2019 -- S 0609

========

LC002032

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

____________

A N   A C T

RELATING TO DOMESTIC RELATIONS - DIVORCE AND SEPARATION -- CHILD

SUPPORT

     

     Introduced By: Senators Paolino, Pearson, and DiPalma

     Date Introduced: March 14, 2019

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

1

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

2

and Separation" is hereby amended to read as follows:

3

     15-5-16.2. Child support.

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

support after considering all relevant factors including, but not limited to:

12

     (1) The financial resources of the child;

13

     (2) The financial resources of the custodial parent;

14

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

15

dissolved;

16

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

17

and

18

     (5) The financial resources and needs of the non-custodial parent, provided, that in

 

1

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

2

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

3

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

4

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

5

(19th) birthday. If, however, any children are attending a two (2) year or four (4) year college and

6

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

7

support extended until age twenty-one (21).

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

warrant the continuation of child support.

21

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

22

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

23

to his or her support, custody, and visitation.

24

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

25

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

26

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

27

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

28

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

29

conflicts of interest between the child and parents or siblings;

30

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

31

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

32

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

33

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

34

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

 

LC002032 - Page 2 of 10

1

the guardian ad litem;

2

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

3

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

4

services to the child or the family;

5

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

6

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

7

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

8

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

9

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

10

child;

11

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

12

proceedings, subject to cross-examination;

13

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

14

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

15

with § 5-37.3-6.1;

16

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

17

in family court that affect the interests of the child;

18

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

19

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

20

guardian ad litem;

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

make the decree retroactive. In modifying the order, incarceration may not be treated as voluntary

32

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

33

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

34

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

 

LC002032 - Page 3 of 10

1

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

2

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

3

without the necessity of returning to family court.

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

 

LC002032 - Page 4 of 10

1

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

2

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

3

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

4

with the child support guidelines.

5

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

6

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

7

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

8

inappropriate in a particular case.

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

family court administrative order pertaining to the child support guidelines.

18

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

19

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

20

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

21

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

22

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

23

amounts paid.

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

 

LC002032 - Page 5 of 10

1

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

2

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

3

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

4

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

5

minor parent.

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

plan.

16

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

17

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

18

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

19

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

20

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

21

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

22

and any other information as required by administrative order.

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

in the Rhode Island rules of procedure for domestic relations for the family court of Rhode Island,

32

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

33

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

34

     SECTION 2. Section 15-9-1 of the General Laws in Chapter 15-9 entitled "Support of

 

LC002032 - Page 6 of 10

1

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

2

amended to read as follows:

3

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

4

having custody of the child.

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

support after considering all relevant factors, including, but not limited to:

15

     (1) The financial resources of the child;

16

     (2) The financial resources of the custodial parent;

17

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

18

dissolved;

19

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

20

and

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

circumstances and why the decree should be made retroactive.

 

LC002032 - Page 7 of 10

1

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

2

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

3

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

4

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

5

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

6

with the child support guidelines.

7

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

8

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

9

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

10

inappropriate in a particular case.

11

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

12

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

13

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

14

care coverage for the child and of the method to implement this coverage. In lieu of the court

15

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

16

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

17

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

18

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

19

administrative order pertaining to the child support guidelines.

20

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

21

shall be recorded with the Rhode Island family court/department of administration, division of

22

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

23

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

24

Island family court.

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

C.F.R. Part 300.

 

LC002032 - Page 8 of 10

1

     SECTION 3. This act shall take effect upon passage.

========

LC002032

========

 

LC002032 - Page 9 of 10

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS - DIVORCE AND SEPARATION -- CHILD

SUPPORT

***

1

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

2

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

3

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

4

     This act would take effect upon passage.

========

LC002032

========

 

LC002032 - Page 10 of 10