2015 -- S 0617

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LC000464

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

     Introduced By: Senators Pearson, and Goldin

     Date Introduced: March 05, 2015

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 15-5-16 and 15-5-16.2 of the General Laws in Chapter 15-5

entitled "Divorce and Separation" are hereby amended to read as follows:

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

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

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

both, to the other.

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

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

      (i) The length of the marriage;

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

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

and employability of the parties; and

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

      (2) In addition, the court shall consider:

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

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

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

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

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

with consideration given to:

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

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

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

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

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

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

and becoming self-supporting;

      (D) The standard of living during the marriage;

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

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

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

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

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

support or maintenance of either the husband or the wife.

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

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

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

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

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

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

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

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

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

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

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

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

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

automatically terminate at once.

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

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

the showing of cause why the right should not be granted or as provided in subdivision 15-5-

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

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

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

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

the court shall consider this to be grounds for a change of custody to the noncustodial parent.

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

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

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

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

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

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

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

      (4) No person shall be granted custody of or visitation with a child if that person has

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

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

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

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

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

     (5) A parent convicted of murder in the first degree of the other parent of a child shall be

denied visitation unless the child is of a suitable age as determined by the court to assent to the

visitation. Prior to a court order allowing a visit, the child may not visit the offending parent

unless the acting parent, child’s custodian, or legal guardian allows the visit.

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

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

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

sufficient cause to deny visitation.

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

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

pendente lite.

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

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

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

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

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

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

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

injury or assault to another person.

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

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

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

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

appropriate;

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

the child;

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

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

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

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

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

consumption of alcohol or controlled substances during the visitation; and

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

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

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

between spouses or people who have a child in common:

      (i) Attempting to cause or causing physical harm;

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

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

or duress.

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

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

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

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

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

custody and visitation.

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

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

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

or deployment out of state.

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      (h) If there is no existing order establishing the terms of parental rights and

responsibilities or parent-child contact and it appears that deployment or mobilization is

imminent, upon motion by either parent, the court shall expedite a hearing to establish temporary

parental rights and responsibilities and parent-child contact to ensure the deploying parent has

access to the child, to ensure disclosure of information, to grant other rights and duties set forth

herein, and to provide other appropriate relief. Any initial pleading filed to establish parental

rights and responsibilities for or parent-child contact with a child of a deploying parent shall be so

identified at the time of filing by stating in the text of the pleading the specific facts related to

deployment.

     15-5-16.2. Child support. -- (a) In a proceeding for divorce, divorce from bed and board,

a miscellaneous petition without the filing of divorce proceedings, or child support, the court shall

order either or both parents owing a duty of support to a child to pay an amount based upon a

formula and guidelines adopted by an administrative order of the family court. If, after calculating

support based upon court established formula and guidelines, the court, in its discretion, finds the

order would be inequitable to the child or either parent, the court shall make findings of fact and

shall order either or both parents owing a duty of support to pay an amount reasonable or

necessary for the child's support after considering all relevant factors including, but not limited to:

      (1) The financial resources of the child;

      (2) The financial resources of the custodial parent;

      (3) The standard of living the child would have enjoyed had the marriage not been

dissolved;

      (4) The physical and emotional condition of the child and his or her educational needs;

and

      (5) The financial resources and needs of the non-custodial parent.

      (b) The court may, if in its discretion it deems it necessary or advisable, order child

support and education costs for children attending high school at the time of their eighteenth

(18th) birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth

(19th) birthday, subject to the exceptions set forth in subsection (c) of this section.

     (c)(1) The court may make appropriate orders of maintenance, support and education of

any child who has attained the age of eighteen (18) but who has not attained the age of twenty-

one (21) and whose legal address is in the home of a parent, and is principally dependent upon

said parent for maintenance.

     (2) The court may make appropriate orders of maintenance, support and education for

any child who has attained the age of twenty-one (21), but who has not attained the age of

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twenty-three (23), if such child's legal address is in the home of a parent, and such child is

principally dependent upon said parent for maintenance due to the enrollment of such child in an

educational program excluding educational costs beyond an undergraduate degree.

