Domestic Abuse & Violence Feed

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

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! 

The Abuse of Rhode Island's Protection from Abuse Laws!

We hear about domestic abuse frequently.  It's on television, billboards, radio, flyers and posters.  Unfortunately what we don't hear about is how Rhode Island's Protection from Abuse laws are themselves being abused by people who want to wreak vengeance on another person for any number of reasons.

For those that are unfamiliar with the process, it is relatively straightforward.  You fill out a few triplicate forms indicating your relationship to the person against whom the "protection from abuse order" is sought and the date(s) the threats or actions that lead you to reasonably believe imminent bodily harm is going to happen to you and the relief you are seeking from the court.  In otherwords you paint a picture for the judge that will read it.  What led you to file for this Protection from Abuse Request?  What was said?  What was done?  What do you have personal knowledge about regarding this person that justifies the relief you are requesting.  You sign this as a sworn statement under oath.

What happens next?  You go before the court and a Rhode Island Family Court Judge reads your application for a Protection from Abuse Order and your affidavit.  If the court finds any reasonable basis upon which to believe that the Order should be issued for the protection of the party applying to the court, the court will grant it.  This is all based upon your sworn affidavit.

So what is the relief?  Consistently it is a "no contact order" that the person against whom it is sought may not contact the applicant in any way until a full hearing can be held within the statutory amount of time.  More often than not, it also includes ordering the person against whom it is sought that he or she must remain out of the house.

If the parties have minor children together the Order may give exclusive custody of those minor children to the applicant which although not specifically denying the other parent visitation has that practical effect.

Unfortunately the system gets abused without consequences.  Persons come before the court and fabricate circumstances that never existed, distort the truth and make glaring omissions.  If the court knew the true facts and circumstances the vast majority of these abuses would be curtailed and the order would never be granted.

My stomach turns each time I am privy to persons who lie to the court with impunity because the law has not provided for adequate punishment for those who abuse Rhode Island's Protection from Abuse Laws.  Particularly those who lie to the court under oath on their affidavit.

It says much about people who boldly go before the court and lie to achieve their own silent agendas.   Fathers and sometimes mothers are ordered out of their homes and unable to see their children because the mother of their children feels scorned or has a boyfriend or girlfriend that they want to shack up with in the couple's home. Many times those people who seek the Protective Orders call the very person they do not want contact with in order to provoke a response, the other party (most frequently the man) is then arrested and then use the criminal charge either as further leverage in a divorce or as some sense of misguided vindication that makes them feel better.

Perhaps this all comes down simply to one's sense of honor or personal morality.  Yet for the man (I refer to "men" here because I estimate that at least 9 out of 10 applicants) who is forced from his home, unable to see his children, possibly subjected to criminal charges, may lose his job and/or the respect of friends and colleagues . . . it is an exercise in injustice and a very sobering experience that such a thing could even be allowed by the court.

So where does this abuse lie?  The abuse finds it's home in the audacity of those who without conscience lie under oath to the court for their own purposes with little worry of prosecution, retribution, or even penalty.

So what is the remedy for a man subject to all these damaging consequences, including prosecution, etc... if it is proven that the women's claims in the initial affidavit were false?  Dismissal of the family court's initial order but NOT any criminal violation that may have occurred on the Protection from Abuse Order that never should have issued.  The consolation for such a man who has not done the things he was accused of is no consolation at all. . . simply the realization that injustice exists and the impression that upon a person swearing before a Notary Public to lies in their affidavit the court appears to rubber stamp that injustice to the detriment of good people.

All My Best to You on Your Journey Through The RI Family Court,

Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

In Rhode Island Protection from Abuse Matters, No Contact means NO CONTACT!

Rhode Island's protection from abuse laws were created to protect the truly abused person, both men and women.  The usual result after the paperwork is filed and the judge has reviewed the complainant's application for an order of protection and affidavit about the facts which lead to the request is to grant a Temporary Order of Protection from Abuse.  When a temporary order is granted then it typically includes a restraining order preventing the defendant from having any contact with the plaintiff/complainant.

Some people don't realize that no contact means exactly that "NO CONTACT."  Too many times the defendant will find himself or herself back in court because they don't process those two words and make them stick in their brain.


