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The Rhode Island Divorce Coach Answers: Legal Custody . . . will I lose my child?

Here is a quick coaching tip for anyone who has received a Motion to Change or Terminate Legal Custody that will be heard before the Rhode Island Family Courts.

First, if you must represent yourself in the Rhode Island Family Court System regarding this motion, make sure you understand the motion itself.

If the motion says "Legal Custody" and NOT "Physical Custody" or "Placement" then unless the motion uses some other words relating to where the child resides, then it deals with the fundamental right you have as a parent to participate in the decision making process for your biological or legally adopted minor children regarding 'major aspects" of the child's life. 

These "major aspects" of the child's life have generally been held to include (a) medical care, treatment and anything constituting a reasonably important health-related concern, (b) the religious upbringing of the child, (c) the child's education and schooling, (d) nature and form of discipline for the child, and (d) anything of a reasonably substantial nature affecting the general welfare of the child.

Generally speaking, if no order has been previously been issued by Rhode Island or any other state's court, then as long as there is no dispute as to who the biological parents are, a general presumption is often made (as it should be) by most Rhode Island family court judges, that each parent has an equal say as to the major aspects of the child's legal custody. 

When there is disagreement between the parents of the child, then the Court is called upon in a legal custody dispute to hear both sides of the issue and determine what is in the best interests of the minor child.  Note that I did not say that the judge rules in favor of one parent or another.  The court takes a special interest in protecting the minor child and, if necessary, the judge will fashion a remedy is in the best interests of the child based upon the circumstances and the disagreement of the parents.

In short, if "Legal Custody" and not "Physical Custody" or 'Placement" is the issue, the issue is not whether you will lose your child.  The issue will be whether the court will agree with your decision as a legal custodian of your minor child, or whether the judge finds any substantial conditions or circumstances regarding your ability to make proper decisions for your minor child is impaired to such a degree that your right to make decisions for your minor child should be limited or denied entirely.

Generally speaking, it has been my experience in my divorce and family law practice that judges are very hesitant to remove a parent's decision making rights as a legal custodian without substantial just cause.  Ultimately, a good rule of thumb I have followed is this.  If the court gets the impression that you are unable to make good decisions for yourself, its a safe bet that the judge may not believe you can make good decisions for a minor child.

What might constitute just cause to deny your legal custodial rights?  Criminal charges, Alcohol Addiction, Drug Addiction, Domestic Violence, and substantial inability to maintain employment and support your child or participate in your child's life for an extended period of time are just a few.

In the end, know what you are defending against and know what your shortcomings are and how to address them to the court.  Be respectful and present yourself in the best light possible.  If something in your present or your past doesn't make you look good to the court, try to make sure you get the time to explain to the court how it is unrelated to the decisions for your child or how your experience has helped you learn to make better decisions for your child.  An attitude of caring for your child's well-being over your own is always a plus.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Copyright 2009.  Christopher A. Pearsall, Esquire
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