     Notwithstanding the foregoing, the court, in its discretion, may order child support, in the

case of a child with a severe physical or mental impairment still living with or under the care of a

parent, beyond the child's emancipation as defined above. The court shall consider the following

factors when making its determination: (1) the nature and extent of the disability; (2) the cost of

the extraordinary medical expenses; (3) the ability of the child to earn income; (4) the financial

resources of the child; (5) the financial resources of the parents; (6) the inability of the primary

caregiver of the child to sustain gainful employment on a full-time basis due to the care

necessitated by the child. The onset of the disability must have occurred prior to the emancipation

event. If a child support order for a child with a severe physical or mental impairment has been

terminated, suspended or expired, the court shall consider the factors in this paragraph and has the

discretion to order child support for this child prospectively based upon established child support

guidelines. The court may periodically review the case to determine if circumstances warrant the

continuation of child support.

      (c)(d)(1) The court may, if in its discretion it deems it necessary or advisable, appoint an

attorney or a guardian ad litem to represent the interest of a minor or dependent child with respect

to his or her support, custody, and visitation.

      (i) In determining whether an appointment should be made, the court shall consider the

extent to which a guardian ad litem may assist in providing information concerning the best

interest of the child; the age of the child; the wishes of the parents as well as their financial

resources; the nature of the proceeding including the level of contentiousness, allegations of child

abuse or domestic violence and the risk of harm to the child if a guardian is not appointed; or

conflicts of interest between the child and parents or siblings;

      (ii) The guardian ad litem shall be appointed from a list of persons properly credentialed

pursuant to administrative orders of the chief judge of the family court;

      (iii) The court shall enter an order of appointment stating the specific assignment the

optional and mandatory duties of the guardian ad litem, the guardian's access to the child and

confidential information regarding the child, and a provision for payment of the costs and fees of

the guardian ad litem;

      (iv) Communications made to a guardian, including those made by a child, are not

privileged and may or may not be disclosed to the parties, the court or to professionals providing

services to the child or the family;

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      (v) The guardian ad litem shall meet with the child, conduct an investigation and upon

request of the court shall prepare an oral or written report that contains the procedural background

of the case, identification of all persons interviewed and other sources of information, a statement

of the child's emotional, medical, educational and social service needs, the child's wishes and

other factors relevant to the court's determination regarding the best interests of the child;

      (vi) Any written report of the guardian ad litem shall be marked as a full exhibit in the

proceedings, subject to cross-examination;

      (vii) If the guardian ad litem requests confidential health care information and consent is

withheld, he or she shall apply to the court for leave to obtain such information after compliance

with § 5-37.3-6.1;

      (viii) The guardian ad litem shall be given notice of and should appear at all proceedings

in family court that affect the interests of the child;

      (ix) A person serving as a guardian ad litem under this section acts as the court's agent

and is entitled to quasi-judicial immunity for acts performed within the scope of the duties of the

guardian ad litem;

      (x) The chief judge of the family court shall issue, through administrative orders, rules

governing the appointment and performance of guardians ad litem in domestic proceedings.

      (2) After a decree for support has been entered, the court may from time to time upon the

petition of either party review and alter its decree relative to the amount of support and the

payment of it, and may make any decree relative to it which it might have made in the original

suit. The decree may be made retroactive in the court's discretion only to the date that notice of a

petition to modify was given to the adverse party if the court finds that a substantial change in

circumstances has occurred; provided, that the court shall set forth in its decision the specific

findings of fact which show a substantial change in circumstances and upon which findings of

facts the court has decided to make the decree retroactive. The child support order shall continue

in full force and effect, by wage withholding, after the youngest child is emancipated, and shall

be applied towards any arrearage due and owing, as indicated on the child support computer

system. Upon satisfaction of the arrears due and owing the child support order shall be

automatically suspended and wage withholding terminated without the necessity of returning to

family court.

      (d)(e)(1) In a proceeding to enforce a child support order, or a spousal support order for a

custodial parent having custody of a minor child, the court or its magistrate may assign to the

obligee such tangible personal property of the obligor that will be sufficient to satisfy the child or

spousal support arrearage owed. The court or its magistrate, after a hearing, shall establish the

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amount of the child or spousal support arrearage, and the nature and value of the tangible

personal property. To effect the assignment, the court or its magistrate may order the obligor to

execute and deliver the documents of title which may be necessary to complete the transfer of

title to the property, and may order the obligor to deliver possession of the property to the

obligee. Whenever the obligor fails to comply with the order assigning the property, the order of

assignment shall be regarded as a judgment vesting title to the property in the obligor as fully and

completely as if the obligor had executed and delivered the documents of title.

      (2) Any order for child support issued by the family court shall contain a provision

requiring either or both parents owing a duty of support to a child to obtain health insurance

coverage for the child when coverage is available to the parent or parents through their

employment without cost or at a reasonable cost. "Reasonable cost" shall be defined in

accordance with guidelines adopted by administrative order of the family court in conjunction

with the child support guidelines.

