§ 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 §§â€‚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 §â€‚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.