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IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2000

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15-5-14.1. Automatic orders in divorce cases. -- (a) Upon the filing of a complaint for divorce, divorce from bed and board, legal separation, annulment, custody or visitation parenting time by the plaintiff and upon service of the petition and summons of the defendant or upon waiver and acceptance of service by the parties, the automatic orders shall be effective with regard to the plaintiff upon the signing of the complaint and with regard to the defendant upon service. A copy of the automatic order shall be served with the summons and complaint.

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or without an order of the court, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys' fees in connection with this action. Nothing in this section shall be construed to create liability against or effect the validity of the title to real estate of any purchaser of real estate for value when the purchaser acts in good faith and without actual knowledge of the court's order.

(2) Neither party shall incur any unreasonable debts, including but not limited to, further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit or bank cards. Nothing in this section shall be construed to create liability against the creditor under the terms of the original agreement when the creditor acts in good faith and without actual knowledge of the court's order.

(3) Neither party shall permanently remove the minor child or children from the state of Rhode Island, without the written consent of the other party or an order of the court.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any medical, hospital and/or dental insurance coverage, and each party shall maintain the existing medical, hospital, and dental insurance coverage in full force and effect; and

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowner's or renter's insurance policies in full force and effect.

(6) If the parties are living together on the date of service of these orders, neither party may deny the other party use of the current primary residence of the parties, whether it be owned or rented property, without court order. This provision shall not apply if there is a prior, contradictory court order.

(7) If the parties share a child or children, a party vacating the family residence shall notify the other party or the other party's attorney, in writing, within forty-eight hours of such move, of an address where the relocated party can receive communication. This provision shall not apply if there is a prior, contradictory court order.

(8) If the parents of the children live apart during the dissolution proceeding, they shall assist their children in having contact with both parties, which is consistent with the habits of the family, personally, by telephone, and in writing unless there is a prior court order.

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: the length of the marriage; the conduct of the parties during the marriage; the health, age, station, occupation, amount and source of income, vocational skills, and employability of the parties; and 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 shall expressly find to be just and proper.

(c) (1) For the purposes of this section, alimony shall be 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. Provided, however, that 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 thereof, and may make any decree relative thereto 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 however, 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 herein provided shall affect the power of the court as heretoafter provided by law to alter, amend, or annul any order of alimony heretofore 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 parenting time has not been complied with, the court shall exercise its discretion in providing a remedy, and define the noncustodial parent's visitation parenting time 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.

(e) In all hearings regarding denial of visitation shared parenting, 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 parenting time, 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 parenting time shall be arranged so as to best protect the child and the abused parent from further harm.

In a visitation parenting time or custody order, the court may 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 said order. The court may also order the perpetrator to attend a substance abuse program whenever deemed appropriate, may require that a bond be filed with the court in order to ensure the return and safety of the child, and may order that the address and telephone number of the child be kept confidential.

(2) 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.

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 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 birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth (19th) birthday. In addition, the court may order child support to continue, in the case of a child with a severe physical or mental impairment, until the twenty-first (21st) birthday of the child.

(c) 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 parenting time. The court shall enter an order for costs, fees, and disbursements in favor of the child's attorney. The order shall be made against either or both parents. 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 thereof, and may make any decree relative thereto 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 however, 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.

(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 as will be sufficient to satisfy the child or spousal support arrearage owed. The court or its magistrate, after 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. Any existing child support orders may be modified in accordance with the provisions of this subsection unless the court makes specific written findings of fact that take into consideration the best interests of the child and conclude that such an order would be unjust or inappropriate in a particular case.

(e) In a proceeding to establish support, the court in its discretion may, after opportunity for 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 so 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 is unemployed, underemployed or otherwise 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 such 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 and/or the division of taxation within the department of administration. The performance of community service shall not be a basis for retroactive suspension of arrears due and owing.