      (3) Any existing child support orders may be modified in accordance with this

subsection unless the court makes specific written findings of fact that take into consideration the

best interests of the child and conclude that a child support order or medical order would be

unjust or inappropriate in a particular case.

      (4) In addition, the national medical support notice shall be issued with respect to all

orders issued, enforced, or modified on or after October 1, 2002, in accordance with chapter 29 of

title 15. The notice shall inform the employer of provisions in the child support order, for health

care coverage for the child, and contain instructions on how to implement this coverage. In lieu of

the court ordering the non-custodial parent to obtain or maintain health care coverage for the

child, the court may order the non-custodial parent to contribute a weekly cash amount towards

the medical premium for health care coverage paid by the state of Rhode Island and/or the

custodial parent. The method to determine a reasonable weekly amount shall be addressed in the

family court administrative order pertaining to the child support guidelines.

      (e)(f) In a proceeding to establish support, the court in its discretion may, after

opportunity for a hearing, issue a temporary order for child support payable into the registry of

the court and to be held pending entry of judgment. In the event of a final adjudication requiring

no payment or payments in an amount less than those payments which have been made pursuant

to a temporary order under this section, the defendant shall be entitled to a refund of all or a

portion of the amounts paid.

      (f)(g) In any proceeding to establish support, or in any case in which an obligor owes

past due support, for a child or children receiving public assistance pursuant to chapter 5.1 of title

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40, the court or its magistrate, upon a finding that an able bodied absent parent obligor is

unemployed, underemployed or lacks sufficient income or resources from which to make

payment of support equal to the public assistance payment for the child or children, or is unable

to pay the arrearages in accordance with a payment plan, may order that parent to perform unpaid

community service for at least twenty (20) hours per week through community service

placements arranged and supervised by the department of human services or to participate in any

work activities that the court deems appropriate. The performance of community service shall not

be a basis for retroactive suspension of arrears due and owing.

      (g)(h)(1) In any proceeding to establish support for a minor child whose adjudicated

parent is a minor (minor-parent), the court or its magistrate may order a grandparent of the minor

child to reimburse the department of human services in an amount not to exceed the total amount

of cash assistance benefits paid to or for the minor child pursuant to chapter 5.1 of title 40 until

the minor-parent reaches the age of eighteen (18), less any payment made to the department by

the minor parent.

      (2) The obligation of reimbursement for the minor child shall be the joint and several

responsibility of the minor parent and the grandparent(s) until the minor parent reaches the age of

eighteen (18); provided, that each joint obligor shall have a right of contribution against each joint

obligor, which right shall be enforceable by an action in the family court.

      (h)(i)(1) All support orders established or modified in the state on or after October 1,

1998, shall be recorded with the Rhode Island family court department of human services child

support computer enforcement system, which maintains the official registry of support orders

entered in accordance with applicable administrative orders issued by the Rhode Island family

court. The support order shall be recorded whether or not services are being provided under the

IV-D state plan.

      (2) The obligee to a paternity or child support proceeding shall be required to file with

the family court, upon the entry of the order, the appropriate form as provided by family court

which includes the full name of the parties, residential and mailing address, telephone number,

drivers license number, social security number and the name, address and telephone number of

the employer. The form shall also include the full order amount and date and amount of

arrearages if any, the name of the child(ren), their date of birth, address and social security

number and any other information as required by administrative order.

      (3) After this, each party is required to file an amended form whenever any of the

information contained on the original form has been changed in any way, within ten (10) days of

the change. The information shall be entered in the child support enforcement computer system

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within five (5) business days of receipt of the amended form.

      (i)(j) In any subsequent child support enforcement action between the parties, upon

sufficient showing that diligent effort has been made to ascertain the location of such a party, the

court may deem state due process requirements for notice and service of process to be met with

respect to the party, upon service by first class mail or, where appropriate, by service as specified

in the Rhode Island rules of procedure for domestic relations for the Family Court of Rhode

Island, of written notice to the most recent residential or employer address of record.

      [See § 12-1-15 of the General Laws.]

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

***

     This act would provide that if a child is over the age of eighteen (18), but less than

twenty-three (23) and whose legal address is in the home of a parent and dependent upon that

parent for maintenance because he or she is in an undergraduate educational course, child support

may be paid and reasonable medical insurance for the child may be provided.

     This act would take effect upon passage.

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