2019 -- H 5076

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LC000205

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO DOMESTIC RELATIONS - DOMESTIC ABUSE PREVENTION

     Introduced By: Representatives Lombardi, Cassar, Hull, Nardone, and Roberts

     Date Introduced: January 10, 2019

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 15-15-1 and 15-15-3 of the General Laws in Chapter 15-15

entitled "Domestic Abuse Prevention" are hereby amended to read as follows:

     15-15-1. Definitions.

     The following words as used in this chapter have the following meanings:

     (1) "Course of conduct" means a pattern of conduct composed of a series of acts over a

period of time, evidencing a continuity of purpose. Constitutionally protected activity is not

included within the meaning of "course of conduct".

     (2) "Courts" means the family court.

     (3) "Cyberstalking" means transmitting any communication by computer to any person or

causing any person to be contacted for the sole purpose of harassing that person or his or her

family.

     (4) "Domestic abuse" means:

     the occurrence of one or more of the following acts between present or former family

members, parents, stepparents, or persons who are or have been in a substantive dating or

engagement relationship within the past one year in which at least one of the persons is a minor:

     (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; or

     (iv) Stalking or cyberstalking.

     (5) "Harassing" means following a knowing and willful course of conduct directed at a

specific person with the intent to seriously alarm, annoy, or bother the person, and which serves

no legitimate purpose. The course of conduct must be such as would cause a reasonable person to

suffer substantial emotional distress, or be in fear of bodily injury.

     (6) "Household pet" means a domesticated or tamed animal kept for companionship or

pleasure.

     (6)(7) "Parents" mean persons who together are the legal parents of one or more children,

regardless of their marital status or whether they have lived together at any time.

     (7)(8) "Present or former family member" means the spouse, former spouse, minor

children, stepchildren, or persons who are related by blood or marriage.

     (8)(9) "Sexual exploitation" means the occurrence of any of the following acts by any

person who knowingly or willfully encourages, aids, or coerces any child under the age of

eighteen (18) years:

     (i) Recruiting, employing, enticing, soliciting, isolating, harboring, transporting,

providing, persuading, obtaining, or maintaining, or so attempts, any minor for the purposes of

commercial sex acts or sexually explicit performances; or selling or purchasing a minor for the

purposes of commercial sex acts.

     (A) "Commercial sex act" means any sex act or sexually explicit performance on account

of which anything of value is given, promised to, or received, directly or indirectly, by any

person.

     (B) "Sexually-explicit performance" means an act or show, intended to arouse, satisfy the

sexual desires of, or appeal to the prurient interests of patrons or viewers, whether public or

private, live, photographed, recorded, or videotaped.

     (9)(10) "Stalking" means harassing another person or willfully, maliciously and

repeatedly following another person with the intent to place that person in reasonable fear of

bodily injury.

     (10)(11) "Substantive dating" or "engagement relationship" means a significant and

personal/intimate relationship which shall be adjudged by the court's consideration by the

following factors:

     (i) The length of time of the relationship;

     (ii) The type of relationship; and

     (iii) The frequency of interaction between the parties.

     15-15-3. Protective orders -- Penalty -- Jurisdiction.

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     (a) A person, or a parent, custodian, or legal guardian on behalf of a minor child or the

director of the department of children, youth and families ("DCYF") or its designee for a child in

the custody of DCYF, pursuant to §§ 40-11-7 and 40-11-7.1, suffering from domestic abuse or

sexual exploitation as defined in § 15-15-1, may file a complaint in the family court requesting

any order that will protect and support her or him from abuse or sexual exploitation, including,

but not limited to, the following:

     (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

molesting, sexually exploiting, or interfering with the plaintiff at home, on the street, or

elsewhere, whether the defendant is an adult or a minor;

     (2) Ordering the defendant to vacate the household immediately;

     (3) Awarding the plaintiff custody of the minor children of the parties, if any;

     (4) Awarding the plaintiff custody of the household pet(s), if any, including the

enforcement remedy of a restraining order or other injunctive relief if necessary;

     (4)(5) Ordering the defendant to surrender physical possession of all firearms in his or her

possession, care, custody, or control and shall further order a person restrained not to purchase or

receive, or attempt to purchase or receive, any firearms while the protective order is in effect. The

defendant shall surrender said firearms within twenty-four (24) hours of notice of the protective

order to the Rhode Island state police or local police department or to a federally licensed

firearms dealer.