No contact means

1.  No direct messages sent through a 3rd person;

2.  No messages that are indirectly sent through a 3rd person (i.e. John is standing there while Bill who cannot contact his wife tells John "She should know that I'm so mad I could do THIS to her while bill takes a sledge hammer to his car.";

3.  No messages even of a friendly or apologetic nature;

4.  No flowers or cards;

5.  No voicemail messages;

6.  No hangup calls (if the line is picked up for even a milisecond then you have created a contact);

7.  No messages left with family which could be interpreted as being intended to get to the person who has the no contact order;

8.  No responding to a phone call in any way made to you by the person who applied for the protection from abuse order;

9.  Even a wave of your hand or just watching a person mowing their lawn as you drive by their house has been interpreted as contact;

10. No emails, texts or photos;

11. No facebook emails or postings using any online service at all;

12. No phone calls;

13. No birthday or anniversary cards;

14. Even if you send a card to your child who is with the plaintiff/complainant may be interpreted as contact, especially if the child can't read;

15.  No following a person;

16.  No being in the same place as the same person who has the protection from abuse order against you.  Yes, you must leave immediately as soon as you realize it;

17. Essentially, anything whatsoever that is intended to get a message across to the plaintiff/complainant may be interpreted as "contact."

Remember, "no contact" does not mean "no hostile contact."  It means no contact at all, for any reason, at any time, through any means.

If you want to find yourself being arrested for a misdemeanor that may follow you for the rest of your life, then you can think you are smarter than the Order, the Judge and the law and try to put it to a test trying to use a technicality, but I can tell you that unless you plan on taking the matter to the Rhode Island Supreme Court and spend a lot of money for nothing it is better just to find yourself in handcuffs and under arrest just do the smart thing and remember this... NO CONTACT means NO CONTACT.  

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."

Gay spouse murder case puts focus on long-hidden problem

Published:  FEBRUARY 24, 2012

By Bella English |  GLOBE STAFF   

Around 8 a.m. on March 29, 2010, Annamarie Cochrane Rintala punched out of her overnight shift as a paramedic in Springfield. That evening, police found her wife, Cara Lee Rintala, crying and cradling Annamarie’s lifeless body in the basement of the Granby home they shared with their 2-year-old daughter, Brianna.

In October, following a 19-month investigation, Cara was charged with first-degree murder in the strangulation death of Annamarie, 37, making it the first murder case in Massachusetts in which the victim and suspect are same-sex spouses. Cara, a 45-year-old Ludlow firefighter, has pleaded not guilty. 

The case has shaken rural Granby, population 6,400. Residents of the Western Massachusetts town say they can’t recall the last murder.

“This is just a horrible tragedy, and I think it shocked us all,’’ said Police Chief Alan Wishart.

Eight years after gays celebrated the legalization of same-sex marriage in Massachusetts, the Rintala case is shining a light on domestic violence among gay couples, a subject that gay advocates say has festered in the shadows. Physical and psychological aggression among gay couples occurs at the same rate as heterosexual couples but is less likely to be discussed and reported, domestic violence specialists say.

“It’s still very much under-recognized in the community,’’ said Beth Leventhal, executive director of The Network/La Red, a nonprofit working to end domestic violence in the gay, lesbian, and transgender communities. “There’s still a stigma. For so long, we’ve been the victims of violence from outside the community, but it doesn’t mean we don’t also face violence from inside.’’

According to Jane Doe Inc., a statewide advocacy group that tracks domestic violence deaths, a second homicide involving a married gay couple in Massachusetts occurred a year after the Rintala case. Michael Losee, 41, of Malden, was charged in the March 2011 stabbing death of his husband, Brian Bergeron, 55.

A 2010 survey by the federal Centers for Disease Control found that 1 in 4 women and 1 in 7 men have been the victim of severe physical violence with an intimate partner. Although the national study did not differentiate between straight and gay couples, both The Network/La Red and Jane Doe both say they believe it happens at the same rate.

In heterosexual relationships, women are the victims more than 90 percent of the time. But they can also be abusers.

“What we see in lesbian relationships,’’ said Toni Troop, spokeswoman for Jane Doe, “is the same dynamic that occurs in heterosexual relationships, in terms of one person trying to exert power and control over the other person.’’

A rocky relationship

The Rintalas had a rocky relationship. They moved in together in 2004 and married in Provincetown in August 2007. Shortly before they were married, they adopted a baby girl, Brianna.

A year later Annamarie told Granby police that Cara had struck her with a spatula and a closed fist. When Cara was arrested, she said that Annamarie had hit her. In the two years preceding Annamarie’s death, each had taken out two restraining orders against the other, and both had filed for divorce.

Financial strain may have contributed to the tension. Each woman had racked up debt. At the time of her death, Annamarie owed $33,510 on credit cards; Cara was $35,000 in debt.

“Annamarie was a spendaholic by all accounts,’’ said First Assistant Northwestern District Attorney Steve Gagne, who is prosecuting the case. “She had opened a line of credit under Cara’s name without Cara’s knowledge.’’

