Rhode Island Divorce Tips

By:  Christopher A. Pearsall, RI Divorce Lawyer*
aka  "Rhode Island Divorce Coach" ℠

Regarding minor children there are two types of custody referred to in Rhode Island Supreme Court Cases. It is important to understand this when asking a lawyer questions because some lawyers may presume you mean one type of custody when you are actually asking about the other.

First, I will address legal custody.

1. Legal Custody - This is the legal right to participate with the other parent or guardian in making important decisions regarding your minor child or children. The presumption is, that all things being equal between the parents/guardians, each parent should have a 50/50 say regarding the various categories of important decisions. By way of information, when each parent or guardian has an equal say in the important decisions regarding a minor child this is called “Joint Legal Custody.”
   
   Legal Custody typically involves four (4) distinct areas of decision-making.
   
   
1. Religion - An important issue in this area of decision-making would be something such as, “Should our child/children be raised Catholic or Jewish?”
   
   
2. Education - An important issue in this area of decision-making would be something such as, “Should our child go to public school or a private school?”
   
   
3. Medical/Healthcare - An important issue in this area of decision-making would be something such as, “Should our child have this surgery or medical procedure at this time or not?”
   
   
4. Well-Being of the Minor Child - This is a catch-all category because neither the law makers nor the RI Supreme Court (in my state’s case) could ever fully outline all of the important issues that may affect the well-being of the Minor Child. This area of decision making can involve a variety of things ranging from “Should our child play in a dangerous sport?” OR, “Should our child change school districts” (for instance if the child has difficulty coping with change). It may perhaps even involve whether a child should move with a parent to another jurisdiction or country.

There is also physical custody which is closely related to but not identical to the concept of "placement."  Even though many lawyers use these terms interchangeably, they are not identical.

Physical Custody/Placement - Physical Custody is the right of a parent or guardian to have physical custody of a minor child or children at a specific time or times. Physical Custody when it relates to having physical custody of a minor child or children for more than 50% of the time is known as "Placement."  Placement is where the child or children have their primary residence where they live.

It is important to know the difference between these two types of custody because one is primarily a legal right while the other relates substantially to the physical location of a child at a given point in time and where a child lives when the amount of time at the physical location of one parent is more than 50%.

Both of these concepts affect how the family unit will function and the rights of both the parents and/or guardians as well as the children.  It also has affects on extended family members such as grandparents.

What should you expect regarding your legal custody, physical custody or placement situation?  If you don't know all the aspects and ramifications with respect to what you can agree to, feel free to call me for a reasonably priced Legal Advice Session.

Remember, if you don't know your rights, you might as well not have any.

Call Me Now at (401) 632-6976 to set up your Legal Advice Session today!

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

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Question: Can the custodian parent move with with children to another state because of a new job if there is a court order stating that Rhode Island is the home state of the children?

Reponse: No. If you have joint legal custody or this would prohibit you from having your scheduled parenting time with your children, then a parent is not supposed to make that unilateral move.  A parent with physical placement of the children must file a Petition for Relocation / To Move Out of State with the Minor Child(ren) in the Rhode Island family court, particularly if Rhode Island is stated in the Court's Order that Rhode Island is the "Home State" of the minor child(ren).

However, some parents do it just the same and file the petition afterward. Of course after the fact it is very hard to expect the court to order the parent to move back into the State of Rhode Island with the children.  However, it is possible.  It is also possible that if the court finds that the move was not in the best interests of the minor child(ren) if the parent makes the move first, it is entirely possible that the family court judge could find that is it in the best interests of the minor child(ren) to be placed with the parent who remained in the State of Rhode Island.

If you suspect that the parent would leave with the minor child(ren) to another state, it is best to be proactive and file an action in the family court with an Ex Parte Motion and supporting affidavit demonstrating why you have the reasonable belief that the custodial parent will take the child(ren) to another state.  It is possible that the Court will issue a Temporary Ex Parte Order based upon your initial Ex Parte Motion if the court doesn't issue an immediate Order prohibiting him or her from moving to another state. 

