2016 -- H 7852

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LC005130

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO DOMESTIC RELATIONS - DIVORCE AND SEPARATION

     

     Introduced By: Representatives Diaz, Slater, Regunberg, Shekarchi, and Almeida

     Date Introduced: March 03, 2016

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 15-5-16.2 of the General Laws in Chapter 15-5 entitled "Divorce

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and Separation" is hereby amended to read as follows:

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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.

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

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

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

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

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

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

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primary 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) (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 court shall, in the event an obligor

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is incarcerated, immediately schedule a hearing to determine the obligor's ability to pay, taking

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into consideration the obligor's assets and financial resources, and shall modify or suspend all

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child support orders after setting forth in its decision specific findings of fact, which show

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circumstances upon which the court has decided to modify or suspend all child support orders

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during the entire period of incarceration and shall not, upon the obligor's release, schedule a

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hearing to determine the obligor's ability to pay sooner than forty-five (45) days following their

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release. The child support order shall continue in full force and effect, by wage withholding, after

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the youngest child is emancipated, and shall be applied towards any arrearage due and owing, as

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indicated on the child support computer system. Upon satisfaction of the arrears due and owing

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the child support order shall be automatically suspended and wage withholding terminated

 

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without the necessity of returning to family court.

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

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

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to be held pending entry of judgment. In the event of a final adjudication requiring no payment or

 

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payments in an amount less than those payments which have been made pursuant to a temporary

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

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amounts paid.

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

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due support, for a child or children receiving public assistance pursuant to chapter 5.1 of title 40,

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

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

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

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

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

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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) (1) All support orders established or modified in the state on or after October 1, 1998,

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

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

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accordance with applicable administrative orders issued by the Rhode Island family court. The

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support order shall be recorded whether or not services are being provided under the IV-D state

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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) 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 mandate that the family court immediately schedule a hearing to modify

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or suspend any child support orders for any obligor who is incarcerated during the entire period of

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incarceration and prohibits the court from scheduling a hearing to determine the obligor's ability

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to pay sooner than forty-five (45) days after their release from prison.

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     This act would take effect upon passage.

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