TITLE 15

Domestic Relations

CHAPTER 15-5

Divorce and Separation

SECTION 15-5-16



   § 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 or as provided in subdivision 15-5-16(d)(4). 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) No person shall be granted custody of or visitation with

a child if that person has been convicted under or pled nolo contendere to a

violation of §§ 11-37-2, 11-37-4, or 11-37-8.1 or other comparable

law of another jurisdiction, and the child was conceived as a result of that

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

or legal guardian consents to visitation with the child, and the court

determines that visitation is in the best interest of the child, then the court

may order supervised visitation and counseling.



   (5) 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

§ 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 appropriate;



   (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.



   (h) If there is no existing order establishing the terms of

parental rights and responsibilities or parent-child contact and it appears

that deployment or mobilization is imminent, upon motion by either parent, the

court shall expedite a hearing to establish temporary parental rights and

responsibilities and parent-child contact to ensure the deploying parent has

access to the child, to ensure disclosure of information, to grant other rights

and duties set forth herein, and to provide other appropriate relief. Any

initial pleading filed to establish parental rights and responsibilities for or

parent-child contact with a child of a deploying parent shall be so identified

at the time of filing by stating in the text of the pleading the specific facts

related to deployment.



History of Section.

(P.L. 1979, ch. 279, § 2; P.L. 1979, ch. 338, § 1; P.L. 1980, ch.

406, § 5; P.L. 1981, ch. 320, § 1; P.L. 1984, ch. 79, § 1;

P.L.1991, ch. 225, § 1; P.L. 1992, ch. 246, § 1; P.L. 1993, ch. 78,

§ 1; P.L. 1999, ch. 302, § 1; P.L. 2000, ch. 28, § 1; P.L. 2000,

ch. 315, § 1; P.L. 2002, ch. 135, § 1; P.L. 2002, ch. 248, § 1;

P.L. 2011, ch. 209, § 1; P.L. 2011, ch. 314, § 1; P.L. 2012, ch. 218,

§ 1; P.L. 2012, ch. 231, § 1; P.L. 2013, ch. 190, § 1; P.L.

2013, ch. 200, § 1; P.L. 2013, ch. 501, § 9.)