2023 -- S 1016

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LC002787

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

     Introduced By: Senators F. Lombardi, LaMountain, Burke, Ciccone, and McKenney

     Date Introduced: May 15, 2023

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 15-5-16 of the General Laws in Chapter 15-5 entitled "Divorce and

Separation" is hereby amended to read as follows:

     15-5-16. Alimony and counsel fees — Custody of children.

     (a) In granting any petition for divorce, divorce from bed and board, or relief without the

commencement of divorce proceedings, the family court may order either of the parties to pay

alimony or counsel fees, or both, to the other.

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

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

     (i) The length of the marriage;

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

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

and employability of the parties; and

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

     (2) In addition, the court shall consider:

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

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

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

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

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

consideration given to:

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

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

become outmoded and his or her earning capacity diminished;

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

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

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

becoming self-supporting;

     (D) The standard of living during the marriage;

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

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

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

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

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

or maintenance of either the husband or the wife.

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

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

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

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

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

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

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

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

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

in circumstances and upon which findings of facts the court has decided to make the decree

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

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

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

automatically terminate at once.

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

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

of cause why the right should not be granted or as provided in subdivision 15-5-16(d)(4). The court

shall mandate compliance with its order by both the custodial parent and the children. In the event

of noncompliance, the noncustodial parent may file a motion for contempt in family court. Upon a

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finding by the court that its order for visitation has not been complied with, the court shall exercise

its discretion in providing a remedy, and define the noncustodial parent’s visitation in detail.

However, if a second finding of noncompliance by the court is made, the court shall consider this

to be grounds for a change of custody to the noncustodial parent.

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

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

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

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

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

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

the denial of visitation continues to be in the child’s best interests.

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

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

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

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

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

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

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

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

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

to deny visitation.

     (6) In regulating the custody of children and determining the best interests of children the

family court shall consider the introduction of evidence by an expert through testimony concerning

the existence of parental alienation syndrome, that is where a parent overtly or covertly speaks or

acts in a derogatory manner to or about the other parent during or subsequent to the family court

proceeding, in an attempt to alienate the child or children from the other parent.

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

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

pendente lite.

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

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

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

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

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

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has made a finding of domestic or family violence, the court shall consider as primary the safety

and well-being of the child and of the parent who is the victim of domestic or family violence. The

court shall also consider the perpetrator’s history of causing physical harm, bodily injury or assault

to another person.

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

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

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

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

appropriate;

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

the child;

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

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

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

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

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

of alcohol or controlled substances during the visitation; and

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

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

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

between spouses or people who have a child in common:

     (i) Attempting to cause or causing physical harm;

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

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

duress.

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

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

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

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

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

custody and visitation.

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

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

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

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or deployment out of state.

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

or parent-child contact and it appears that deployment or mobilization is imminent, upon motion

by either parent, the court shall expedite a hearing to establish temporary parental rights and

responsibilities and parent-child contact to ensure the deploying parent has access to the child, to

ensure disclosure of information, to grant other rights and duties set forth herein, and to provide

other appropriate relief. Any initial pleading filed to establish parental rights and responsibilities

for or parent-child contact with a child of a deploying parent shall be so identified at the time of

filing by stating in the text of the pleading the specific facts related to deployment.

     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 allow a parent to introduce evidence in a family court child custody dispute,

form an expert, alleging the existence of parental alienation syndrome by the other parent.

     This act would take effect upon passage.

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