Can I Adjust the Father's Visitation in Rhode Island without going to Family Court?
December 05, 2012
What can be done about having my son's fathers visitation getting adjusted? My son stays with his father every weekend. The father lives with a family member because he does not have a place of his own. Not long ago our son slept over and the father's mother tried to kill herself. Police responded. My son saw something that I think he shouldn't have.
I'm afraid our son's father is not going to act civilly when I tell him that our son will not be spending the weekends there anymore. There are numerous people who live at that same place including his mother, several other teenagers and another husband and wife in the family. Of the four adults that live in that house I believe two of them drink constantly and abuse prescription drugs. I just need some advise on how to go about this without having to go back to court.
I cannot afford a lawyer right now, but I want my son to feel safe and I don't think he is safe in that kind of environment. Any help would be appreciated.
You're trying to do something without going to court? Then you make my job 10-fold more difficult because legal rights are maintained and enforced in the court system. Therefore, I am going to answer your question including court remedies because that is how (in my humble opinion) things could and should be handled.
You can file a Motion to Modify or Terminate Visitation in the Family Court. I understand that you don't want to return to court but if the child's father has court ordered visitation then you must return to court to modify it. You can't simply decide to change the visitation unilaterally. If you do, you are likely to be in Willful Contempt of Court for violating the Family Court's visitation orders for the father.
While I am not unsympathetic since I am an advocate for children, you mentioned quite a few things here. Yet more information would be helpful.
Based upon what I have to work with, here are the questions that I believe would be most relevant under the circumstances,
(1) What is the age of the child?
(2) What did the child actually witness? Suicide attempt? Police responding?
(3) Did the father have time to prevent the child from seeing the detrimental things or protect the child in any way?
(4) Was the father forced to deal with his mother's suicide attempt?
(5) When the child came back to you how did he react and what did he say and did it indicate to you that he was traumatized?
Remember that the visitation is between the father and the son. Even if the father lives in the same household as his mother, if the father could not prevent or and did not have time to prevent the son from seeing his mother's suicide attempt then there may not be a basis for asking the court to reduce the overnights. This man may have had to balance between addressing the emergency of his mother's life versus protecting his son from any trauma it was causing. Remember that very few of us know when someone else is going to to anything, let alone make a suicide attempt.
If the visitation every weekend has occurred while you were supposedly aware about everything else (except the suicide attempt) then you acquiesced to the rest of the conduct. To bring it up at a later date to prevent overnight visits may not be viewed by the court as a reasonably substantial change in circumstances warranting a change in visitation. Even a reasonable person would just say that it's a bit late to be bringing it up now. It is more like icing on the cake to make your case stronger.
Now, if the visitation for the father is not spelled out in a court order and you are the placement parent by a court order, then you normally have the right to talk to the father and let him know that his overnights need to stop for a while for the benefit of the child. Keep in mind that if the child has a good bond with his father, then you do not want to damage that bond just as the father should not be damaging your bond with your son in any way, especially if it relates to the conduct of a third-party.
As for avoiding court, it can't be done if it is to be done properly. If the visitation is spelled out in a court order you should file a Motion in court as I have suggested to modify visitation alleging that there is a substantial change in circumstances that warrants the modification (the legal standard to support such a motion). You should, however, spell out the circumstances in your motion that constitute the "substantial change in circumstances."
The court if very likely to want the answers to the same questions I'm wondering about at the time you go to a hearing unless you and the child's father enter into an order by a agreement (called a "Consent Order") which is acceptable to the Judge and approved by the Family Court.
Even if you make a verbal or written agreement with the father about the visitation for the child then it is only good as long as the people agreeing too it are willing to abide by it. Even if it is in writing and signed by both of you, unless it is in court and signed by a judge it isn't enforceable and therefore isn't worth the paper it's written upon. This is why doing things without returning to court really doesn't accomplish much in the way of security for anyone, especially the child.
My Very Best to You in Addressing Your Family Law Issues,
Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach."®
Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.
Call (401) 632-6976 for your low-cost paid advise session to make sure you know your rights.