By: Christopher A. Pearsall, RI Divorce and Family Law Lawyer*
Can my ex-spouse sign me up to be billed for childcare without my permission?
My ex and I have an order to split child care 50/50 for her work and education. She has gone and signed me up to be billed directly by the child care provider without my permission. She refuses to provide me her schedule of work and school. But the bills provide no information other than payment amount. 1. Is it legal for her to sign me up for a payment account without my signature? 2. What is my recourse if she decides to use the childcare for personal reasons and they bill me for half?
Under Rhode Island law, your ex-wife has no legal right to commit you to any payment agreement with the childcare establishment based on the family court order as you describe it.
The answer to your first question is "No." If she actually signed your name to a contract or to some other document to bind you to payment to the childcare provider without your authority or knowledge, then your ex-wife committed the crime of forgery and she can be prosecuted for that.
The answer to your second question is that your recourse is to take your ex-wife back to family court and file something such as a motion for credit for any monies you paid for one half of whatever time was spent on personal time rather than for work or education.
You will need to keep in mind that if you take your ex-wife back to court on the motion I suggest above then you will have the burden or proving by clear and convincing evidence that your wife used the child care for strictly personal purposes and that you overpaid as a result and should be entitled to a credit. You would likely have to prove when it was personal, how you know it was personal and what the personal activity was, how much was charged for that personal usage and how much you were overcharged for that personal usage on each occasion.
By: Christopher A. Pearsall, Rhode Island Divorce and Family Lawyer
How Can I Claim My Child If I Pay Child Support?
If you're looking for an easy answer that allows you to claim your child for State and Federal Tax purposes, you won't find it because it's usually not that easy if you are the payer of child support.
As a lawyer I focus my practice exclusively in Rhode Island Divorce and Family Law. Many people think they that if they pay child support that they are entitled to claim one or more children in whole, or in part, on their taxes.
Under Rhode Island Family law and probably in many other states the situation is just as John describes it. In the Rhode Island Family Court the spouses of a child can agree who will claim the child as a deduction on state and/or federal taxes. However, the agreement must be formal and must be approved by the family court in order to be proper and binding.
In the alternative, if there has not been an agreement approved by the family court between the parents about which parent will claim which child(ren) on their federal or state taxes as a dependent and/or claim the exemptions for the child(ren) , then one of then a parent may petition the court to award him or her one or more dependency and/or exemption claims for a child or children.
However, in Rhode Island if there is a divorce proceeding that has come before the court there is a presumption that the parent who has primary physical custody (also referred to as “placement parent”) of each minor child is the one who will receive the dependency and exemption deductions for the child or children in their placement. This is set forth in the Administrative Orders of the Rhode Island Family Court.
It should be noted that even if one parent agrees that the noncustodial parent may have the dependency and/or exemption allowances of one or more of the children living with the placement parent, OR if the state court orders that a noncustodial parent may have the dependency and/or exemption allowances for one or more of the children living with the placement parent, this is not all that is required.
Whether a parent may take a dependency deduction and/or the exemption allowances it is federal tax law that determines who may claim a dependency exemption for a child.
Even if a state court order allocates a dependency exemption for a child to a noncustodial parent, the noncustodial parent must comply with the Federal tax law standards and tests in order to qualify to claim an exemption for the child(ren).
To claim an exemption for a child(ren), the noncustodial parent must attach to the noncustodial parent’s return a copy of a release of claim to exemption by the custodial parent.
The release may be on a Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a document that conforms to the substance of that form. (See Internal Revenue Service Info Page)
In other words, while it may be nice to bargain with dependency allowances and exemption claims in a divorce or family law proceeding, it is not always as easy to bargain for the deductions for children in the proceeding.
Even if a custodial spouse agrees to give a noncustodial parent the dependency allowances and exemptions for a minor child as part of a settlement and agrees to sign IRS Form 8332, the agreement may be a waste.
