Chapter 233
2011 -- H 5216 AS AMENDED
Enacted 07/09/11
A N A C T
RELATING TO
DOMESTIC RELATIONS -- DIVORCE AND SEPARATION
Introduced By: Representatives Menard, Naughton, MacBeth, and Flaherty
Date Introduced: February 03, 2011
It is enacted by the
General Assembly as follows:
SECTION 1. Section 15-5-16.2 of the General Laws in Chapter
15-5 entitled "Divorce
and Separation" is hereby amended to read as
follows:
15-5-16.2.
Child support. -- (a) In
a proceeding for divorce, divorce from bed and board,
a miscellaneous petition without the filing of divorce
proceedings, or child support, the court shall
order either or both parents owing a duty of support to a
child to pay an amount based upon a
formula and guidelines adopted by an administrative order of
the family court. If, after calculating
support based upon court established formula and guidelines,
the court, in its discretion, finds the
order would be inequitable to the child or either parent,
the court shall make findings of fact and
shall order either or both parents owing a duty of support
to pay an amount reasonable or
necessary for the child's support after considering all
relevant factors including, but not limited to:
(1) The financial
resources of the child;
(2) The financial
resources of the custodial parent;
(3) The standard of
living the child would have enjoyed had the marriage not been
dissolved;
(4) The physical and
emotional condition of the child and his or her educational needs;
and
(5) The financial
resources and needs of the non-custodial parent.
(b) The court may, if
in its discretion it deems it necessary or advisable, order child
support and education costs for children attending high
school at the time of their eighteenth
(18th) birthday and for ninety (90) days after
graduation, but in no case beyond their nineteenth
(19th) birthday.
Notwithstanding the
foregoing, the court, in its discretion, may order child support to
continue, in the case of a child with a severe physical or
mental impairment still living with or
under the care of a parent, beyond the child's emancipation
as defined above. The court shall
consider the following factors when making its determination:
(1) the nature and extent of the
disability; (2) the cost of the extraordinary medical expenses;
(3) the ability of the child to earn
income; (4) the financial resources of the child; (5) the
financial resources of the parents; (6) the
inability of the primary caregiver of the child to sustain
gainful employment on a full-time basis
due to the care necessitated by the child. The onset of
the disability must have occurred prior to
the emancipation event. If a child support order for a
child with a severe physical or mental
impairment has been terminated, suspended or expired, the court
shall consider the factors in this
paragraph and has the discretion to order child support for
this child prospectively based upon
established child support guidelines. The court may periodically review the case to
determine if
circumstances warrant the continuation of child support.
(c) (1) The court may, if in its discretion it deems it necessary or
advisable, appoint an
attorney or a guardian ad litem to
represent the interest of a minor or dependent child with respect
to his or her support, custody, and visitation.
(i)
In determining whether an appointment should be made, the court shall consider
the
extent to which a guardian ad litem
may assist in providing information concerning the best
interest of the child; the age of the child; the wishes of the
parents as well as their financial
resources; the nature of the proceeding including the level of
contentiousness, allegations of child
abuse or domestic violence and the risk of harm to the
child if a guardian is not appointed; or
conflicts of interest between the child and parents or
siblings;
(ii) The guardian ad litem shall be appointed from a list of persons properly
credentialed
pursuant to administrative orders of the chief judge of the
family court;
(iii) The court shall
enter an order of appointment stating the specific assignment the
optional and mandatory duties of the guardian ad litem, the guardian's access to the child and
confidential information regarding the child, and a provision for
payment of the costs and fees of
the guardian ad litem;
(iv) Communications
made to a guardian, including those made by a child, are not
privileged and may or may not be disclosed to the parties, the
court or to professionals providing
services to the child or the family;
(v) The guardian ad litem shall meet with the child, conduct an investigation
and upon
request of the court shall prepare an oral or written report
that contains the procedural background
of the case, identification of all persons interviewed
and other sources of information, a statement
of the child's emotional, medical, educational and
social service needs, the child's wishes and
other factors relevant to the court's determination
regarding the best interests of the child;
(vi)
Any written report of the guardian ad litem
shall be marked as a full exhibit in the
proceedings, subject to cross-examination;
(vii) If the guardian
ad litem requests confidential health care
information and consent is
withheld, he or she shall apply to the court for leave to
obtain such information after compliance
with section 5-37.3-6.1;
(viii) The guardian ad litem shall be given notice of and should appear at all
proceedings
in family court that affect the interests of the child;
(ix) A person serving
as a guardian ad litem under this section acts as the
court's agent
and is entitled to quasi-judicial immunity for acts
performed within the scope of the duties of the
guardian ad litem;
(x) The chief judge of
the family court shall issue, through administrative orders, rules
governing the appointment and performance of guardians ad litem in domestic proceedings.
(2) After a decree for
support 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 of support and the
payment of it, 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 only to the date that notice of a
petition to modify was given to the adverse party if the court
finds that a substantial change in
circumstances has occurred; provided, that 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.
The child support order shall continue
in full force and effect, by wage withholding, after the
youngest child is emancipated, and shall
be applied towards any arrearage due and owing, as
indicated on the child support computer
system. Upon satisfaction of the arrears due and owing the
child support order shall be
automatically suspended and wage withholding terminated without the
necessity of returning to
family court.
