2012 -- H 7274 SUBSTITUTE A

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LC00821/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO DOMESTIC RELATIONS - UNIFORM CHILD CUSTODY JURISDICTION

AND ENFORCEMENT

     Introduced By: Representatives Gallison, Martin, Azzinaro, Messier, and Naughton

     Date Introduced: January 26, 2012

     Referred To: House Veterans` Affairs

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 15-14.1 of the General Laws entitled "Uniform Child Custody

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Jurisdiction and Enforcement Act" is hereby amended by adding thereto the following sections:

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     15-14.1-43. Custody and visitation upon military temporary duty, deployment or

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mobilization. -- (a) Purpose. – It is the purpose of this section to provide a means by which to

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facilitate a fair, efficient, and swift process to resolve matters regarding custody and visitation

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when a parent receives temporary duty, deployment, or mobilization orders from the military.

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     (b) Definitions. – As used in this chapter, the following words and phrases shall have the

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following meanings unless the context shall indicate another or different meaning or intent:

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     (1) “Deployment” means the temporary transfer of a service member serving in an active-

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duty status to another location in support of combat or some other military operation.

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     (2) “Mobilization” means the call-up of a National Guard or Reserve service member to

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extended active duty status. For purposes of this definition, “mobilization” does not include

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National Guard or Reserve annual training.

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     (3) “Temporary duty” means the transfer of a service member from one military base to a

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different location, usually another base, for a limited period of time to accomplish training or to

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assist in the performance of a noncombat mission.

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     (c) Custody. – When a parent who has custody, or has joint custody with primary

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physical custody, receives temporary duty, deployment, or mobilization orders from the military

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that involve moving a substantial distance from the parent’s residence or otherwise have a

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material effect on the parent’s ability to exercise custody responsibilities:

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     (1) Any temporary custody order for the child during the parent’s absence shall end no

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later than ten (10) days after the parent returns, but shall not impair the discretion of the court to

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conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the

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filing of a verified motion for emergency custody alleging an immediate danger of irreparable

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harm to the child; and

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     (2) Exclusion of military service from determination of the child’s best interest. The

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temporary duty, mobilization, or deployment and the temporary disruption to the child’s schedule

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shall not be a factor in a determination of change of circumstances if a motion is filed to transfer

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custody from the service member.

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     (d) Visitation. – If the parent with visitation rights receives military temporary duty,

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deployment, or mobilization orders that involve moving a substantial distance from the parent’s

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residence or otherwise have a material effect on the parent’s ability to exercise visitation rights,

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the court may delegate the parent’s visitation rights, or a portion thereof, to a family member with

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a close and substantial relationship to the minor child for the duration of the parent’s absence, if

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delegating visitation rights is in the child’s best interest.

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     (e) Expedited Hearings. – Upon motion of a parent who has received military temporary

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duty, deployment, or mobilization orders, the court shall, for good cause shown, hold an

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expedited hearing in custody and visitation matters instituted under this section when the military

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duties of the parent have a material effect on the parent’s ability, or anticipated ability, to appear

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in person at a regularly scheduled hearing.

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     (f) Electronic Communications. – Upon motion of a parent who has received military

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temporary duty, deployment, or mobilization orders, the court shall, upon reasonable advance

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notice and for good cause shown, allow the parent to present testimony and evidence by

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electronic means in custody and visitation matters instituted under this section when the military

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duties of the parent have a material effect on the parent’s ability to appear in person at a regularly

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scheduled hearing. The phrase “electronic means” includes communication by telephone, video

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teleconference, or the Internet.

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     (g) Nothing in this section shall alter the duty of the court to consider “the best interest of

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the child” in deciding custody or visitation matters.

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     15-14.1-44. Final order, modification. -- (a) If a deploying parent is required to be

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separated from a child, a court shall not enter a final order modifying parental rights and

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responsibilities and parent-child contact in an existing order until ninety (90) days after the

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deployment ends, unless such modification is agreed to by the deploying parent.

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     (b) Absence created by deployment or mobilization or the potential for future deployment

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or mobilization shall not be the sole factor supporting a real, substantial, and unanticipated

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change in circumstances pursuant to subsection 15-14.1-43(c)(2) of this title or grounds sufficient

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to support a permanent modification of the parental rights and responsibilities or parent-child

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contact established in an existing order.

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     15-14.1-45. Temporary modification. -- (a) Upon motion of a deploying or non-

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deploying parent, the court shall enter a temporary order modifying parental rights and

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responsibilities or parent-child contact during the period of deployment or mobilization when:

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     (1) A military parent who has shared, soled, or primary legal or physical parental rights

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and responsibilities for a child or who has parent-child contact pursuant to an existing court order

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has received notice from military leadership that he or she will deploy or mobilize in the near

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future; and

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     (2) The deployment or mobilization would have a material effect upon his or her ability

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to exercise such parental rights and responsibilities or parent-child contact.

