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:

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

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entitled "Divorce and Separation" are 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

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been convicted under or pled nolo contendere to a violation of §§ 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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     (5) A parent convicted of murder in the first degree of the other parent of a child shall be

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

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

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

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      (5)(6) 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 § 15-5-19, the court, when

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

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

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

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

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

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

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

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

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deployment.

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

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

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

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

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

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

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

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

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      (1) The financial resources of the child;

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      (2) The financial resources of the custodial parent;

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

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dissolved;

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

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and

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

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

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

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

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

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

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

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

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said parent for maintenance.

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

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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

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

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educational program excluding educational costs beyond an undergraduate degree.

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

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

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

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

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

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

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

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

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

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

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

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

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continuation of child support.

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

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

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to his or her support, custody, and visitation.

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

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

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

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

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

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conflicts of interest between the child and parents or siblings;

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

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

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

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

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

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the guardian ad litem;

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

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

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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

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

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

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

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

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

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proceedings, subject to cross-examination;

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

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

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with § 5-37.3-6.1;

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

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in family court that affect the interests of the child;

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

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

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guardian ad litem;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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family court.

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

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

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

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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

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

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

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

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

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

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

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

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

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

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

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

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with the child support guidelines.

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

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

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

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unjust or inappropriate in a particular case.

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

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

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

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

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

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

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

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

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family court administrative order pertaining to the child support guidelines.

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

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

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

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

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

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portion of the amounts paid.

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

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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

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

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

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

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

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

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

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

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

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

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

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

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

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the minor parent.

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

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

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

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

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

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

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

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

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

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IV-D state plan.

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

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

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

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

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

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

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number and any other information as required by administrative order.

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

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

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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.

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

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

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

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

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

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

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

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     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

***

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

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

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

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

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     This act would take effect upon passage.

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