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Divorce and Family Court Decorum in Rhode Island - Simple Tips for Represented Litigants

Ri_divorce_judgeBy:  Christopher A. Pearsall, RI Divorce and Family Court Lawyer*
a.k.a.  The Rhode Island Divorce Coach ℠

I realized 10 years ago that not everyone could afford a lawyer to represent them in court. Sure, there were some organizations that provided volunteer lawyers or lawyers who would take on a Pro Bono case in Rhode Island.  The trouble was that they were quickly saturated with people who wanted a free lawyer for their case.  Yet there wasn't a service that I could find that offered help to individuals so they could represent themselves properly in their own divorces.  So in 2006 I became the Rhode Island Divorce Coach to do just that less than the cost of typical representation.

Recently I was reminded of a few lessons I give people in courtroom decorum.  As lawyers I suppose we treat these things as commonplace or perhaps even common sense.  They aren't common sense to everyone though.  Sometimes, they aren't followed by long time practicing attorneys. 

I've always thought stories are the best teachers so let me give you an example.  Keep in mind that  " . . . " means that someone was trying to continue talking.

The Divorce of Todd McFadden vs. Sarah Jacobsen

Todd McFadden and his wife Sarah Jacobsen were getting divorced.  Todd was the filing party ("Plaintiff").  Sarah was the party served with the initial Rhode Island divorce complaint ("Defendant").  Todd's lawyer filed a Motion for Temporary Orders.  Sarah's lawyer objected to that motion..  Here is how the dialogue went in the courtroom.

JUDGE:  So we're here on Plaintiff's Motion for Temporary Orders, correct counsel?

Todd's Lawyer:  Yes, your Honor.

JUDGE:  Okay counsel, I'll hear from you first.  Then I'll hear from Defendant's counsel.

Todd's Lawyer:  Your honor we are moving for Orders allowing only the Plaintiff to be the one to bring the two minor children to their soccer practices and games.

JUDGE:  Reasoning counsel?

Todd's Lawyer:  The Defendant mother already has a boyfriend only 4 weeks into this divorce.  She has been exposing these minor children to this boyfriend.  She and the boyfriend pick up and drop off the children to their soccer practices and games.  It's our position and hopefully the court's that to prevent confusion or irreparable damage to the children at this delicate time in this family's life that it's in the best interests of the children that the Plaintiff be the one who drops off and/or picks up the children.

JUDGE:  Okay, defendant's counsel may I hear your objection.

Sarah's Lawyer:  Thank you.  My client's objection is that she has always brought the children to their soccer practices and games and to change their routine would be detrimental to the children's routine during the divorce.

JUDGE:  But counsel I'm sure you understand that exposing the minor children to her boyfriend before this case is finished is poor judgment and could damage the children and . . .

Sarah:  He's not my boyfriend. He . . .

Todd:  Judge, he is too her boyfriend!  C'mon Sarah, I've had an investigator following you since before I filed for divorce.

JUDGE:  Counsel, kindly get your client's under control.  They should be aware how we do things in a court of law.

Both Lawyers:  Yes, Judge.

[Each lawyer whispers to their client.]

Judge:  So, we have mom who's always been bringing the children to soccer practices and games routinely but now she's bringing them with an alleged boyfriend who supposedly the Plaintiff can verify with a private detective who has been following them. So I'd . . .

Sarah's Lawyer:  Judge we don't think he's been having her followed at all and . . .

Judge: [Facial Expression at Sarah's lawyer) As I was saying, I'm be inclined to want to keep mom bringing the children for consistency since she's always done it [Todd whispers to his lawyer] yet because of this boyfriend issue . . .

Todd:  What?  But she hasn't....

Todd's Lawyer:  [Putting his hand on Todd's shoulder to silence him.] But judge mom hasn't been routinely . . .

Judge:  [To Todd's Lawyer]: Counsel, was I speaking?  I believe I was and ....

Todd's Lawyer:  Yes Judge, but...

Judge:  That's enough.  I've heard you both.  Plaintiff's Motion is denied.  I'm ordering that the Defendant mother shall continue to bring the minor children to and from their soccer practices and games but she is prohibited from bringing any unrelated person of the opposite sex with her on pickups and drop offs.

Todd's Lawyer:  But . . .

Judge:  Yes.

Todd's Lawyer:  Judge please note my exception to your decision for the record.

Judge:  So noted.

