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January 2010

Rhode Island Child Custody Question: Can my ex-spouse stop me from moving out of RI with the kids?

Category: Family Law, Divorce, Child Custody and Adoption 

Location: Rhode Island

Physical Child Custody Question: I have sole physical custody of my two children and we share joint legal custody. We have been divorced for three years . I currently live in Lincoln, RI and would like to buy a home in Franklin, MA. It is 17 miles away and a 25-30 minute drive. Can the father of my children prevent me from moving such a short distance? There is nothing in our divorce decree that addresses this issue. He currently lives across the street from me and does not want to drive 25 minutes to pick them up or drop them off. I have agreed to meet him half way for visitation but he still has contacted a lawyer. Does he have a valid case?

Rhode Island Custody Lawyer Answers: 

Yes, your ex-husband can validly petition the Rhode Island Family Court for an Order preventing you from moving with the Minor Children out of the state. It is not so much the distance that is the issue. The issue arises in the fact that you want to move the Minor Children outside the geographical boundaries of the State of Rhode Island. It is irrelevant that there is nothing in your divorce decree or any marital settlement agreement that you may have had that addresses the issue. Courts and parties are rarely able to address every type of situation that might arise in a family after a divorce occurs, although this issue is a bit more common. However, your ex-husband should make sure he gets an experienced Rhode Island Divorce and Family law attorney to advise him regarding this issue. 

Why do I say this? 

Because the information he would receive would be substantially in your favor. Rhode Island case law is fairly clear that absent your ex-husband proving that you are moving for a vindictive reason such as to deprive him of his visitation or to make things more difficult for him, then as the placement parent (parent with physical custody) you only need to demonstrate to the court that you have a good reason for moving with the children. 

The reason can be anything from buying a house for the children, moving for a new job opportunity, better school systems for the children in the new area you would move to, a better neighborhood for the children, one or more family members live in the new area you propose to move to, etc... but all your reasoning should collectively be for the benefit of the minor children.

Generally speaking a "good reason" seems to be any reason that makes sense for the best interests of the children and you as the placement parent, other than one that vindictively is designed to hurt the other parent in some way. Therefore, even though your ex-husband has a valid case he can make before the court, based upon the facts you have provided here, he is unlikely to prevail in preventing you from moving with the children unless he can prove the vindictive reason for moving the children. 

Helpful Family Law Tip: 

To protect yourself, put your offer to meet him half way for his visitation and your desire that you don't want his relationship with his children to change in writing and spell out all the excellent reasons you have for moving with the kids and how it would benefit them. This might prove to be an excellent piece of evidence you might be able to present to the court at a later date if you need to.

I wish you the very best of luck.  I have addressed this issue over the years and it is one I am well versed in.  Your greatest challenge is not your legal issue.   

If you need further assistance, do not hesitate to contact me at (401) 632-6976 or review one of my helpful Rhode Island Divorce and Family Law Websites listed on this page.

Warm Regards, 

Christopher A. Pearsall, Esquire

Rhode Island's Only Full-Time Divorce Lawyer and Family Law Coach*

* Note: The RI Supreme Court licenses all attorneys in the general practice of law and has no procedure for specialization or recognition in any area of law.

Rhode Island Marital Settlement Agreements - Two Major Ways RI Marital Settlement Agreements Can Help You?

Jeremiah and Pamela Rhodes have been married for 23 years.  They own a home in East Providence, Rhode Island and have decided to divorce amicably.  They agree that Jeremiah will file the Petition for Divorce as the Plaintiff in the Providence County Family Court as opposed to the Washington County Family Court which covers Westerly, Rhode Island where Pamela Rhodes is now residing.

Mr. and Mrs. Rhodes expect the divorce to go relatively easily because they have no minor children and they have agreed to the manner in which they will divide all the assets and debts they have accumulated during the course of their marriage.

The terms of the settlement seem very simple to Mr. and Mrs. Rhodes but to be on the safe side they agree that they will each hire experienced Rhode Island divorce attorneys to protect their respective interests because they personally know very little about divorce law.

The Rhodes and their attorneys meet at the office of Mrs. Rhodes' divorce attorney, Jessica Cranston.  Mr. Rhodes and his attorney, Tim Kent arrive on time and they sit together to work out the formalities of the settlement.

By the end of the meeting they resolve their Rhode Island divorce holdings and the parties each have a bulleted list of how they have agreed to divide their marital assets and debts.

Within the next two weeks, the Rhode Island divorce attorneys for both parties draft a detailed Marital Settlement Agreement to be offered to the family court judge as a full joint exhibit at the time of the parties' divorce hearing.  The Marital Settlement Agreement outlines all the foreseeable aspects of the division of marital assets and debts between the parties, including the benefits and consequences for each party in the event of a default in any of the terms by the other party.

