Can I Sue a Guardian Ad Litem in my Rhode Island Family Court Case?

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.



Your Rhode Island Divorce Agreement - The Devil is in the Details!

John and Sheila handled their own divorce to save themselves attorney's fees. Now they had to return to court to settle who was entitled to what part of their home sale proceeds based on their divorce agreement.

During their divorce, Sheila wrote up a very short divorce settlement agreement of only a few pages and very few details and both parties signed it.  This agreement was accepted and approved by the Rhode Island Family Court which only required that the court find that it was fair and equitable and that it was also freely and voluntarily entered into by the parties. 

John and Sheila would soon find out that the importance of a divorce settlement agreement relies on the words used and that it needs to address things that could and/or should happen while parties are waiting for the house to sell, including the obligations of each party.  Regrettably, John and Sheila would end up learning that when it comes to settling a divorce and putting together a divorce settlement agreement that the "devil is in the details" and that the details matter greatly.   

Their divorce agreement provided, in pertinent part, the following:

1.  The parties were each responsible for the debts in their own name.

2.  The parties' home was to be sold as soon as possible.

3.  The parties were each to be responsible on a 50/50 basis for any repairs and improvements for the home that were reasonably necessary for the home's sale.

4.   On the sale of the home, John was to receive 30% of the net proceeds and Sheila was to receive 70% of the net proceeds.

Four years later, the house sold.  However, Sheila had not kept the home on the market the entire time.

At the closing, Sheila claimed she was to receive $117,000 at the time of the closing and John was only to receive $26,000.  The numbers didn't add up and John wouldn't agree to that distribution so the closing attorney was forced to hold the funds until the matter was resolved by the parties or the court.

Sheila claimed that she paid for a bunch of improvements and repairs over the past four years that John had not contributed to and she was due a credit for half of all those improvements and repairs.  John knew nothing about any improvements or repairs and was never consulted about them.  Sheila also claimed that she was due a credit for all the mortgage payments she had made over the past four years because those payments protected the equity in the home. Sheila also claimed that one of John's creditors put a lien on the house because he didn't pay one of his debts so she had to refinance in order to pay off the lien so the house wouldn't be lost to a judicial sale. John was not aware of any lien on the house.

John asked Sheila for the bills and invoices showing the cost of the repairs and improvements for the house as well as the lien and the refinance documents and refinance amount.  Sheila was not willing to provide the requested documents.

The parties must now to court to have the court determine who was entitled to what portion of the proceeds from the sale of their home by trying to enforce their divorce agreement.  

The court has the power to interpret a divorce settlement agreement but it may not modify such an agreement.  Therefore, the court must enforce the agreement as it is written, except that it may be required to fashion a remedy where the agreement is silent on the particular issue between the parties.

Unfortunately, the divorce agreement creates legal issues for both parties because it is silent on too many issues here.  Specifically, the agreement did not address any of the following, namely:

1.  Loans taken out against a home's equity prior to sale of the home;

2.  Liens recorded against the home pending sale and unilateral payoff of a lien by one party;

3.  What constitutes an improvement or a repair to the home;

4.  How improvements and repairs are determined to be "reasonably necessary";

5.  Whether one party may unilaterally make improvements and repairs to the home;

6. Who was required to pay the mortgage, taxes, and insurance costs to maintain the home;

7. Whether a person paying any of the mortgage, taxes, insurance costs for the home pending its sale is entitled to any credit or reimbursement for any such payments;

8.  Whether either party is entitled to receive credits against the others percentage of the net proceeds if the percentage of proceeds are stated specifically but no credits are allowed for in the agreement.

9.  What is a party's remedy for a breach of a provision of the agreement?

These are only a few of the myriad of issues created by a short handwritten agreement by one of the parties which failed to address things that divorce lawyers commonly anticipate and include in the agreements in advance so that there is little or no question as to what is to happen if these circumstances arise. 

The agreement itself is perhaps the most delicate and important part of the resolution of a divorce because the vast majority of the time it is the contractual provisions contained in your divorce agreement that the court is asked to read, interpret and enforce.  If the agreement and the terms are clear, there is little or no argument to be had and the proceeding before the court, if any, is often shortlived because the agreement addressed the issue and the only obligation of the court is to enforce it as written.

The details of a divorce agreement (aka Property Settlement or Marital Settlement Agreement) are the lifeblood that prevent issues in the future.  John and Sheila have most likely learned a valuable lesson.  Specifically, it is worth having an experienced divorce lawyer draft a proper divorce agreement to anticipate future events and put them in the agreement.  If you fail to do so, you are very likely going to spend considerably more money than the divorce attorneys fee later in order to return to court and argue against a poorly written agreement and then take your chances on the outcome. 

Discover why calculating Rhode Island Child Support is more complicated than you think!

Child support

When a parent finds out that he or she is going to have to pay child support, the parent usually just wants a straight answer to the two questions below without any hassle or fuss. 

1.  How much will I have to pay?

2.  How often will I have to pay it? 

Many people think child support is both simple and easy to calculate.  In most cases, this is not true. 

