting plan" means a document
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0025|     submitted for approval of the court setting forth the
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0001|     responsibilities of each parent individually and the parents
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0002|     jointly in a joint custody arrangement;
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0003|                    (6)  "period of responsibility" ~[is]~ |means|
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0004|     a specified period of time during which a parent is
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0005|     responsible for providing for a child's physical,
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0006|     developmental and emotional needs, including the decision
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0007|     making required in daily living.  Specified periods of
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0008|     responsibility shall not be changed in an instance or more
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0009|     permanently except by the methods of decision making described
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0010|     under ~[the definition of joint custody]~ |Subsection J of
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0011|     this section|;
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0012|                    (7)  "sole custody" means an order of the
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0013|     court awarding custody of a child to one parent; and
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0014|                    (8)  "visitation" ~[is]~ |means| a period of
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0015|     time available to a noncustodial parent, under a sole custody
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0016|     arrangement, during which a child resides with or is under the
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0017|     care and control of the noncustodial parent."
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0018|          Section 2.  EFFECTIVE DATE.--The effective date of the
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0019|     provisions of this act is July 1, 1998.
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0020|                              
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