** The Jeremiah and Pamela Rhodes Marital Settlement **

 On the date scheduled for their uncontested Rhode Island divorce hearing, the Marital Settlement Agreement is offered to and approved by the Rhode Island family court and the Rhodes' divorce hearing goes through without any difficulty.

Jeremiah and Pamela are both pleased with the results. After the hearing they decide to meet for lunch.  During their lunch conversation they each mention what made them each feel better about the divorce process.

The conversation goes something like this:

Pamela:  Thanks for being so good about our agreement Jerry.  I know I was a bit picky in some spots and my attorney was a bit picky in others.

Jeremiah:  Well, that's why we got the lawyers right?  We each wanted to make sure our interests were protected legally and its no secret that neither of us know about this legal stuff. 

Pamela:  Well, thanks anyway.  My attorney said that this Marital Settlement Agreement was the key to a good hearing.  Frankly if that would make the hearing easier then I'm all for it.  I was a nervous wreck about this whole idea of having a hearing and testifying under oath with god knows who in the courtroom.

Jeremiah:  It worked out pretty good though don't you think?

Pamela:  It went great.  If I knew our Marital Settlement Agreement was going to make it that easy then I wouldn't have been nervous at all.  I could have saved a mint on all the coffee I drank. I was a nervous wreck over this damn hearing.

Jeremiah:  Would you rather have testified first? [ Jerry gently laughs and shakes his head ]

Pamela:  No way!  Just the few questions I was asked seemed to last forever and they were just a minute or two.  You had the tough stuff.

Jeremiah:  Tough stuff?  I don't even think we had any tough stuff because of that agreement.  Did you see that couple that the judge took before us?  Geez, they didn't have a Marital Settlement Agreement worked out at all and they had the judge fuming because they were all over the place.

Pamela:  Yeah, I think that made me even more nervous because they had lawyers too.  I was thinking that the judge was going to chew us up and spit us out for brunch after telling them to go out into the hallway and figure out what they were doing and then they could come back in.  [ Pam laughs nervously . . ]

Jeremiah:  Yeah, I know what you mean.  I'm just glad we had that Marital Settlement Agreement done.

Pamela:  What do you think made things easier for you?

Jeremiah:  Well, without trying to sound to cheap, it was having that Marital Settlement Agreement done.  My lawyer charges a lot more per hour for court time and because we had that Marital Settlement Agreement did you notice we didn't have to talk about [ counting on his fingers ] First, the sale of the house, Second the Division of the Equitable Proceeds, Third, the payment of the sale expenses, Fourth the time we had to get our stuff out, Fifth, what happens if either of us doesn't abide by the agreement, and. . .  ah hell you know all that stuff  [ Jerry is laughing, shaking his head in his hands with elbows on the table]

Pamela:  Yeah I know.  [ Chuckling . . .]  We would have been there answering questions for two weeks if we tried to explain all that to the judge.  

Jeremiah:  Instead, we just had to confirm that we both made an agreement about all our debts and assets and the lawyers asked the judge to approve it.  Like I said before, I don't want to sound cheap but that agreement shortened our hearing from . . . . I don't know . . . several hours at least . . . to a measly 10 minutes or so.  That might have saved me more than $800.

Pamela:  Oh I'm with you there.  My attorney charges more for court time too so I didn't mind at all that our court time was only 10 minutes.  That agreement was definitely the way to go.

Jeremiah:  So do we actually agree on two more things without our lawyers, Pam?

Pamela:  What do you mean?

[The waitress brings their luncheon drinks.  They each take their own drink.]

Jeremiah:  We actually agree that our Marital Settlement Agreement saved us tremendous time and aggravation in court and saved us both money.  Am I right?

Pamela: [ Tilting her head slightly and smiling. ] We are in definite agreement Mr. Rhodes!

Jeremiah:  [ Jerry raises his glass to toast. ]    To US then! 

Pamela:  [ Clinking her glass to Jerry's while pausing and smiling ] . . . But it will still cost you lunch, Jerry.

Jeremiah:  Deal!

[. . . They both break into laughter as lunch is delivered. ]

Disclaimer:  This is a hypothetical scenario. Any resemblance in the names of the parties, attorneys or circumstances contained herein to any persons known or otherwise thought to exist in reality is purely coincidental is merely in the imagination of the reader has no relationship to any persons, litigants, attorneys or circumstances in actual existence.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

Rhode Island's Full-Time Divorce* Lawyer is Now
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Copyright 2009.  Christopher A. Pearsall, Esquire
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* The Rhode Island Supreme Court licenses all attorneys in the general practice of law.  There is no recognition for specialization of attorneys in any area of law.

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