2013 -- H 6231

=======

LC02755

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

     

     

     Introduced By: Representative Joy Hearn

     Date Introduced: June 12, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

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

1-2

Separation" is hereby amended to read as follows:

1-3

     15-5-16. Alimony and counsel fees -- Custody of children. -- (a) In granting any

1-4

petition for divorce, divorce from bed and board, or relief without the commencement of divorce

1-5

proceedings, the family court may order either of the parties to pay alimony or counsel fees, or

1-6

both, to the other.

1-7

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

1-8

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

1-9

      (i) The length of the marriage;

1-10

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

1-11

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

1-12

and employability of the parties; and

1-13

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

1-14

      (2) In addition, the court shall consider:

1-15

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

1-16

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

1-17

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

1-18

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

1-19

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

1-20

with consideration given to:

2-1

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

2-2

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

2-3

party have become outmoded and his or her earning capacity diminished;

2-4

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

2-5

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

2-6

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

2-7

and becoming self-supporting;

2-8

      (D) The standard of living during the marriage;

2-9

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

2-10

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

2-11

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

2-12

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

2-13

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

2-14

support or maintenance of either the husband or the wife.

2-15

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

2-16

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

2-17

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

2-18

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

2-19

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

2-20

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

2-21

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

2-22

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

2-23

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

2-24

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

2-25

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

2-26

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

2-27

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

2-28

automatically terminate at once.

2-29

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

2-30

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

2-31

the showing of cause why the right should not be granted or as provided in subdivision 15-5-

2-32

16(d)(4). The court shall mandate compliance with its order by both the custodial parent and the

2-33

children. In the event of noncompliance, the noncustodial parent may file a motion for contempt

2-34

in family court. Upon a finding by the court that its order for visitation has not been complied

3-1

with, the court shall exercise its discretion in providing a remedy, and define the noncustodial

3-2

parent's visitation in detail. However, if a second finding of noncompliance by the court is made,

3-3

the court shall consider this to be grounds for a change of custody to the noncustodial parent.

3-4

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

3-5

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

3-6

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

3-7

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

3-8

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

3-9

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

3-10

and whether the denial of visitation continues to be in the child's best interests.

3-11

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

3-12

convicted under or pled nolo contendere to a violation of sections 11-37-2, 11-37-4, 11-37-6, or

3-13

11-37-8.1 or other comparable law of another jurisdiction, and the child was conceived as a result

3-14

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

3-15

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

3-16

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

3-17

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

3-18

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

3-19

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

3-20

sufficient cause to deny visitation.

3-21

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

3-22

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

3-23

pendente lite.

3-24

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

3-25

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

3-26

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

3-27

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

3-28

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

3-29

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

3-30

safety and well-being of the child and of the parent who is the victim of domestic or family

3-31

violence. The court shall also consider the perpetrator's history of causing physical harm, bodily

3-32

injury or assault to another person.

3-33

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

4-34

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

4-35

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

4-36

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

4-37

appropriate;

4-38

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

4-39

the child;

4-40

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

4-41

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

4-42

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

4-43

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

4-44

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

4-45

consumption of alcohol or controlled substances during the visitation; and

4-46

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

4-47

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

4-48

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

4-49

between spouses or people who have a child in common:

4-50

      (i) Attempting to cause or causing physical harm;

4-51

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

4-52

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

4-53

or duress.

4-54

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

4-55

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

4-56

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

4-57

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

4-58

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

4-59

custody and visitation.

4-60

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

4-61

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

4-62

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

4-63

or deployment out of state.

4-64

     SECTION 2. This act shall take effect upon passage.

     

=======

LC02755

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO DOMESTIC RELATIONS -- DIVORCE AND SEPARATION

***

5-1

     This act would prevent a perpetrator of a rape, who thereby fathers a child, from custody

5-2

or visitation except in very limited circumstances.

5-3

     This act would take effect upon passage.

     

=======

LC02755

=======

H6231