You would be amazed how big some things that seem so small can be so big.  Hopefully you were able to identify the three (3) big lessons in courtroom etiquette that can be learned from this simple little exchange.  After you look at them, see if you can figure out which things made the biggest difference.

1.  Let Counsel Speak for You:  If you've hired a lawyer, then you've hired him or her for a reason.  Lawyers are hired for their expertise in a particular area of law including the manner in which the court should be addressed.  In this case it was divorce and the family court system.  So let the lawyer do what you hired him or her to do.  When you have a lawyer a client who jumps in and speaks directly to the judge without being asked to do so directly by the judge or their lawyer is considered being rude and shows a lack of respect for the court. Whatever your good intentions may be, keep your mouth shut until your lawyer or the judge ask you to address the court, otherwise you are most likely going to hurt your case.  If you look back in the dialogue above, you will see that both Todd and Sarah addressed the judge directly and the judge actually scolded their attorneys and told them to get their client's under control.  They both hurt their cases by not having their attorneys address what needed to be said instead of speaking out of turn without the court's permission.

2.  Don't Speak to the Other Party: Unless the court has requested that there be direct discussion between the two parties while in a court hearing, don't do it!  , then do not directly talk to the other party.  If you were going to directly talk to the other party in the first instance you should not be in court at all and you should have been able to resolve the matter without even being in court.  Once again, this is considered rude and disrespectful to the court, especially when you have hired a lawyer who is responsible for presenting your case to the court.  In this case look at the testimony.  Todd directly addressed Sarah and while the tone isn't evident the wording leads us to believe that he was using a condescending tone.  Todd hurt his case with the judge here and started sending his own motion on a downward spiral.

3.  Don't Interrupt the Judge: When the judge is talking, even if what the judge is saying seems wrong, you do not interrupt the judge.  That is not only rude but it is one of the biggest offenses to a judge and with good reason.  You are before the court asking for something.  If the judge is speaking and you interrupt, then you have now offended the very person that you are asking to give you some relief.  If you were going to ask someone for a short term loan and before you gave them the loan you did something that was a slap in the face to the person, you just decreased the chances of getting that loan by more than 50%.  The same is true for court.  It is a place of respect.  You disrespect the person running your hearing in that court and it's just like a slap in the fact.  Here, after Sarah interrupted the judge, Todd continued the interruption.  Why is that significant?  Because Todd should have had enough time and common sense to mentally process that Sarah had done something wrong that he should not do, namely interrupt the judge.  Yet he not only continued the interruption of the judge, making it longer and wasting the court's time but he also interrupted Sarah and spoke directly to her, neither of which he should have done.  Todd compounded the problem.  If Todd had looked at the judge he might well have caught a cue from the judge's facial expressions or mannerisms that he/she was not happy about it.

Which way to do you think the judge would have ruled if Todd had interrupted the judge and spoke directly to Sarah?  If he had asked his attorney to address the issue and the attorney had done so correctly, what to you thing the result would have been then?

Can you see that the judge seemed to be going in Todd's direction until he and the lawyer opened their mouths in a disrespectful manner to the court?

Do you think Todd's lawyer could have salvaged this motion and won it?

When you are represented by a lawyer in a Rhode Island divorce case or otherwise, take your cues from the lawyer.  It is all too easy to let your emotions get the better of you and make grievous mistakes in etiquette that end up losing you a motion or your entire case.

In my professional opinion, this motion was not lost in this case based on the law, facts or evidence. Todd's motion was lost in this court hearing solely due to disrespect of the court and the presiding judge.

 *Note:  Any resemblance to any real persons or situations currently before the court is merely coincidental and/or accidental.

 

 


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

Screen Shot 2016-11-21 at 4.51.24 PMBy: 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.


Protection from Domestic Abuse - The Rhode Island Process is Fraught with Peril for Men.

Guy-in-handcuffs
Who Needs the Protection?

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

There are laws in virtually every state that protect the abused.  In Rhode Island we have protection from abuse laws and it is important and appropriate that we have them. 

However, they are not only laws but mindsets that are badly in need of revision and reconsideration.

These laws are codified in Chapter 15-15 of the  Rhode Island General Laws § 15-15-1* et seq. and entitled "Domestic Abuse Prevention."

Rhode Island also has Chapter 15-15.1. The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act which relates to the power within our state to seek the enforcement of Protection from Abuse Orders and Judgments made by foreign tribunals.  For the sake of brevity, these are orders that are generally those issued by courts and tribunals other than the State of Rhode Island. 

