Rhode Island Divorce Tips

A Guardian Ad Litem ("GAL") is typically a lawyer that is appointed by the court in a Rhode Island Family Court proceeding to protect the best interests of the minor child or children.  After an investigation into the issues before the court, the GAL typically provides a written report that contains his or her investigation, findings, and recommendations for the court to consider. The GAL's report is typically given substantial weight before the court in the case because the court has appointed the GAL to assist the court by performing this investigation and making unbiased recommendations. The GAL's fees are often paid by one or both parties in the action. 

A third-party asked if I would answer this question but there is truly no way to answer it the way it may have been intended so I will answer it as it was posed. 

Yes, you can file a lawsuit against a GAL.  In fact, nothing prevents you from filing a lawsuit against anyone for any reason whatsoever.  However, whether that lawsuit will prevail or whether it might be dismissed is another issue entirely.  Over the years I have seen people make up fraudulent facts and then file lawsuits based on those facts purely to harass someone, even if they have to legal basis.  

The challenge in answering this question is that there are lawsuits are supposed to be based on facts applied to a "valid cause of action" that is recognized by law in order to have any chance of prevailing at all.  A lawsuit that is unsupported by the facts or for which there is no legally recognized cause of action typically will fail and will either be dismissed by the court or the court will enter a judgment in favor of the opposing party.

In the case of a lawsuit against a GAL, you will want to consider several things, 

1.  If you file a lawsuit against the GAL what do you expect to accomplish?

2.  Will filing the suit against the GAL make your position in the family court case worse?

3.  What are the facts that cause you to want to file suit against the GAL?

4.  What causes of action, if any, exist that could be filed against a GAL with the facts that you have?

5.  Did you challenge the GAL's report findings and recommendations in the Rhode Island Family Court before filing your lawsuit?  The family court is your first level of recourse if you do not approve of the investigation and/or recommendations.

6.  What defenses could a GAL assert in his or her defense that might cause your case to be dismissed or diminished?

Without knowing the facts that cause you to want to file your lawsuit, no attorney could determine whether or not you have a recognized cause of action against a GAL or whether those facts support any cause of action against the GAL. 

One legal factor to keep in mind and research before filing any action against a GAL is the concept of "judicial immunity."  Generally speaking, judicial immunity is the legal principle that judges, magistrates and others acting on behalf of a court should be (and often are) exempt from civil lawsuits if they are acting within the scope of their judicial duties. This principle exists because those acting in a judicial capacity could not theoretically do their jobs impartially and without undue influence from a party if they can be sued in civil court.

It is possible that a GAL by being appointed by a judge to assist the family court with an investigation and recommendations for the Court in best interests of a minor child or children may be considered as acting in a judicial or quasi-judicial capacity and he or she may be protected from civil suits by law.

Ultimately, be sure you understand all the consequences, repercussions and aspects of filing a civil suit against a GAL before you do so.  It could do considerably more harm than good.

A relocation case in the Rhode Island family court typically occurs when one parent who either has primary physical placement or joint physical placement of one or more minor children wants to relocate with that minor child outside the state.

Relocation cases are very often opposed and a fair number of them go to trial unless you can reach an agreement or accommodation with the non-relocating parent as to how and when they will have visitation or parenting time with the minor child or children and how transportation might be arranged, etc..  In joint physical placement cases where each parent has the minor child or children 50% of the time, if the relocation is a significant distance such that their can no longer be joint physical placement, then often times a trial is inevitable.

During a trial both sides present evidence regarding the children, the family, schooling, relationships, etc.. that typically fall into the factors set forth by the RI Supreme Court in Dupre v. Dupre, 857 A.2d 242, 257-60 (R.I. 2004) that judges must consider in relocation cases.

The relocation factors judges must consider are as follows:

1.  The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent.

2.  The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.

3.  The probable impact that the relocation will have on the child's physical, educational and emotional development. Any special needs of the child should also be taken into account in considering this factor.

4.  The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements considering the logistics and financial circumstances of the parties.