Why? Essentially it is because if the noncustodial parent does not meet the Federal IRS Tax Regulations to take dependency allowances and exemptions on his or her taxes, then the deduction may well be lost to both parents or the noncustodial parent may raise a red flag for an audit for taking unallowable dependency deductions and exemptions.
By: Christopher A. Pearsall, RI Divorce and Family Law Lawyer
Can parents request vacation time/days with the child if they have no intentions of going on a vacation?
My court order allows each parent to take up to 2 weeks of vacation time each year. My son father has asked to take the last 2 weeks of the year because he hasn't used the "vacation time" yet. Aren't vacation times used to take the child on vacation. He has told me he doesn't plan on going anywhere but wants to use it before he loses it. The real issue is that Christmas is in this time frame and he has told me that he will not allow me to have our son for my holiday since the order doesn't state that holidays precede vacations. Is this something that I need spelled out in the order?
If a court order allows for "vacation time" it generally means a time for relaxation or recreation. While people often use the word "vacation" colloquially to mean to travel somewhere I agree with the first answer given by my brother attorney. Unless it is specified in a court order that the vacation time referred to MUST be time that is spent away from one's home then it is unlikely that a judge would find that vacation time has to be spent taking one's children somewhere other than his or her home. Regrettably, an order should normally state that parenting time on major holidays takes precedence over weekly parenting time and vacations.
Yes, it is something that you need spelled out in the Court Order to prevent issues now and in the future.
For this article though, let's concentrate are Rhode Island's own Domestic Abuse Prevention laws.
Rhode Island's Domestic Abuse Prevention laws cover abuse between a variety of persons. Specifically, to be within the jurisdiction of the family to court to hear the matter any acts considered "Domestic Abuse" must occur between 1) present or former family members, 2) parents, 3) stepparents, 4) persons who are or have been in either a substantive dating or engagement relationship within the past one year in which at least one of the persons is a minor. RI Gen. Laws Rhode Island General Laws § 15-15-1(2)
According to the reading of the statute abuse can occur between any combination of these particular classes of people. That covers quite a bit of ground as it relates to "family" that might be involved.
The statue goes on to describe what constitutes "domestic abuse."
Domestic Abuse is any one or more of the following actions perpetrated by a person in one of the four classes of people identified above:
(1) Attempting to cause or causing physical harm; (2) Placing another in fear of imminent serious physical harm; or (3) Causing another to engage involuntarily in sexual relations by force, threat of force, or duress. (4) Stalking or cyberstalking
While the individual definitions of these actions causes serious problems in themselves, perhaps the most problematic part of the Domestic Abuse Protection statutes is the the process itself.
In essence, a Person files a Protection from Abuse Complaint to obtain an immediate Ex Parte Temporary Protection from Abuse Order a person only needs to swear to an affidavit that 1) identifies herself or himself as a member of one of the four classes of people identified above, and 2) allege anything that falls within the four categories of domestic abuse with enough convincing language (notice I did not say facts) that gives the judge a reasonable belief that domestic abuse is likely occur to the person if the Temporary Protection from Abuse Order is not issued.
An Ex Parte Protection from Abuse Order is essentially a restraining order that usually often gives the applicant 1) immediate exclusive use and possession of the home and all the things in it, 2) no contact from the party alleged to have abused them at home, work or elsewhere , 3) sole legal and physical custody of any minor children the parties may have together, and 4) relinquishing any firearms to local authorities. The Order may include other things depending upon what is requested and whether the judge granting such an Ex Parte Order deems it appropriate in his or her discretion.
It is, unfortunately, all too easy to obtain one of these Ex Parte Orders against a man. Notwithstanding assertions to the contrary, men are perceived as the stronger sex. Somehow, because we are considered the stronger sex has somehow equated into the fact that by being the stronger sex we are more prone to use that strength to abuse. There is, however, no legal, factual or scientific basis for making this leap in logic. However, realistically that is what happens.