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     (b) Motions for modification because of deployment shall be heard by the court as

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expeditiously as possible, and shall be a priority for this purpose.

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     (c)(1) All temporary orders shall set a date certain for the end of deployment and the start

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of the transition period. If deployment is extended, the temporary order shall remain in effect

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during the extended deployment, and the transition schedule shall take effect at the end of the

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extended deployment. In that case, the non-deployed parent shall notify the court in accordance

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with this subdivision which notice shall not prejudice the deployed parent’s right to return to the

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prior order once the temporary order expires as provided in subdivision (2) of this section.

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     (2) The temporary order shall expire upon the completion of the transition, and the prior

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order for parental rights and responsibilities and parent-child contact shall be in effect.

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     (d) Upon motion of the deploying parent, the court may delegate his or her parent-child

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contact rights, or a portion of them, to a family member, a person with whom the deploying

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parent cohabits, or another person with a close and substantial relationship to the minor child or

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children for the duration of the deployment, upon a finding that it is in the child’s best interest.

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Such delegated contact does not create separate right to parent-child contact for a person other

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than a parent once the temporary order is no longer in effect.

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     (e) A temporary modification order issued pursuant to this section shall designate the

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deploying parent’s parental rights and responsibilities for a parent-child contact with a child

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during a period of leave granted to the deploying parent, in the best interest of the child.

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     (f) A temporary order issued under this section may require any of the following if the

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court finds that it is in the best interest of the child:

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     (1) The non-deploying parent shall make the child reasonably available to the deploying

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parent when the deploying parent has leave.

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     (2) The non-deploying parent shall facilitate opportunities for telephonic, electronic mail,

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and other such contact between the deploying parent and the child during deployment.

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     (3) The deploying parent shall provide timely information regarding his or her leave

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schedule to the non-deploying parent. Actual leave dates are subject to change with little notice

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due to military necessity and shall not be used by the non-deploying parent to prevent parent-

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child contact.

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     (g) A court order modifying a previous order for parental rights and responsibilities or

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parent-child contact because of deployment shall specify that the deployment is basis for the

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order, and it shall be entered by the court as a temporary order. The order shall further require the

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non-deploying parent to provide the court and the deploying parent with thirty (30) days advance

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written notice of any change of address and any change of telephone number.

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     15-14.1-46. Emergency motion to modify permanent modification. – (a) Upon the

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return of the deploying parent, either parent may file a motion to modify the temporary order on

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the grounds that compliance with the order will result in immediate danger of irreparable harm to

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the child, and may request that the court issue an ex parte order. The deploying parent may file

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such a motion prior to his or her return. The motion shall be accompanied by an affidavit in

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support of the requested order. Upon a finding of irreparable harm based on the facts set forth in

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the affidavit, the court may issue an ex parte order modifying parental rights and responsibilities

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and parent-child contact. If the court issues an ex parte order, the court shall set the matter for

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hearing within ten (10) days from the issuance of the order.

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     (b) Nothing in this chapter shall preclude the court from hearing a motion for permanent

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modification of parental rights and responsibilities or parent-child contact prior to, or upon return

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of the deploying parent. The moving party shall bear the burden of showing a real, substantial,

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and unanticipated change in circumstances and that resumption of the parental rights and

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responsibilities or parent-child order in effect before deployment is no longer in the child’s best

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interests. The absence created by deployment or mobilization and any resulting temporary

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disruption to the child shall not be considered the sole factors in determining whether there has

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been a real, substantial, and unanticipated change of circumstances in regard to the motion to

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modify.

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     15-14.1-47. Testimony and evidence. -- Upon motion of a deploying parent, provided

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reasonable advance notice is given and good cause shown, the court shall allow such parent to

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present testimony and evidence by electronic means with respect to parental rights and

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responsibilities or parent-child contact matters instituted under this section when the deployment

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of that person has a material effect on his or her ability to appear in person at a regularly

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scheduled hearing. The phrase “electronic means” includes communication by telephone or video

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teleconference.

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     15-14.1-48. No existing order. -- If there is no existing order establishing the terms of

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parental rights and responsibilities or parent-child contact and it appears that deployment or

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mobilization is imminent, upon motion by either parent, the court shall expedite a hearing to

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establish temporary parental rights and responsibilities and parent-child contact to ensure the

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deploying parent has access to the child, to ensure disclosure of information, to grant other rights

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and duties set forth herein, and to provide other appropriate relief. Any initial pleading filed to

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establish parental rights and responsibilities for or parent-child contact with a child of a deploying

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parent shall be so identified at the time of filing by stating in text of the pleading the specific facts

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related to deployment.