Co-workers saw bruises on Annamarie over the years, said Gagne, but she would always attribute them to bumping into things, and the women would recant their allegations of abuse against each other.

In 2009, the couple filed separately for divorce but never followed through. Annamarie briefly moved into her own apartment in South Hadley, but they reconciled that November. In early 2010 they took their daughter on a Caribbean cruise for a new start.

“They were all aglow after they returned,’’ said the Rev. Lori Souder of the First Congregational Church of South Hadley. The Rintalas had started attending services that fall and were embraced by the church, which has other gay members. “They were seeking meaning for their own lives, their own relationship. I think they were seeking help on how to regain balance in their relationship.’’

On the night of March 28, 2010, a telephone argument erupted between the couple, according to the prosecution. A friend of Cara’s had gone to the house, and when Annamarie called home from work, she overheard his voice. “He’d come over without Annamarie knowing,’’ said Gagne, “and she felt that was sneaky.’’

The incident prompted a flurry of calls and text messages, with Annamarie telling Cara that the visit was disrespectful - that, as a married couple, they should be telling each other such things. Around midnight, she sent a text: “I HATE OUR RELATIONSHIP.’’

Cara told police that the next morning she took Brianna for a drive to let Annamarie get some sleep after she arrived home from work. At 5 p.m., surveillance cameras showed Cara throwing a rag in a trashcan in the parking lot of a McDonald’s restaurant in Holyoke. Testing revealed traces of Annamarie’s DNA, Gagne said.

Cara told police that when she returned home around 7 p.m., she saw the basement door open, glimpsed Annamarie’s feet, and ran to a neighbor, who called 911. She then returned home, where police found Cara cradling her wife’s body, which was covered in wet, pink ceiling paint. Annamarie had three scalp wounds; one to the back of the head, one on each side.

“It’s odd behavior,’’ Gagne said. He adds that “someone went to great lengths to make it look as if there was a break-in.’’ Gagne theorizes that the paint was used to cover up blood; nearby was an overturned 5-gallon can.

Insurance money

Two weeks later, Cara filed for Annamarie’s $512,000 life insurance benefits, which have yet to be paid. Annamarie had named Cara as her prime beneficiary and her brother Charles Cochrane as the contingent beneficiary. Cochrane, who lives in Springfield, contested the claim, saying Cara could not collect because she caused Annamarie’s death.

Lawyers for the Prudential Insurance Company of America have asked the court to decide whether it should pay the claim to her. That case, in US District Court in Springfield, won’t be decided until after the criminal case is over.

After Annamarie’s death, Cara took a leave of absence from her job, and she and Brianna moved in with her mother and stepfather in Narragansett, R.I. She was “psychologically unable to return to the house’’ that the couple had shared in Granby, her attorney said in a bail hearing.

Six months later, Cara sold the house but returned to work at the Ludlow Fire Department. She stayed with friends in Springfield, commuting to Rhode Island to be with her parents and Brianna when she was off duty. In April 2011, she quit and moved full time to Narragansett.

In Rhode Island, Cara worked as a paramedic for the Westerly Ambulance Corps. On Oct. 19, 2011, at 4:30 p.m., shortly after being indicted, she was arrested while driving, with Brianna, in Narragansett.

Cara is being held at the Western Massachusetts Regional Women’s Correctional Center in Chicopee. Brianna, now 4, remains with Cara’s parents and has visited her mother in prison.

Since Annamarie’s death, Cara and her parents have refused to let Annamarie’s parents see Brianna, Gagne said. A Rhode Island judge recently granted supervised visitation rights to Annamarie’s parents, Lucyann and William Cochrane, who live in Springfield and often baby-sat Brianna.

Neither the Cochranes nor Cara’s mother and stepfather, Sandra and Carl Montagna, would speak to the Globe.

A date for Cara’s murder trial in Hampshire Superior Court has not been set. Cara spends her time in prison “reading ferociously’’ and volunteering in the prison library, said Souder, who visits her.

Awaiting trial

Read the Entire article in the Boston Globe's Metro Section here.


Rhode Island Divorce Lawyers Ponder whether getting at the Truth is Prohibited in Rhode Island Family Court?

A particular Rhode Island Family Court issue arose a little more than four (4) years ago.  It was in the form of a particular question that I discussed with no less than nine  (9) lawyers only a few of whom I even remember and who shall remain nameless.  

Yet it doesn't matter who the lawyers were.  It matters that I overheard several lawyers who were unfamiliar to me discussing the same question not long ago relating to their own experiences in the Rhode Island Family Court.