(d) (1) In a proceeding to enforce a child support order, or a
spousal support order for a
custodial parent having custody of a minor child, the court or
its magistrate may assign to the
obligee such tangible personal property of the obligor that
will be sufficient to satisfy the child or
spousal support arrearage owed. The court or its magistrate,
after a hearing, shall establish the
amount of the child or spousal support arrearage, and the
nature and value of the tangible
personal property. To effect the assignment, the court or its
magistrate may order the obligor to
execute and deliver the documents of title which may be
necessary to complete the transfer of
title to the property, and may order the obligor to deliver
possession of the property to the
obligee. Whenever the obligor fails to comply with the order
assigning the property, the order of
assignment shall be regarded as a judgment vesting title to the
property in the obligor as fully and
completely as if the obligor had executed and delivered the
documents of title.
(2) Any order for child
support issued by the family court shall contain a provision
requiring either or both parents owing a duty of support to a
child to obtain health insurance
coverage for the child when coverage is available to the
parent or parents through their
employment without cost or at a reasonable cost.
"Reasonable cost" shall be defined in
accordance with guidelines adopted by administrative order of
the family court in conjunction
with the child support guidelines.
(3) Any existing child
support orders may be modified in accordance with this
subsection unless the court makes specific written findings of
fact that take into consideration the
best interests of the child and conclude that a child
support order or medical order would be
unjust or inappropriate in a particular case.
(4) In addition, the
national medical support notice shall be issued with respect to all
orders issued, enforced, or modified on or after October 1,
2002, in accordance with chapter 29 of
title 15. The notice shall inform the employer of
provisions in the child support order, for health
care coverage for the child, and contain instructions on
how to implement this coverage. In lieu of
the court ordering the non-custodial parent to obtain or
maintain health care coverage for the
child, the court may order the non-custodial parent to
contribute a weekly cash amount towards
the medical premium for health care coverage paid by the
state of
custodial parent. The method to determine a reasonable weekly
amount shall be addressed in the
family court administrative order pertaining to the child
support guidelines.
(e) In a proceeding to
establish support, the court in its discretion may, after opportunity
for a hearing, issue a temporary order for child support
payable into the registry of the court and
to be held pending entry of judgment. In the event of a
final adjudication requiring no payment or
payments in an amount less than those payments which have been
made pursuant to a temporary
order under this section, the defendant shall be entitled
to a refund of all or a portion of the
amounts paid.
(f) In any proceeding
to establish support, or in any case in which an obligor owes past
due support, for a child or children receiving public
assistance pursuant to chapter 5.1 of title 40,
the court or its magistrate, upon a finding that an able
bodied absent parent obligor is
unemployed, underemployed or lacks sufficient income or
resources from which to make
payment of support equal to the public assistance payment for
the child or children, or is unable
to pay the arrearages in accordance with a payment plan,
may order that parent to perform unpaid
community service for at least twenty (20) hours per week
through community service
placements arranged and supervised by the department of human
services or to participate in any
work activities that the court deems appropriate. The
performance of community service shall not
be a basis for retroactive suspension of arrears due and
owing.
(g) (1) In any proceeding to establish support for a minor child
whose adjudicated parent
is a minor (minor-parent), the court or its magistrate
may order a grandparent of the minor child
to reimburse the department of human services in an
amount not to exceed the total amount of
cash assistance benefits paid to or for the minor child
pursuant to chapter 5.1 of title 40 until the
minor-parent reaches the age of eighteen (18), less any payment
made to the department by the
minor parent.
(2) The obligation of
reimbursement for the minor child shall be the joint and several
responsibility of the minor parent and the grandparent(s) until the
minor parent reaches the age of
eighteen (18); provided, that each joint obligor shall have a
right of contribution against each joint
obligor, which right shall be enforceable by an action in the
family court.
(h) (1) All support orders established or modified in the state on
or after October 1, 1998,
shall be recorded with the
computer enforcement system, which maintains the official
registry of support orders entered in
accordance with applicable administrative orders issued by the
support order shall be recorded whether or not services are
being provided under the IV-D state
plan.
(2) The obligee to a paternity or child support proceeding shall be
required to file with
the family court, upon the entry of the order, the
appropriate form as provided by family court
which includes the full name of the parties, residential
and mailing address, telephone number,
drivers license number, social security number and the name,
address and telephone number of
the employer. The form shall also include the full order
amount and date and amount of
arrearages if any, the name of the child(ren),
their date of birth, address and social security
number and any other information as required by
administrative order.
(3) After this, each
party is required to file an amended form whenever any of the
information contained on the original form has been changed in
any way, within ten (10) days of
the change. The information shall be entered in the child
support enforcement computer system
within five (5) business days of receipt of the amended
form.
(i)
In any subsequent child support enforcement action between the parties, upon
sufficient showing that diligent effort has been made to
ascertain the location of such a party, the
court may deem state due process requirements for notice
and service of process to be met with
respect to the party, upon service by first class mail or,
where appropriate, by service as specified
in the
Island, of written notice to the
most recent residential or employer address of record.
SECTION 2. This act shall take effect upon passage.
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LC00648
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