2013 -- S 0043 SUBSTITUTE A

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LC00017/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

     Introduced By: Senators Bates, McCaffrey, Algiere, Walaska, and Miller

     Date Introduced: January 16, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. 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 or as provided in subdivision 15-5-

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16(d)(4). The court shall mandate compliance with its order by both the custodial parent and the

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children. In the event of noncompliance, the noncustodial parent may file a motion for contempt

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in family court. Upon a finding by the court that its order for visitation has not been complied

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with, the court shall exercise its discretion in providing a remedy, and define the noncustodial

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parent's visitation in detail. However, if a second finding of noncompliance by the court is made,

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the court shall consider this to be grounds for a 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) No person shall be granted custody of or visitation with a child if that person has been

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convicted under or pled nolo contendere to a violation of sections 11-37-2, 11-37-4, or 11-37-8.1

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or other comparable law of another jurisdiction, and the child was conceived as a result of that

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violation; unless after hearing the family court finds that the natural mother or legal guardian

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consents to visitation with the child, and the court determines that visitation is in the best interest

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of the child, then the court may order supervised visitation and counseling.

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

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

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

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sufficient 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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     SECTION 2. This act shall take effect upon passage.

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LC00017/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

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     This act would prevent a perpetrator of a rape, who thereby fathers a child, from custody

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or visitation except in very limited circumstances.

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     This act would take effect upon passage.

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LC00017/SUB A

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