(g) 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 such minor-parent reaches the age of eighteen (18), less any payment made to the department by such minor parent.

It is hereby declared that the obligation of reimbursement for such 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) and provided, however, 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) All support orders established or modified in the state on or after October 1, 1998, shall be recorded with the Rhode Island family court degrees department of administration, division of taxation child support computer enforcement system which maintains the official registry of support orders entered thereon in accordance with applicable administrative orders issued by the Rhode Island family court. The support order shall be recorded whether or not services are being provided under the IV-D state plan.

Each party 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.

Thereafter, 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.

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 Rhode Island rules of procedure for domestic relations for the Family Court of Rhode Island, of written notice to the most recent residential or employer address of record.

[See section 12-1-15 of the General Laws.]

15-5-19. Restraining orders -- Treatment for harmed or menaced spouse -- Custody of children -- Allowances -- Alimony and counsel fees. -- (a) Whenever either party to a marriage is insane, or whenever a cause is in existence which is, or if continued, will be a cause for divorce, the family court, upon the original petition of one of the parties, or upon the filing of a complaint for divorce, may restrain either party from interfering with the personal liberty of the other, and may restrain either party from maliciously causing or attempting to cause bodily harm to the other, with or without a dangerous weapon, and may restrain either party from placing, by physical menace or threat of physical menace, the other in fear of imminent bodily injury; and upon a finding by the court that any party has been so harmed, menaced, or threatened the court may prescribe treatment including, but not limited to, out-patient counseling, and may regulate the custody and provide for the education, maintenance, and support of the children, if any, and may, in its discretion, order one of the parties to pay alimony and/or counsel fees to the other pursuant to section 15-5-16, which allowance shall not be regarded as a judgment for debt until the court, which made the order for maintenance and support of the children, alimony for one or the other of the parties, and counsel fees, has adjudicated in appropriate proceedings what, if anything, is due under the order. Suits may be brought or executions may issue thereon for amounts due and unpaid, the executions to run against the goods and chattels of the husband or wife, as the case may be, and for want thereof against the body; the court may make all necessary orders and decrees concerning the suits or executions and at any time may alter, amend, or annul for sufficient cause, after notice to the parties interested therein.

(b) (1) Any violation of the protective orders mentioned in subsection (a) 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.

(c) Any violation of a restraining order under this chapter protecting a person against bodily harm and/or against threat of imminent bodily injury shall be a misdemeanor which 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. The penalties for violation of this section shall also include the penalties provided in section 12-29-5. The district court shall have criminal jurisdiction over violations of restraining orders protecting the person of the complainant against bodily harm and/or against the threat of imminent bodily injury.

(d) In regulating the custody of the children, the court shall provide for the reasonable right of visitation equal, parenting time 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 orders 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 parenting time has not been complied with, the court shall exercise its discretion in providing a remedy, and define the noncustodial parent's visitation parenting time 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.

(e) In all hearings regarding denial of visitation shared parenting, 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.

15-5-24.5. Court ordered visitation rights to certain persons convicted of first degree murder - Prohibited. Court ordered parenting time rights to certain persons convicted of first degree murder - Prohibited. -- No court shall make an order providing visitation parenting time rights to a parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless such court shall first conduct a hearing in order to determine whether the child is of an appropriate age, maturity, intelligence and voluntarily consents to said visitation parenting time. No person shall cause, facilitate, or assist a child to visit a parent who has been convicted of murder in the first degree of the other parent of the child without the consent of the child's custodian or legal guardian except as authorized by a court order.

15-5-29. Mediation proceedings involving custody and/or visitation. Mediation proceedings involving custody and/or parenting time. -- (a) Where in any petition for divorce, divorce from bed and board, or relief without the commencement of divorce proceedings, the family court may as to issues of custody and visitation parenting time direct the parties to participate in mediation in an effort to resolve their differences, the court may order the participation in mediation in a program established by the court.