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? 

Hey, anyone can be tainted! 


Where do divorce orders come from? Many people are surprised by the answer!

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Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Many people think the court is responsible for creating the court orders relating to divorce and family law matters after the judge has stated them from the bench or the parties have agreed upon them.

This is a mistake often made by pro se litigants and new attorneys in Rhode Island.  It is up to the litigations in the matter to create the court's Order consistent with what the judge has stated from the bench.  If this means that you must obtain the transcript of the hearing or a transcrip exerpt that contains only the judge's Order, then you should do so.  

Remember, the Orders are the documents that the court uses to review the file and determine the travel (i.e. what has happened) in the case.  It is often quoted by judges that a court speaks through it's Orders.  Therefore, without orders for each part of the proceeding, a further review of the file leaves gaps in the timeline.  This leaves judges missing critical peices about what occurred during the court proceedings and as a result the judges are without the appropriate information to make equitable decisions in the case.

Just remember that there are procedures for submitting Orders to the Court, including waiting periods once submitted.  These procedures for those who are unfamiliar with them, can be found in the Rhode island Rules of Domestic Relations Procedure. 


Are Extracurricular Expenses for your Child Covered by your Court Ordered RI Child Support?

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Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Often times payors of child support don't know what is covered and what is not covered by their child support payments.

The truth be told, there is no exact list as to what child support covers.  Yet there is one thing that seems clear.   Expenses for extracurricular activities that involve items that are separate and distinct from basic items that you would think would be covered by child support re not covered by child support payments.

The statute that creates theRI Family Court gives it among other things ... the power to handle issues relating to the support of minor children.  The statute does not explicitly say "child support" and because of this their are cases that have been brought before the Rhode Island Supreme Court such as Chiappone v. Chiappone, 984 A2d 32 (R.I. 2009) that mention orders of both child support and separate orders for extracurricular activities.  Even though the case was not before the Rhode Island Supreme Court on the challenge of an order of extracurricular activities, it is implicit that such orders are within the power of the court because one would expect someone on the Supreme Court panel to comment in the very least if it were outside the power of the family court to issue such orders.

Therefore, child support and extracurriculars are separate and distinct costs and expenses and that is precisely why most family law attorneys deal with each of these issues separately in Marital Settlement Agreements between parties.

However, an issue still remains.  What happens in the absence of lanugage about the extracurriculars?  Many child support recipient parents and guardians believe that it is the duty of the child support paying parent to pay all or at least 50% of these extracurricular expenses.

This is incorrect.  Extracurricular expenses are not an entitlement of any person or child.  A child may receive them if and only if the parties agree to these expenses in their marital or property settlement agreement, or if the court issues an order requiring a parent to pay a portion of those expenses, usually those expenses that are both reasonable and agreed upon by both parents in advance of incurring the extracurricular expense or signing the child up for the activity that involves the extracurricular expense.

A parent who makes payment of extracurricular expenses may do so because they love their child and they have the extra money to do so at the time.  However, no parent should take that as a commitment that they are required to continue to do so in the future absent a formal agreement or a court order as stated above.  Any parent receiving extracurricular expenses from a parent who has no formal agreement and no order from the court requiring that such payments be made should count himself or herself lucky that a parent cares enough for their child to do so.  

There is no "entitlement" to contribute to extracurricular expenses.  They are, as the word denotes "extra."  They are not essential or necessary and many children go without extracurricular expenses that cost a single dime.  Therefore, absent a formal agreement in a divorce or legal separation or a court order, the recipient parent most likely made the choice of enrolling the child in the extracurricular unilaterally.  Therefore It is only right that the enrolling parent should expect to pay for that extracurricular himself or herself without expecting contribution from the other parent.  

Any contribution by either parent that is without a formal written contractual agreement or a court order is merely gratuitous based upon the love of the child.

Neither parent can reasonably expect that upon demand of the other parent under these circumstances that the other parent contribute to the extracurricular activity of the child, especially if he or she does not have the opportunity to participate in or accompany the child in attending the extracurricular function.

Any parent who enrolls a child in an extracurricular activity without clearing both the extracurricular activitiy AND each expense to be incurred that they would ask the other parent to contribute to has unreasonable expectations and has failed to consider the finances and financial plans of the other parent.  

Ultimately any parent who plans in this way should expect that the court is likely to rule that the parent who made the extracurricular plans for the child and expended the funds on behalf of the the child should do so entirely at his or her expense.