§ 15-5-16 - Alimony and counsel fees – Custody of children.
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 reliefwithout the commencement of divorce proceedings, the family court may ordereither of the parties to pay alimony or counsel fees, or both, to the other.
(b) In determining the amount of alimony or counsel fees, ifany, 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 sourceof income, vocational skills, and employability of the parties; and
(iv) The state and the liabilities and needs of each of theparties.
(2) In addition, the court shall consider:
(i) The extent to which either party is unable to supportherself or himself adequately because that party is the primary physicalcustodian of a child whose age, condition, or circumstances make it appropriatethat the parent not seek employment outside the home, or seek only part-time orflexible-hour employment outside the home;
(ii) The extent to which either party is unable to supportherself or himself adequately with consideration given to:
(A) The extent to which a party was absent from employmentwhile fulfilling homemaking responsibilities, and the extent to which anyeducation, skills, or experience of that party have become outmoded and his orher earning capacity diminished;
(B) The time and expense required for the supported spouse toacquire the appropriate education or training to develop marketable skills andfind appropriate employment;
(C) The probability, given a party's age and skills, ofcompleting education or training and becoming self-supporting;
(D) The standard of living during the marriage;
(E) The opportunity of either party for future acquisition ofcapital assets and income;
(F) The ability to pay of the supporting spouse, taking intoaccount 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 bejust and proper.
(c) For the purposes of this section, "alimony" is construedas payments for the support or maintenance of either the husband or the wife.
(2) Alimony is designed to provide support for a spouse for areasonable length of time to enable the recipient to become financiallyindependent and self-sufficient. However, the court may award alimony for anindefinite period of time when it is appropriate in the discretion of the courtbased upon the factors set forth in subdivision (b)(2)(ii)(B). After a decreefor alimony has been entered, the court may from time to time upon the petitionof either party review and alter its decree relative to the amount and paymentof the alimony, and may make any decree relative to it which it might have madein the original suit. The decree may be made retroactive in the court'sdiscretion to the date that the court finds that a substantial change incircumstances has occurred; provided, the court shall set forth in its decisionthe specific findings of fact which show a substantial change in circumstancesand upon which findings of facts the court has decided to make the decreeretroactive. Nothing provided in this section shall affect the power of thecourt as subsequently provided by law to alter, amend, or annul any order ofalimony previously entered. Upon the remarriage of the spouse who is receivingalimony, the obligation to pay alimony shall automatically terminate at once.
(d) In regulating the custody of the children, the courtshall provide for the reasonable right of visitation by the natural parent nothaving custody of the children, except upon the showing of cause why the rightshould not be granted. The court shall mandate compliance with its order byboth the custodial parent and the children. In the event of noncompliance, thenoncustodial parent may file a motion for contempt in family court. Upon afinding 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 thenoncustodial parent's visitation in detail. However, if a second finding ofnoncompliance by the court is made, the court shall consider this to be groundsfor a change of custody to the noncustodial parent.
(2) In regulating the custody and determining the bestinterests of children, the fact that a parent is receiving public assistanceshall not be a factor in awarding custody.
(3) A judicial determination that the child has beenphysically or sexually abused by the natural parent shall constitute sufficientcause to deny the right of visitation. However, when the court enters an orderdenying visitation under this section, it shall review the case at leastannually to determine what, if any, action the parent has taken to rehabilitatehimself or herself and whether the denial of visitation continues to be in thechild's best interests.
(4) The court may order a natural parent who has been deniedthe right of visitation due to physical or sexual abuse of his or her child toengage in counseling. The failure of the parent to engage in counseling,ordered by the court pursuant to this section, shall constitute sufficientcause to deny visitation.
(e) In all hearings regarding denial of visitation, the courtshall make findings of fact.
(f) This chapter does not affect the right of the familycourt to award alimony or support pendente lite.
(g) Notwithstanding the provisions of this section and §15-5-19, the court, when making decisions regarding child custody andvisitation, shall consider evidence of past or present domestic violence. Wheredomestic violence is proven, any grant of visitation shall be arranged so as tobest protect the child and the abused parent from further harm.
(2) In addition to other factors that a court must considerin a proceeding in which the court has made a finding of domestic or familyviolence, the court shall consider as primary the safety and well-being of thechild and of the parent who is the victim of domestic or family violence. Thecourt 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 theorder, the court may:
(i) Order the perpetrator of domestic violence to attend andsuccessfully complete, to the satisfaction of the court, a certified batterer'sintervention program;
(ii) Order the perpetrator to attend a substance abuseprogram whenever deemed appropriate;
(iii) Require that a bond be filed with the court in order toensure the return and safety of the child;
(iv) Order that the address and telephone number of the childbe kept confidential;
(v) Order an exchange of the child to occur in a protectedsetting, or supervised by another person or agency; provided that, if the courtallows a family or household member to supervise visitation, the court shallestablish conditions to be followed during visitation;
(vi) Order the perpetrator of domestic violence to abstainfrom possession or consumption of alcohol or controlled substances during thevisitation; and
(vii) Impose any other condition that is deemed necessary toprovide for the safety of the child, the victim of domestic violence, or otherfamily or household member.
(4) "Domestic violence" means the occurrence of one or moreof 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 physicalharm;
(iii) Causing another to engage involuntarily in sexualrelations by force, threat of force, or duress.
(5) In every proceeding in which there is at issue themodification of an order for custody or visitation of a child, the finding thatdomestic or family violence has occurred since the last custody determinationconstitutes a prima facie finding of a change of circumstances.
(6) The fact that a parent is absent or relocates because ofan act of domestic or family violence by the other parent shall not weighagainst the relocating or absent parent in determining custody and visitation.