(b) At its discretion, the court may:

(1) Order mediation under this section prior to trial and postpone trial of the case pending the outcome of the mediation, in which case the issues of custody and visitation parenting time shall be tried only upon failure to resolve the issues of custody by mediation;

(2) Order mediation under this section prior to trial and proceed to try the case as to issues other than custody and visitation parenting time while the parties are at the same time engaged in the mediation, in which the issue of custody shall be tried separately upon failure to resolve the issues; and

(3) Complete the trial of the case on all issues and order mediation under this section upon the conclusion of the trial, postponing entry of the decree pending outcome of the mediation, in which case the court may enter a temporary decree as to issues other than custody any visitation parenting time upon completion of the trial or may postpone entry of any decree until the expiration of the mediation period of agreement of the parties.

(c) Communications made by or to a mediator or between parties in the presence of the mediator as a part of mediation ordered under this section are privileged and are not admissible as evidence in any civil or criminal proceeding.

SECTION 2. Section 15-8-18 of the General Laws in Chapter 15-8 entitled "Uniform Law on Paternity" is hereby amended to read as follows:

15-8-18. Judgments. -- (a) The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.

(b) If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued in accordance with section 15-8-23.

(c) The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation parenting time privileges with the child, or any other matter in the best interest of the child. The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement.

(d) Support judgments or orders may be for periodic payments which may vary in amount. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court shall consider all relevant facts, including:

(1) The needs of the child;

(2) The standard of living and circumstances of the parents;

(3) The relative financial means of the parents;

(4) The earning ability of the parents;

(5) The need and capacity of the child for education, including higher education;

(6) The age of the child;

(7) The financial resources and the earning ability of the child;

(8) The responsibility of the parents for the support of others; and

(9) The value of services contributed by the custodial parent.

SECTION 3. Sections 15-14-3, 15-14-10 and 15-14-11 of the General Laws in Chapter 15-14 entitled "Child Custody" are hereby amended to read as follows:

15-14-3. Definitions. -- As used in this chapter:

(1) "Court" shall mean the family court of the state of Rhode Island and Providence Plantations unless another meaning is so indicated;

(2) "Custody determination" means a court decision and court orders and instructions providing for the custody of a child, including visitation rights parenting time; it does not include a decision relating to child support or any other monetary obligation of any person;

(3) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;

(4) "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and modification decree;

(5) "Home state" means the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six (6) month or other period;

(6) "Initial decree" means the first custody decree concerning a particular child;

(7) "Modification decree" means a custody decree which modified or replaced a prior decree, whether made by the court which rendered the prior decree or by another court;

(8) "Person acting as parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;

(9) "Petitioner" means a person, including a parent, who claims a right to custody or visitation parenting time rights with respect to a child;

(10) "Physical custody" means actual possession and control of a child;

(11) "Respondent" means a person including a parent, or state agency, who disputes the actions of a petitioner claiming a right to custody or visitation rights parenting time with respect to a child; and

(12) "State" means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

15-14-10. Information under oath to be submitted to the court. -- (a) Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child's present address, the places where the child has lived within the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:

(1) He or she has participated as a party or witness, or in any other capacity, in any other litigation concerning the custody of the child in this or any other state;

(2) He or she has information of any custody proceeding concerning the child pending in a court of this or any other state; and

(3) He or she knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights parenting time with respect to the child.

(b) If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court's jurisdiction and the disposition of the case.

(c) Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he or she obtained information during this proceeding.

15-14-11. Additional parties. -- If the court learns from information furnished by the parties pursuant to section 15-14-10 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights parenting time with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his or her joinder as a party. If the person joined as a party is outside Rhode Island he or she shall be served with process or otherwise notified in accordance with section 15-14-6.

SECTION 4. This act shall take effect upon passage.

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LC02671
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EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF

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This act would change the term "visitation" to the term "parenting time" under existing Rhode Island domestic relations law.

This act would take effect upon passage.