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The RI Divorce Lawyer and Coach on "A Mother's Right to Leave with the Child."

I have seen this issue for years as a Rhode Island Divorce Lawyer.  Frankly, it has always perplexed me though I doubt this family law issue is restricted specifically to Rhode Island divorces or family breakdowns.

Imagine that Fred and Tina are a typical RI couple, married or not married, and they have a child together and both of them are listed as the natural parent of their child on his or her birth certificate.

As sometimes happens, Fred and Tina's relationship breaks down. They decide to go their separate ways. In most cases, Tina takes the child to live with her and promises Fred that he will be able to see their child whenever he wants to or as frequently as they can arrange it with their schedules.  

Fred sometimes feels helpless as he sees Tina leave with their child but since Tina is their child's mother he doesn't believe he can do anything except make sure he knows where their child has gone and make sure he sees the child frequently to be part of their child's life.

Does this sound familiar to you or to someone you know?  If so, I hope this brief article is helpful.

Imagine that you are Fred.  Now imagine that your ex-girlfriend or your wife is Tina and she's contemplating moving out with the child.  Are you worried?  If you are a caring father perhaps you should.

What happens if your wife or ex-girlfriend decides to disappear completely with the child?  Think this will never happen to you?  Think she'll never do that to you?  Or your child?   Think again.  It happens.

So let's look at the facts underlying this major family law problem that arises here.  Fred is about ready to watch Tina leave with their child and he believes he is powerless to do anything? 

Ultimately, I'm not a socialogist, yet its my opinion that societal opinions have convinced Fred (and many fathers) that he (they) have no legal right to do anything.  

Fred thinks that Tina can leave with their child and he has no right to do anything so the child can stay with him.

 In the State of Rhode Island, under our family laws Fred is wrong.  Without an existing court order of some sort to the contrary, neither Tina nor Fred have a superior right to have possession/placement of their child than the other as long as both the mother and the father are named as the natural parent on the child's birth certificate.  

Contrary to what most men seem to believe, in these circumstances, in the State of Rhode Island mothers do not have the right to simply leave with the minor child or children any more than a father does.  Strangely it seems as though possession is 9/10ths of the law.  If the mother has possession of a child and she is the natural mother as shown on the birth certificate(s) then the father has just as much right to remove the children from her possession and have the child or children with him and vice versa. 

The caution here is that this predisposition that Fred has that he has no right to have the child, to take the child, or to keep the child seemingly has migrated to some law enforcement officers and even some courts.  Thus, if a father does not return a child or keeps a child when he has a legal right to it is best if the father has a certified copy of the child's birth certificate with him listed as the natural father in order to protect himself.

Until an order issues from a family court with appropriate jurisdiction regarding the physical custody of the child/placement of the child the natural father should be able to retain that custody or placement. Without an Order to the contrary from a Court with appropriate jurisdiction over the physical placement of the child, a natural parent of a minor child cannot usually be charged with kidnapping his or her own child.

The end result is this.  As a Rhode Island father of a child or children, protect yourself whether your are married or not.  Get certified copies of all the children you are the natural children of and are listed as such on the birth certificate.  That's what Fred should have done.  

If you then see the child's mother wanting to leave with the child, you hold the child and you oppose her taking the child if you want the child to continue living with you and you can take care of the child.  Then, immediately meet with a lawyer to determine if you have the basis for filing a petition for physical custody/placement of the minor child(ren) and the possibility of an emergency motion to get a Court Order that the child(ren) are placed temporarily with you under the court hears the matter.

The crux of this article is to let Fred and other natural fathers know that mothers do not have the automatic right to simply walk out with the child(ren) simply because they are the natural mother of the child.


Authored By:


Christopher A. Pearsall, Attorney-at-Law

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Disclaimers: If this article contains a case scenario with names, dates or amounts, any resemblance any connection to any person or situation now or previously existing is purely accidental, unintentional, and is merely a mistaken creation in the mind of the reader.  

* The Rhode Island Supreme Court licenses all attorneys in the general practice of law.  The court does not license or certify any lawyer as an expert or specialist in any particular field of practice.

Disclaimer: This article does not constitute legal advice nor information that should be relied upon or acted upon by any reader and was not intend for same.  No person should act on any legal information he or she reads anywhere but should only act upon legal advice provided by an attorney licensed to practice in the jurisdiction(s) which relate to your specific matter and only after that attorney has been fully and completely informed of all the facts and circumstances of your specific matter and the attorney has had the chance to question you about those facts and circumstances and any other matters which may affect the attorney's advice to you.

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