Typically the Ex Parte Motion asks for immediate emergency relief based upon what you know and represent to the court in your affidavit.  However, there must be an underlying action filed for permanent relief.  Very often the underlying action is a Motion for Change of Placement or a Motion to Preclude the Relocation of the Minor Children Outside the State.  The grounds used are that it is likely to cause "irreparable harm" to the child(ren) based upon their strong psychological relationship and ties with Rhode Island, including the other parent, friends, extended family, church, extracurricular activities, etc. The same grounds might be used, in part, for a change of placement of the children to the non-custodial parent.  You would obviously be asking that an Emergency Order immediately issue until such time as the custodial parent files a motion for the relocation and the matter can be heard on it's merits. This is not something that is easily done. You only get one shot at it and if you blow it you may find that if you are the non-custodial parent that suddenly your children are gone to another state despite your attempts to prevent it. I strongly recommend seeking the assistance of an experienced family law lawyer.

Best of Luck to You!

When I refer to legal custody here I am referring to a parent's legal right to have a say in making major decisions that affect a child's life, particularly those that fall into four (4) categories.  The four categories are (1) education, (2) religion, (3) healthcare, and (4) those major aspects that may substantially affect the "general well-being" of the child.

The most commonly adopted standard by judges is that parents should have "joint legal custody" regarding their natural minor children or adopted children.  The generally speaking the principle is that by virtue of being the natural or legal parent of a child that the "parent" should have an equal say with the co-parent in the major issues affecting a minor child's life.

The question then is, when might this standard not be appropriate.  There are no concrete hard and fast lines here when it comes to Rhode Island caselaw or statutes.  Yet judicial discretion and common sense provide us with what are the most common scenarios and what might cause "joint legal custody" to topple.

Some quick examples are as follows:

1)  A severe alcohol problem;

2)  Drug addiction;

3)  A criminal record or charges which indicate the minor child is more likely to be at risk if the parent is given equal decision making rights with other parent;

4)  Addictive, obsessive or violent behavior again indicating that the minor child may be placed at risk if both parent are afforded equal decision making rights for the minor child;

5)  Anger management issues which demonstrate an inability to exert a temperament consistent with making good decisions; or

6)  Abandonment of a child in the role of a provider or any attempt to be an active decision participant in the life of the minor child for a reasonable period of time. 

These situations are not, all inclusive.  They are merely examples.

All in all, the Rhode Island Family Court Judges do not wish to strip any parents of their joint legal custody rights unless it is necessary even on a temporary basis for the protection of minor children.

One judge gave me a fantastic example in my early years of practice that I have found helpful even as of the writing of this article.  The example is this.  Imagine that you are able to sit in the judge's position long enough to look at the facts presented to the court.  If you are able to look at all the facts and determine that either parent is unable to make good decisions for themselves then should that same person be allowed to make decisions for their Minor Children?  The obvious answer is no.

This is a standard that is not set forth in this manner in any Rhode Island law, nor in any Rhode Island case, but it is one that makes complete sense and it makes perfect sense.

Good rule of thumb from my standpoint is this.  If a judge can be convinced by the evidence presented that a parent is not reasonably capable of making decisions for himself or herself, then it follows that such a parent should not reasonably allowed to participate in making major decisions for their children until he or she gets back on track with their own life.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

Whether you need courtroom representation or need to know your legal rights in your case in Providence or in Newport, I am here to help when you need me.

Call me for your reduced-cost advice session at (401) 632-6976. 

Legal Custody is a major component in situations when children are involved with two parents whether it is in the context of a divorce or not.

Understanding legal custody is not a complex task and can be understood at a fundamental level by this checklist.

1.  The court likes to see Joint Legal Custody between parents of their minor children.

2.  This is the preference of the court because Joint Legal Custody is the legal right of each parent as a birth parent to have a say in major decisions regarding the child they are the natural parent of.

3.  The major legal decisions covered by legal custody are major decisions making for your child regarding Religion, Healthcare, Education and other things that substantially affect the general well-being of the minor child.

4.  Absent proving to the RI Family Court Judge that the other parent does not have the ability to make good decisions for the minor child. Typically obtaining sole custody by one parent involves substantially proving to the court that one parent is not fit to make decisions for the minor child.  The best way to prove this to the court is to demonstrate to the court that the parent is not able to make good life decisions for himself or herself and therefore should not be allowed to participate in making major life decisions for the minor child.

Knowledge is the key to understanding and making the best decisions for yourself and for your child(ren).

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach"™