     (i) A person ordered to surrender possession of any firearm(s) pursuant to this section

shall, within seventy-two (72) hours after being served with the order, either:

     (A) File with the court a receipt showing the firearm(s) was physically surrendered to the

Rhode Island state police or local police department, or to a federally licensed firearms dealer; or

     (B) Attest to the court that, at the time of the order, the person had no firearms in his or

her immediate physical possession or control, or subject to their immediate physical possession or

control, and that the person, at the time of the attestation, has no firearms in their immediate

physical possession or control, or subject to their immediate physical possession or control.

     (ii) If a person restrained under this section transfers a firearm(s) to a federally licensed

firearms dealer pursuant to this section, the person restrained under this section may instruct the

federally licensed firearms dealer to sell the firearm(s) or to transfer ownership, in accordance

with state and federal law, to a qualified named individual who is not a member of the person's

dwelling house, who is not related to the person by blood, marriage, or relationship as defined by

§ 15-15-1(7), and who is not prohibited from possessing firearms under state or federal law. The

owner of any firearm(s) sold shall receive any financial value received from its sale, less the cost

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associated with taking possession of, storing, and transferring of the firearm(s).

     (iii) Every individual to whom ownership of a firearm(s) is transferred pursuant to this

subsection shall be prohibited from transferring or returning any firearm(s) to the person

restrained under this section while the protective order remains in effect and shall be informed of

this prohibition, Any knowing violation of this subsection is a felony that shall be punishable by a

fine of not more than one thousand dollars ($1,000), or by imprisonment for a term of not less

than one year and not more than five (5) years, or both.

     (iv) An individual to whom ownership of a firearm(s) is transferred pursuant to this

subsection shall return a firearm(s) to the person formerly restrained under this section only if the

person formerly restrained under this section provides documentation issued by a court indicating

that the restraining order issued pursuant to this section that prohibited the person from

purchasing, carrying, transporting, or possessing firearms has expired and has not been extended;

     (5)(6) After notice to the respondent and a hearing, ordering either party to make

payments for the support of a minor child or children of the parties as required by law for a period

not to exceed ninety (90) days, unless the child support order is for a child or children receiving

public assistance pursuant to chapter 5.1 of title 40. In these cases, legal counsel for the division

of taxation, child support enforcement, shall be notified as a party in interest to appear for the

purpose of establishing a child support order under a new or existing docket number previously

assigned to the parties and not under the protective docket number. The child support order shall

remain in effect until the court modifies or suspends the order.

     (b) After notice to the respondent and a hearing, which shall be held within fifteen (15)

days of surrendering said firearms, the court, in addition to any other restrictions, may, for any

protective order issued after or renewed on or after July 1, 2017, continue the order of surrender,

and shall further order a person restrained under this section not to purchase or receive, or attempt

to purchase or receive, any firearms while the protective order is in effect.

     (c) The Family Court shall provide a notice on all forms requesting a protective order that

a person restrained under this section shall be ordered pursuant to § 11-47-5 to surrender

possession of any firearms while the protective order is in effect. The form shall further provide

that any person who has surrendered his or her firearms shall be afforded a hearing within fifteen

(15) days of surrendering his or her firearms.

     (d) Any firearm surrendered in accordance with this section to the Rhode Island state

police or local police department shall be returned to the person formerly restrained under this

section upon his or her request when:

     (1) The person formerly restrained under this section produces documentation issued by a

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court indicating that the restraining order issued pursuant to this section that prohibited the person

from purchasing, carrying, transporting, or possessing firearms has expired and has not been

extended; and

     (2) The law enforcement agency in possession of the firearms determined that the person

formerly restrained under this section is not otherwise prohibited from possessing a firearm under

state or federal law.

