2019 -- H 5356

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LC001225

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO DOMESTIC RELATIONS - DIVORCE AND SEPARATION -- CHILD

SUPPORT

     

     Introduced By: Representatives Lyle, Carson, Ajello, Ruggiero, and Tanzi

     Date Introduced: February 08, 2019

     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.

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     (a) In a proceeding for divorce, divorce from bed and board, a miscellaneous petition

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without the filing of divorce proceedings, or child support, the court shall order either or both

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parents owing a duty of support to a child to pay an amount based upon a formula and guidelines

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adopted by an administrative order of the family court. If, after calculating support based upon

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court established formula and guidelines, the court, in its discretion, finds the order would be

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

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or both parents owing a duty of support to pay an amount reasonable or necessary for the child's

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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, provided, that in

 

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establishing a child-support order, incarceration may not be treated as voluntary unemployment.

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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. If, however, any children are attending a two (2) year or four (4) year college and

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the children still live with the custodial parent, a court, in its discretion, may order the child

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support extended until age twenty-one (21).

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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

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

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

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warrant the 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

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

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

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wishes, and other factors relevant to the court's determination regarding the best interests of the

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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, or by the state in accordance with subsection (c)(3) of this section, review

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and alter its decree relative to the amount of support and the payment of it, and may make any

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decree relative to it that it might have made in the original suit. The decree may be made

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retroactive in the court's discretion only to the date that notice of a petition to modify was given

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to the adverse party if the court finds that a substantial change in circumstances has occurred;

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provided, that the court shall set forth in its decision the specific findings of fact that 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. In modifying the order, incarceration may not be treated as voluntary

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unemployment that would prevent the motion from being heard or result in a denial of the

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motion. 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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     (3) When the department of human services, office of child support services, becomes

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aware of the fact, through an electronic data exchange of information with the department of

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corrections, or by any other means, that the noncustodial parent is or will be incarcerated for one

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hundred eighty (180) days or more, the department may automatically file a motion to modify or

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a motion for relief, to be heard before the court via a video conference hearing or other type of

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hearing. A specific request for the filing of this motion need not be made in writing or otherwise

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by the incarcerated, noncustodial parent, but the parent shall be notified of the hearing and

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provided a meaningful opportunity to respond. The court shall schedule a hearing to determine

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the noncustodial parent's ability to pay, taking into consideration the assets and financial

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resources and any benefits the noncustodial parent may be receiving, the length of the sentence,

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and shall modify or suspend all child-support orders, after setting forth in its decision specific

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findings of fact that show circumstances upon which the court has decided to modify or suspend

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all child-support orders during the period of incarceration. Upon the obligor's release, the

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department of human services, office of child support services, shall file a motion for support, and

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a hearing shall be scheduled to determine the obligor's ability to begin paying child support

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pursuant to the child support guidelines in effect. This section does not apply to those individuals

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who are serving a sentence for criminal nonsupport in state or federal prison, or who are found to

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be in civil contempt for failure to pay child support and incarcerated for that reason.

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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 that may be necessary to complete the transfer of title

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to the property, and may order the obligor to deliver possession of the property to the obligee.

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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 subsection

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

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

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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 that 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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enforcement computer 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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that 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, social security number,

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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 Island,

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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. Section 15-9-1 of the General Laws in Chapter 15-9 entitled "Support of

 

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Children [See Title 16 Chapter 97 - The Rhode Island Board of Education Act]" is hereby

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amended to read as follows:

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     15-9-1. Duty of parent to pay support and maintenance to the agency or person

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having custody of the child.

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     (a) Whenever the department of children, youth and families shall pay for the support and

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maintenance of any child pursuant to §§ 42-72-13 and 42-72-14, or whenever another

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department, agency, society, institution, or person having the charge, care, or custody of a child

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shall pay for the support and maintenance of the child, the court shall order either or both parents

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owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted

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by an administrative order of the family court. If, after calculating support based upon court

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established formula and guidelines, the court, in its discretion, finds the proposed order would be

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

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or both parents owing a duty of support to pay an amount reasonable or necessary for the child's

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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) If it deems necessary or advisable, the court may order child support and education

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costs for children attending high school at the time of their eighteenth (18th) birthday and for

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ninety (90) days after graduation, but in no case beyond their nineteenth (19th) birthday. If,

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however, any children are attending a two (2) year or four (4) year college, and the children still

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live with the custodial parent, a court, in its discretion, may order the child support extended until

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age twenty-one (21). In addition, the court may order the support of a child with a severe physical

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or mental impairment to continue until the twenty-first (21st) birthday of the child.

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     (c) After a decree for support has been entered and upon the petition of either party, the

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court may review and alter its decree relative to the amount and payment of support. If the court

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finds that a substantial change in circumstances has occurred, the decree may be made retroactive

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to the date that notice of a petition to modify was given to the adverse party. In such a case the

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court shall set forth in its decision the specific findings of fact which show a substantial change in

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circumstances and why the decree should be made retroactive.

 

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     (d) 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 such 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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     (e) Any existing child support orders may be modified in accordance with this section

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

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

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inappropriate in a particular case.

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     (f) 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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this title. 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 of the method to implement this coverage. In lieu of the court

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

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

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premium for health care coverage paid by the state of Rhode Island and/or the custodial parent.

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The method to determine a reasonable weekly amount shall be addressed in a family court

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administrative order pertaining to the child support guidelines.

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     (g) 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 administration, division of

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taxation child support computer enforcement system. The system maintains the official registry of

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support orders entered in accordance with applicable administrative orders issued by the Rhode

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Island family court.

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

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

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the court may allow for notice and service of process to be made by first class mail or by service

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of written notice to the most recent residential or employer address of record, as specified in the

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

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     (i) The department of children, youth, and families shall not seek child support for

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services to the child which are special education services as defined under state and federal law

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and pursuant to the regulations of the board of regents for elementary and secondary education

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governing the special education of students with disabilities, section two, I., 1.0-4.11 and 34

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C.F.R. Part 300.

 

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     SECTION 3. This act shall take effect upon passage.

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LC001225

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS - DIVORCE AND SEPARATION -- CHILD

SUPPORT

***

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     This act would allow for the extension of child support obligations for non-custodial

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parents beyond emancipation if the children are attending a two (2) or four (4) year college and

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still live with the custodial parent until such children reach the age of twenty-one (21).

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     This act would take effect upon passage.

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LC001225

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