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     15-14.1-49. Duty to cooperate and disclose information. -- (a) Because military

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necessity may preclude court adjudication before deployment, the parties shall cooperate with

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each other in an effort to reach a mutually agreeable resolution of parental rights and

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responsibilities, parent-child contact, and child support. Each party shall provide information to

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one another in an effort to facilitate agreement on these issues.

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     (b) Within fourteen (14) days of receiving notification of deployment or mobilization in

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the near future from his or her military leadership, the military parent shall provide written notice

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to the non-deploying parent of the same. If less than fourteen (14) days notice is received by the

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military parent then notice must be given immediately upon receipt of notice to the non-deploying

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parent.

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     15-14.1-50. Failure to exercise parent-child contact rights. -- In determining whether a

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parent has failed to exercise parent-child contact, the court shall not count any time periods

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during which the parent did not exercise such contact due to the material effect of the parent’s

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military duties on the contact schedule.

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     SECTION 2. Section 15-5-16 of the General Laws in Chapter 15-5 entitled "Divorce and

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Separation" is hereby amended to read as follows:

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     15-5-16. Alimony and counsel fees -- Custody of children. -- (a) In granting any

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petition for divorce, divorce from bed and board, or relief without the commencement of divorce

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proceedings, the family court may order either of the parties to pay alimony or counsel fees, or

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both, to the other.

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      (b) (1) In determining the amount of alimony or counsel fees, if any, to be paid, the

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court, after hearing the witnesses, if any, of each party, shall consider:

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      (i) The length of the marriage;

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      (ii) The conduct of the parties during the marriage;

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      (iii) The health, age, station, occupation, amount and source of income, vocational skills,

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and employability of the parties; and

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      (iv) The state and the liabilities and needs of each of the parties.

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      (2) In addition, the court shall consider:

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      (i) The extent to which either party is unable to support herself or himself adequately

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because that party is the primary physical custodian of a child whose age, condition, or

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circumstances make it appropriate that the parent not seek employment outside the home, or seek

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only part-time or flexible-hour employment outside the home;

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      (ii) The extent to which either party is unable to support herself or himself adequately

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with consideration given to:

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      (A) The extent to which a party was absent from employment while fulfilling

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homemaking responsibilities, and the extent to which any education, skills, or experience of that

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party have become outmoded and his or her earning capacity diminished;

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      (B) The time and expense required for the supported spouse to acquire the appropriate

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education or training to develop marketable skills and find appropriate employment;

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      (C) The probability, given a party's age and skills, of completing education or training

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and becoming self-supporting;

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      (D) The standard of living during the marriage;

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      (E) The opportunity of either party for future acquisition of capital assets and income;

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      (F) The ability to pay of the supporting spouse, taking into account the supporting

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spouse's earning capacity, earned and unearned income, assets, debts, and standard of living;

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      (G) Any other factor which the court expressly finds to be just and proper.

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      (c) (1) For the purposes of this section, "alimony" is construed as payments for the

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support or maintenance of either the husband or the wife.

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      (2) Alimony is designed to provide support for a spouse for a reasonable length of time

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to enable the recipient to become financially independent and self-sufficient. However, the court

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may award alimony for an indefinite period of time when it is appropriate in the discretion of the

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court based upon the factors set forth in subdivision (b)(2)(ii)(B). After a decree for alimony has

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been entered, the court may from time to time upon the petition of either party review and alter its

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decree relative to the amount and payment of the alimony, and may make any decree relative to it

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which it might have made in the original suit. The decree may be made retroactive in the court's

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discretion to the date that the court finds that a substantial change in circumstances has occurred;

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provided, the court shall set forth in its decision the specific findings of fact which show a

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substantial change in circumstances and upon which findings of facts the court has decided to

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make the decree retroactive. Nothing provided in this section shall affect the power of the court as

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subsequently provided by law to alter, amend, or annul any order of alimony previously entered.

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Upon the remarriage of the spouse who is receiving alimony, the obligation to pay alimony shall

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automatically terminate at once.

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      (d) (1) In regulating the custody of the children, the court shall provide for the

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reasonable right of visitation by the natural parent not having custody of the children, except upon

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the showing of cause why the right should not be granted. The court shall mandate compliance

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with its order by both the custodial parent and the children. In the event of noncompliance, the

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noncustodial parent may file a motion for contempt in family court. Upon a finding by the court

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that its order for visitation has not been complied with, the court shall exercise its discretion in

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providing a remedy, and define the noncustodial parent's visitation in detail. However, if a second

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finding of noncompliance by the court is made, the court shall consider this to be grounds for a

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change of custody to the noncustodial parent.

