Chapter 314

2011 -- H 5262

Enacted 07/12/11





     Introduced By: Representatives Gallison, Fellela, Messier, Martin, and Keable

     Date Introduced: February 03, 2011


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. 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 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) 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.

      (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 section 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 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


      (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

or deployment out of state.


     SECTION 2. This act shall take effect upon passage.