2012 -- H 7274 SUBSTITUTE A AS AMENDED

=======

LC00821/SUB A/2

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

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:

1-1

     SECTION 1. Section 15-5-16 of the General Laws in Chapter 15-5 entitled "Divorce and

1-2

Separation" is hereby amended to read as follows:

1-3

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

1-4

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

1-5

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

1-6

both, to the other.

1-7

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

1-8

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

1-9

      (i) The length of the marriage;

1-10

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

1-11

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

1-12

and employability of the parties; and

1-13

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

1-14

      (2) In addition, the court shall consider:

1-15

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

1-16

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

1-17

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

1-18

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

2-19

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

2-20

with consideration given to:

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

and becoming self-supporting;

2-28

      (D) The standard of living during the marriage;

2-29

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

2-30

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

2-31

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

2-32

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

2-33

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

2-34

support or maintenance of either the husband or the wife.

2-35

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

2-36

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

2-37

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

2-38

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

2-39

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

2-40

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

2-41

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

2-42

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

2-43

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

2-44

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

2-45

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

2-46

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

2-47

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

2-48

automatically terminate at once.

2-49

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

2-50

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

2-51

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

2-52

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

2-53

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

3-1

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

3-2

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

3-3

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

3-4

change of custody to the noncustodial parent.

3-5

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

3-6

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

3-7

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

3-8

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

3-9

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

3-10

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

3-11

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

3-12

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

3-13

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

3-14

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

3-15

cause to deny visitation.

3-16

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

3-17

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

3-18

pendente lite.

3-19

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

3-20

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

3-21

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

3-22

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

3-23

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

3-24

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

3-25

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

3-26

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

3-27

injury or assault to another person.

3-28

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

3-29

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

3-30

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

3-31

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

3-32

appropriate;

3-33

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

3-34

the child;

4-1

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

4-2

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

4-3

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

4-4

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

4-5

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

4-6

consumption of alcohol or controlled substances during the visitation; and

4-7

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

4-8

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

4-9

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

4-10

between spouses or people who have a child in common:

4-11

      (i) Attempting to cause or causing physical harm;

4-12

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

4-13

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

4-14

or duress.

4-15

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

4-16

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

4-17

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

4-18

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

4-19

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

4-20

custody and visitation.

4-21

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

4-22

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

4-23

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

4-24

or deployment out of state.

4-25

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

4-26

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

4-27

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

4-28

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

4-29

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

4-30

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

4-31

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

4-32

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

4-33

     SECTION 2. This act shall take effect upon passage.

=======

LC00821/SUB A/2

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO DOMESTIC RELATIONS - UNIFORM CHILD CUSTODY JURISDICTION

AND ENFORCEMENT

***

6-1

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

6-2

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

6-3

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

6-4

the facts related to deployment.

6-5

     This act would take effect upon passage.

=======

LC00821/SUB A/2

=======