A N
A C T
RELATING TO DIVORCE
AND SEPARATION -- DOMESTIC VIOLENCE
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Introduced By: Representatives Lanzi, Williams, Ajello, Giannini, and E Coderre |
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Date Introduced: January 30, 2002 |
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. 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 entered, the court may from time to time upon the petition of either party review and alter its decree relative to the amount of the alimony 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 to the date that the court finds that a substantial change in circumstances has occurred; provided, that the court sets 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 is not 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 to visitation. 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 to 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 makes
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 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. , if proven,
as a factor not in the best interest of the child. Moreover, where domestic
violence is proven, any award of joint custody or any grant of
visitation shall be arranged so as to best protect the child and the abused
parent from further harm. 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.
(2) 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; as a condition of the
order. (ii) The court may also order the perpetrator to
attend a substance abuse program whenever deemed appropriate, ; (iii)
may require that a bond be filed with the court in order to ensure the
return and safety of the child, ; (iv) and may
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.
(3) 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; and
(iii) Causing another to engage involuntarily in sexual relations by force, threat of force, or duress.
(4) 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.
(5) 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.
SECTION 2. This act shall take effect upon passage.