     (3) The person required to surrender their firearms pursuant to this section shall not be

responsible for any costs of storage of any firearms surrendered pursuant to this section.

     (e) The Rhode Island state police are authorized to develop rules and procedures

pertaining to the storage and return of firearms surrendered to the Rhode Island state police or

local police departments pursuant to this section. The Rhode Island state police may consult with

the Rhode Island Police Chiefs' Association in developing rules and procedures.

     (f) Nothing in this section shall be construed to limit, expand, or in any way modify

orders issued under § 12-29-7 or § 15-5-19.

     (g) Nothing in this section shall limit a defendant's right under existing law to petition the

court at a later date for modification of the order.

     (h) The court shall immediately notify the person suffering from domestic abuse whose

complaint gave rise to the protective order, and the law enforcement agency where the person

restrained under this section resides, of the hearing.

     (i) The person suffering from domestic abuse, local law enforcement, and the person

restrained under this section shall all have an opportunity to be present and to testify when the

court considers the petition.

     (j) At the hearing, the person restrained under this section shall have the burden of

showing, by clear and convincing evidence, that, if his or her firearm rights were restored, he or

she would not pose a danger to the person suffering from domestic abuse or to any other person.

     (1) In determining whether to restore a person's firearm rights, the court shall examine all

relevant evidence, including, but not limited to: the complaint seeking a protective order; the

criminal record of the person restrained under this section; the mental health history of the person

restrained under this section; any evidence that the person restrained under this section has, since

being served with the order, engaged in violent or threatening behavior against the person

suffering from domestic abuse or any other person.

     (2) If the court determines, after a review of all relevant evidence and after all parties

have had an opportunity to be heard, that the person restrained under this section would not pose

a danger to the person suffering from domestic abuse or to any other person if his or her firearm

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rights were restored, then the court may grant the petition and modify the protective order and lift

the firearm prohibition.

     (3) If the court lifts a person's firearms prohibition pursuant to this subsection, the court

shall issue the person written notice that he or she is no longer prohibited under this section from

purchasing or possessing firearms while the protective order is in effect.

     (k) The prohibition against possessing a firearm(s) due solely to the existence of a

domestic violence restraining order issued under this section shall not apply with respect to sworn

peace officers as defined in § 12-7-21 and active members of military service, including members

of the reserve components thereof, who are required by law or departmental policy to carry

departmental firearms while on duty or any person who is required by his or her employment to

carry a firearm in the performance of his or her duties. Any individual exempted pursuant to this

exception may possess a firearm only during the course of his or her employment. Any firearm

required for employment must be stored at the place of employment when not being possessed for

employment use; all other firearm(s) must be surrendered in accordance with this section.

     (l) Upon motion by the plaintiff, his or her address shall be released only at the discretion

of the family court judge.

     (m)(1) Any violation of the protective orders in subsection (a) of this section shall subject

the defendant to being found in contempt of court.

     (2) The contempt order shall not be exclusive and shall not preclude any other available

civil or criminal remedies. Any relief granted by the court shall be for a fixed period of time not

to exceed three (3) years, at the expiration of which time the court may extend any order, upon

motion of the plaintiff, for any additional time, that it deems necessary to protect the plaintiff

from abuse. The court may modify its order at any time upon motion of either party.

     (n)(1) Any violation of a protective order under this chapter of which the defendant has

actual notice shall be a misdemeanor that shall be punished by a fine of no more than one

thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

     (2) The penalties for violation of this section shall also include the penalties as provided

by § 12-29-5.

     (o) Actual notice means that the defendant has received a copy of the order by service or

by being handed a copy of the order by a police officer pursuant to § 15-15-5(d).

     (p)(1) The district court shall have criminal jurisdiction over all adult violations of this

chapter.

     (2) The family court shall have jurisdiction over all juvenile violations of this chapter.

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     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 - DOMESTIC ABUSE PREVENTION

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     This act would permit the family court to award custody of household pets to the plaintiff

in a domestic abuse complaint.

     This act would take effect upon passage.

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