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      (2) In regulating the custody and determining the best interests of children, the fact that a

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parent is receiving public assistance shall not be a factor in awarding custody.

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      (3) A judicial determination that the child has been physically or sexually abused by the

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natural parent shall constitute sufficient cause to deny the right of visitation. However, when the

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court enters an order denying visitation under this section, it shall review the case at least

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annually to determine what, if any, action the parent has taken to rehabilitate himself or herself

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and whether the denial of visitation continues to be in the child's best interests.

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      (4) The court may order a natural parent who has been denied the right of visitation due

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to physical or sexual abuse of his or her child to engage in counseling. The failure of the parent to

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engage in counseling, ordered by the court pursuant to this section, shall constitute sufficient

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cause to deny visitation.

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      (e) In all hearings regarding denial of visitation, the court shall make findings of fact.

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      (f) This chapter does not affect the right of the family court to award alimony or support

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pendente lite.

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      (g) (1) Notwithstanding the provisions of this section and section 15-5-19, the court,

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when making decisions regarding child custody and visitation, shall consider evidence of past or

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present domestic violence. Where domestic violence is proven, any grant of visitation shall be

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arranged so as to best protect the child and the abused parent from further harm.

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      (2) In addition to other factors that a court must consider in a proceeding in which the

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court has made a finding of domestic or family violence, the court shall consider as primary the

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safety and well-being of the child and of the parent who is the victim of domestic or family

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violence. The court shall also consider the perpetrator's history of causing physical harm, bodily

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injury or assault to another person.

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      (3) In a visitation or custody order, as a condition of the order, the court may:

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      (i) Order the perpetrator of domestic violence to attend and successfully complete, to the

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satisfaction of the court, a certified batterer's intervention program;

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      (ii) Order the perpetrator to attend a substance abuse program whenever deemed

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appropriate;

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      (iii) Require that a bond be filed with the court in order to ensure the return and safety of

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the child;

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      (iv) Order that the address and telephone number of the child be kept confidential;

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      (v) Order an exchange of the child to occur in a protected setting, or supervised by

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another person or agency; provided that, if the court allows a family or household member to

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supervise visitation, the court shall establish conditions to be followed during visitation;

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      (vi) Order the perpetrator of domestic violence to abstain from possession or

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consumption of alcohol or controlled substances during the visitation; and

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      (vii) Impose any other condition that is deemed necessary to provide for the safety of the

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child, the victim of domestic violence, or other family or household member.

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      (4) "Domestic violence" means the occurrence of one or more of the following acts

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between spouses or people who have a child in common:

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      (i) Attempting to cause or causing physical harm;

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      (ii) Placing another in fear of imminent serious physical harm;

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      (iii) Causing another to engage involuntarily in sexual relations by force, threat of force,

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or duress.

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      (5) In every proceeding in which there is at issue the modification of an order for

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custody or visitation of a child, the finding that domestic or family violence has occurred since

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the last custody determination constitutes a prima facie finding of a change of circumstances.

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      (6) The fact that a parent is absent or relocates because of an act of domestic or family

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violence by the other parent shall not weigh against the relocating or absent parent in determining

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custody and visitation.

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      (7) A party's absence, relocation, or failure to comply with custody and visitation orders

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shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the

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reason for the absence, relocation, or failure to comply is the party's activation to military service

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or deployment out of state.

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     If there is no existing order establishing the terms of parental rights and responsibilities or

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parent-child contact and it appears that deployment or mobilization is imminent, upon motion by

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either parent, the court shall expedite a hearing to establish temporary parental rights and

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responsibilities and parent-child contact to ensure the deploying parent has access to the child, to

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ensure disclosure of information, to grant other rights and duties set forth herein, and to provide

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other appropriate relief. Any initial pleading filed to establish parental rights and responsibilities

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for or parent-child contact with a child of a deploying parent shall be so identified at the time of

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filing by stating in the text of the pleading the specific facts related to deployment.

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     SECTION 3. This act shall take effect upon passage.

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LC00821/SUB A/2

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO DOMESTIC RELATIONS - UNIFORM CHILD CUSTODY JURISDICTION

AND ENFORCEMENT

***

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     This act would require that if there are no existing orders establishing parental rights and

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deployment or mobilization is imminent, upon motion, the court would expedite a hearing to

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ensure the deployed parent has access to the child and would require that the initial pleading state

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the facts related to deployment.

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     This act would take effect upon passage.

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LC00821/SUB A/2

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