5.  The existence of extended family or other support systems available to the child in both locations.

6.  Each parent's reasons for seeking or opposing the relocation.

7.  In cases of international relocation, the question of whether the country to which the child is to be relocated is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction will be an important consideration.

8.  To the extent that they may be relevant to the relocation inquiry, the Pettinato factors ^[1] will also be significant. 

Typically relocation cannot be for a frivolous purpose or to deprive the other parent of their placement or visitation rights.  Ultimately the court will look so see where, how and why the relocation is taking place and what its anticipated affect is on the child and parents as well as extended family relationships and support systems.

Since relocation almost invariably relates to the best interests of the minor child, the parent seeking to relocate and the non-relocating parent should also consider and present evidence to the court how the relocation will affect the best interests of the child as set forth in Pettinato to the extent that the Dupre relocation factors do not already address those best interests.

[1] Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) (Sets forth for the seven (7) though non-exhaustive list of factors that must be weighed when determining the best interests of the minor child.)

By:  Christopher A. Pearsall, RI Divorce & Family Law Lawyer*

QUESTION:

What is the best way to beat child support?

ANSWER: 

There is no good way to beat child support. I agree with Attorney Andy Chen on Quora.com. I have seen many people try to “beat” child support ( by which I assume you mean that the person avoids having to pay child support without consequences). It never ends up well for that person.

Failure or refusing to pay child support often has many direct and indirect consequences, such as accruing interest at an exorbitant rate that keeps compounding, loss of your driver’s license, damage to your credit rating which prevents house purchases, car purchases, or even small personal loans, possible imprisonment, possible loss of your job, vengeful behavior from the child’s other parent or even from the child later in life.

People who try to beat child support NEVER end out better for it.

I understand that sometimes money is tight. I also understand that some people feel they have good reasons for trying to avoid or beat child support. However, in the end I have to wonder why someone would try to “beat” child support so they don’t have to pay anything.

Whatever the reason, if a person is the actual biological parent of a child then there is a legal, practical, and to many a moral obligation to help support a minor child. Minor children typically aren’t able to support themselves financially, which includes putting a roof over the child’s head with heat and electricity, food for the child to eat, clothing for the child to wear, etc…

It is important regardless of whether I am a lawyer or not that if we have played a role in procreating or adopting a child that each of us take personal responsibility for that role and help provide the basic necessities for the child. If any of us as people are not prepared to do that under any circumstances, then we should not perform the acts that result in procreation or adoption until we are prepared to undertake that responsibility and realize that it continues at least until the minor child is emancipated.

Remember, that opposing an increase in child support for justifiable reasons is not trying to “beat child support”, it is merely balancing the needs of both the parents and the child. In some cases, there are justifications before the court for temporarily or in the rare occasion permanently terminating child support to a minor child. However, trying to “beat” child support for a minor child you helped bring into the world for the sake of simply avoiding your obligation as a biological parent is neither a reasonable nor acceptable position. If this is the reason for your question, then the counter questions to you would be

1. What do YOU mean by “BEAT” child support?
2. What are your justifications (often confused with reasons or explanations which are not the same) for trying to “beat” child support.

In any event, unless you have viable legal justifications that can be argued before the court regarding child support, then it is never a good idea simply to try to find practical ways to “beat” child support. In the long run it never pays to try to “beat” child support.

It is always best to sit down for an advice session with a competent and experienced family law attorney in the state in which you have your issue before taking any kind of action.

For people within the State of Rhode Island, feel free to call me to set up your comprehensive low-cost flat fee legal advice session. Know what your options are before you act.

Call today and be on your way to getting the answer you need!  (401) 632-6976

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By: Christopher A. Pearsall, RI Divorce and Family Law Lawyer*

QUESTION: 

Can my ex-spouse sign me up to be billed for childcare without my permission?

DETAILS:

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?

ANSWER:

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.

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By:  Christopher A. Pearsall, Rhode Island Divorce and Family Lawyer

QUESTION: 

How Can I Claim My Child If I Pay Child Support?

ANSWER:

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.

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