In speaking with several police officers this year, I discovered that when they are called to a "domestic disturbance" they are taught to enter the situation with the presumption that the man is the aggressor. This approach is no different in the court system. If a woman presents a Complaint for a Protection from Abuse against a man with the accompanying affidavit signed under oath, the Family Court Judge is likely to grant it if it appears the items in the statute have been alleged and the judge forms a reasonable belief that domestic abuse is likely to continue to occur or that occur again if the Ex Parte Order is granted.
The Ex Parte Order can last for up to 21 days before the court hears the matter based solely on the allegations made by the complainant. For purposes of this article only, let us assume that the complainant is a woman since very few men, in fact, make such complaints for fear that they won't be taken seriously or that they will be viewed as less than men if they do so.
The Case of Donald's Turmoil
Donald and Teresa were married. Teresa moved into an apartment that was solely in Donald's name right after they got married. They had a son about 10 months later. Donald came home from work one day and was served with an Ex Parte Protection from Abuse Order from the Rhode Island Family Court. The police informed Donald that he had been ordered out of the house and he would be given time to get some of his things. The police escorted Donald through his own house to the couple's bedroom where he was given 15 minutes to stuff a few essentials into a garbage bag. Donald was lead outside and the officers told Teresa they would stay outside and wait until Donald had driven away.
Donald was in shock and stopped in a parking lot to read the paperwork. The order was specific. Donald was ordered to stay out of the home. He was ordered to have no contact with Teresa. Teresa was temporarily awarded sole legal and physical custody of their son. In three weeks there would be a hearing to find out if the order should be continued for up to 3 years.
Then Donald read Teresa's sworn statement. Teresa had alleged that Donald had placed her in fear for her life by getting into a rage and throwing a coffee cup at her head causing it to strike the wall and shatter into pieces all while she was holding their son. Teresa claimed that this put her in fear for her life and the life of their child.
Donald was incredulous. Teresa had lied. Not a single allegation was true. Donald did not understand why Teresa was doing this. Donald had some clothes and toiletries and that was it.
He couldn't contact Teresa. He couldn't go home. He had no relatives or friends that he could stay with or call on for help. He had no way to make arrangements to see their two (2) year old son without breaking the Ex Parte Order.
So Donald did the only thing he could do. He slept in his car and clean up as best he could in the bathroom at work. Donald got paid and used the little money he had to get a lawyer thinking it was going to be just one hearing. On the day of the court proceedings, Teresa showed up saying she needed time to get a lawyer. Donald's attorney objected. The judge would not hear the case and continued the hearing another month to Teresa to get an attorney.
Fast forward a month. Donald had still been living in his car and cleaning up at work. Teresa got a lawyer just before the court date at no fee to her. However, now Teresa's attorney needed time to meet with her and to get up to speed on the case so the attorney asked for another continuance. Donald's attorney vehemently objected stating that he was being denied his due process rights as well as access to his son and his home. The judge granted 1 hour per week of supervised visitation for Donald at the courthouse as if he were some criminal. The judge also ordered Donald to continue paying the rent for the apartment until the court could hear the matter regarding child support. All of this was over the objections of Donald's attorney. The judge gave Teresa's lawyer a 5 week continuance.
During the ensuing 5 weeks Donald continued to live in his car as before. Out of the 5 weeks of visits that Donald was supposed to receive, he received 2 when Teresa claimed that she could find no transportation to get the baby to the courthouse the other (3) times.
Fast forward 3 months.... Donald had been ordered to pay child support without the underlying protection from abuse matter being heard. Again Donald's attorney had objected. Donald had seen his son a total of 10 hours in 6 months. Donald had lived in his car for 6 months because Teresa insisted on pressing the Protection from Abuse Complaint. Each and every time there was an excuse by Teresa or her attorney why the matter could not be heard. Either Teresa was sick, there was a death in the family, she didn't have a ride to court or the Attorney was on vacation. Still the court denied Donald his opportunity to testify or to try to prove that no Domestic Abuse was committed. Each time either Donald or his attorney tried to speak about the substance of the case the court refused to let them speak. Donald was served with divorce papers immediately after one of his supervised visits with his son.