The Rhode Island Family Court judges each have discretionary power by law.  Most assuredly they are the authority as to what can and cannot be done in their courtrooms short of a directive from the Chief Judge of the Family Court.

One of the main things that the Rhode Island Family Court judges generally endeavor to do is to protect and preserve the family unit as a whole.  I have not found this wording in any specific manual, statute, treatise, case law or Administrative Order of the Court.  I have learned this consistently from numerous judges over my years of practice in the family courts and before various judges.

Yet I am not the only Rhode Island Attorney who been thwarted in his or her divorce and/or post-divorce efforts at presenting the best representation possible for clients by a judge's prohibition of calling a child of the parties as a witness in a divorce or post-divorce case.  

Now, I understand and agree with the preservation of the family unit.  I am a strong advocate for uncontested divorces, reasonable people, counseling for those who need it, reunification of parents with their children if it is reasonably possible without psychological injury to minor children.

Ultimately I believe this should be a concern of the RI Family Court as a judicial institution as well as the individual family court judges appointed to serve the people and address the countless issues they hear day in and day out both fairly and equitably.

Yet it is disconcerting as a Rhode Island lawyer representing a party in, for instance a post-divorce matter involving the violation of the court's order to (1) be prohibited by a judge from calling a child of the parties as a material witness to defend my client or prove my client's case when the "child of the parties" is no longer a minor and/or when the child of the parties has insisted on testifying to reveal the truth of what he or she knows has occurred, and (2) to then have the judge berate or accuse me or my client of trying to take steps to undermine and possibly destroy the family unit.

Most assuredly, if the child of the parties were a minor of younger years then I might expect some skepticism on the judge's part and the attorney and/or client might well deserve a rebuke in the eyes of some judges.  Yet some judges have prohibited children of the parties who may be as old as 23 and who are married, have children of their own and who may have developed a career that rivals their own parents.  In such cases, wouldn't the prohibition of testimony violate a person's right to present either their case or their defense, notwithstanding a RI Family Court Judge's concern for the preservation of the family unit?

 Perhaps a proper alternative for a 17 year old might be for the RI Judge to speak with the minor child of the parties in camera with counsel so that the judge might determine the nature of the testimony, the level of it's material significance, the weight that might be given to the testimony or even the maturity level of the 17 year old minor child to determine the appropriateness of the testimony.  

Clearly some attorneys might simply call a minor child to the stand and ask questions designed to emotionally injure the other parents by using the minor child merely as a tool.  Such conduct should not be tolerated.  Yet to jump to the conclusion that this is what is happening when one party calls a child of the parties to the stand without further examination or consideration by the judge may place blind faith in mere allegations made by counsel who is zealously representing his or her client and who might clearly benefit by the exclusion of say, the 22 year old daughter who saw and/or heard the father violate the court's order directly and without hesitation.

However, might a better route be for the Judge to suss out the nature of the testimony offered by the child of the parties and it's purpose, determine any possible bias of the child, and consider other pertinent factors.

This would seem to be a more prudent route that would result in a more equitable decision and the pursuit of justice via hearing what may be the clearest indicator of the truth as to what did or did not occur rather than a family court judge simply setting a rule that in his or her courtroom a child of the parties shall not be allowed to testify regardless of age, maturity level, or the direct importance or content of the testimony itself.

There is always the fear that as practitioners before the Rhode Island family court, that if we mention an issue that may be considered by some to be controversial that as legal practitioners we might then become a persona non-gratis (a person not in favor with the court) and thereby risk that judge's will suddenly rule against our clients at every turn.

However, I choose to believe that the members of our judiciary are above such a juvenile standard of conduct.  Absent an extreme and direct encounter with a particular judge to a significantly greater degree, I believe that our judiciary is always cognizant that our family court judges are always aware that they are capable of improvement in their roles in the Rhode Island Judicial System just as we should be as Rhode Island lawyers.

This seems to simply be a matter of counter-balancing the two issues of family preservation with the search for truth with lies in each parties right to present evidence before the court to either made their case or to defend themselves against what may be unfounded allegations.

Therefore, I bring this issue to the forefront more for the consideration of the judiciary and for the betterment both of practitioners and the clients they seek to serve.

I certainly welcome any comments from the court, fellow practitioners and from the general public as I am certainly not beyond learning which I find to be a daily and never-ending practice of improvement to better serve my clients and present information to the court in a way that does not waste the court's time but also presents to the court the information needed for our judiciary to make well-informed, equitable, and just decisions for all.

Happy Holidays to the Members of the Rhode Island Family Court and to all who read my articles.