Fast forward again to 6 months, Donald and his lawyer went into court. 5 continuances had already been granted to Teresa and her lawyer. This time, Teresa's lawyer stated that income documents had been subpoenaed from Donald's employer but that his employer had not come in with the documents so a continuance was needed since child support depended upon them. Donald's lawyer objected angrily. The judge was frustrated. However, the judge and was going to grant yet another continuance.
This time Donald's lawyer wasn't going to be silenced. Donald's attorney told the court how they had intended from the very start to prove that this court had been duped. We are prepared to give evidence of how Teresa lied on her affidavit, that she was having an affair, that she had moved her boyfriend into the house within hours after Donald had been forced out of the house by the Ex Parte Order.
The judge told Donald's attorney to stop or he would be found in contempt. The attorney didn't stop. He continued to describe how the court had helped Teresa because preventing the truth from coming out sooner allowed the boyfriend live in the apartment at Donald's expense. The attorney quickly described how this boyfriend had been "playing daddy" for the last 6 months while the court kept buying the excuses given by Teresa and her attorney. Donald's attorney expressed his outrage at how the court was denying his client his home AND his right to be the child's father AND particularly his client's right to be heard on this matter without reasonable due process.
Teresa's lawyer immediately asked the judge to speak with Teresa outside the courtroom. The judge called for a 15 minute court recess.
Donald and his attorney took a seat.
Twenty minutes later the judge came back out and Teresa and her lawyer came back in.
Teresa voluntarily dropped her Complaint for the Protection from Abuse. Teresa asked that Donald not return to the apartment until tomorrow. Donald agreed.
The next day Donald returned to the apartment. Everything was gone. Beds, big screen television, appliances, all of their son's things. He was left his clothes, one bureau a livingroom area rug. There was junk and pizza boxes strewn about the apartment, a few broken windows and several holes made in the walls. Donald had no idea where his son was.
If you have read this story, excellent. Now you are enlightened. This is not dramatized. In fact, it is minimalized because the entire story would be too long for most people to endure personally let alone to read.
The Protection from Domestic Abuse laws are too easily manipulated. They work on the presumption that when people swear under oath to the court that they will be honest and tell the truth, in context, so that the court can do the right thing for truly abused men and women. I'm an optimist at my center, but I realistically know that people lie every day. Many people lie on their taxes. Some lie when they are angry. Some lie just to get their way or because they have an ulterior motive. To many people it doesn't matter whether the lie is made before a clerk, judge or a notary.
This story is not out of the ordinary. All you have to do is lie on the affidavit to the court and for at least 3 weeks you can get a person thrown out of their own home, you keep them away from their children, you can keep them from all their possessions. In the end, even if you prove that the story they have given the court is fabricated, in 28 years in law in the courts of this state as well as Massachusetts, Vermont and New Hampshire I have not once seen a single person punished for committing perjury even though it is a crime.
Perjury in these types of cases is the most aggregious I can imagine. You are denied your home, your children, your property .... and all it takes is 3 to 5 sentences of lies phrased in just the right way. This does such a tremendous disservice to the people who are truly abused and who these laws were intended to serve and protect.
Most of all I would like to caution men. Protection from Domestic Abuse Complaints are the most frequently used tool of women who want to maintain control in a divorce and sometimes in other proceedings. By filing for this first it allows them to gain both control of the house, belongings and children and to taint the court into believing that the male spouse is an abuser. If a judge were to be tainted in this way, might a judge believe that a man who could commit domestic abuse would have no problem lying to the court?
Yet aren't we innocent until proven guilty you might think. Not under the Protection from Domestic Abuse Laws.
So is it possible to taint a judge by presenting a man as an abuser in such a way?