I will give you a quick idea of why seeking out an experienced divorce and/or family law lawyer in Rhode Island is crucial to understanding how Rhode Island child support works and determining what the right amount of your child support obligation will be.

The second question is easier to answer than the first to answer and so I will address it first. 

2.  How often will you have to pay your child support?  Unless otherwise ordered by the court, child support is to be garnished from your paycheck according to the Administrative Orders of the Court.  Therefore, you typically have to pay it with each paycheck.  Therefore, if you are paid weekly then it would be taken out of your paycheck weekly.  If you are paid bi-weekly, then child support would be calculated for the amount of a bi-weekly payment and the bi-weekly amount would come out of your check. 

Moving on to the first question, "How much will I have to pay in child support?"  The answer is dependent upon the circumstances of each case yet even in the simpler cases it may require various disclosures of information in order to do the calculations and, frankly, sometimes the parties do not want to disclose the information necessary for a proper computation because they consider it personal to them or otherwise invasive.

Rhode Island has adopted federal guidelines.  These guidelines have been expanded by Administrative Orders issued by the Rhode Island Family Court.

Rhode Island Guidelines are based upon our state's Child Support Guidelines and one or more Child Support Guidelines Worksheets generated by the parties or the court depending upon whether the parties are represented by counsel or are acting as their own attorneys.   

        This not, nor is it intended to be, a full and comprehensive analysis of all the factors that can and should be factored into proper Rhode Island Child Support calculation.  Such an analysis would take far longer than the time available for a single article.

    However, this glimpse into the process should give you an idea as to why it is more complicated than you may think and why you should have an experienced divorce and/or family law attorney to assist you in calculating child support to avoid overpayment or underpayment depending upon which party you may be. 

  • GROSS INCOMES -  In order to calculate child support, the gross income of each of the parents of the minor children must be disclosed.   If one or both parties are fully or partially self-employed then sometimes the gross income must be proven if the amount of a parties' gross income is challenged by the other parent as being underestimated or misrepresented.  This may require the production of paystubs, employer payroll records, business records (if self-employed) or bank statements.
  • WORK-RELATED CHILDCARE EXPENSES - Once the gross income of each of the parents is determined, each parent receives a deduction from their gross income for their percentage of the work-related childcare expenses that are reasonably necessary for either or both parties to earn the income that is supporting the children after deducting the Federal Childcare Tax Credit that the parent with physical custody of the children receives.

    For example, if the total work-related childcare expenses for the year are $7,800 and the custodial parent got a $4,000 Federal Childcare Tax Credit then the remaining $3,800 would be the amount the deduction applies to.  If the non-custodial parent makes 70% of the combined income of the parties and the non-custodial parent makes 30% of the combined income of the parties then the non-custodial parent receives a deduction from gross income of 70% of $3,800.  The custodial parent receives a deduction from gross income of 30% of the $3,800.  The proper calculation requires the disclosure of the total actual childcare costs as well as the federal income tax return of the custodial parent to verify and/or confirm the Federal Childcare Tax Credit.
    However, the work-related childcare expense deduction from each party's gross income is limited to the amount of work-related childcare expenses over and above the amount of the Federal Childcare Income Tax Credit the custodial parent receives on their Federal Income Tax Return for that child(ren). Therefore, the federal income tax return of the custodial parent should be disclosed to determine how much of a deduction the custodial parent received (or could have received) for the minor children on their taxes. If this is not done, the child support amount becomes skewed and overly inflated against the non-custodial parent who may end up paying more child support needlessly.

  • PRE-EXISTING CHILD SUPPORT PAYMENTS - If a party already has any pre-existing court orders of child support for other children, then generally he or she is allowed a deduction for the amount of that child support ordered it if is being paid.  However, the Rhode Island Family Court judge may have the power in his or her discretion to disallow all or part of the pre-existing child support order deduction from the party's gross income if the parent is not paying the order or is only partially paying the order.  If the party is not paying the order at all, he or she may well not receive any deduction.  If he or she is paying only a part of the order, then he or she is likely to receive only a deduction for that part of the order that was actually paid.  Therefore, proof of the order, as well as the amount paid toward the order, may be required in order to justify the payor receiving the deduction against the gross income.
  • HEALTH INSURANCE DEDUCTION - Additionally, if a party pays out-of-pocket to cover the children on his or her health insurance, then that party is also allowed a deduction from his or her gross income solely for the amount of the insurance premiums that he or she pays for the minor children. Once again the amount of the health insurance that is specifically paid and attributable to the coverage for the minor children must be disclosed (and in many instances proven if the other party objects to the amount of the deduction or whether it actually relates solely to the children for whom child support is being calculated) in order to receive this deduction against gross income.

  • ADDITIONAL MINOR CHILDREN - If either party has additional minor children, then he or she is allowed a deduction from his or her gross income for that minor child(ren) up to a maximum of 50% of the child support that would be paid for the minor child(ren) if a child support order had been generated by the court. However, to properly calculate this credit the income of both natural parents or legal guardians of each additional minor child needs to be disclosed (and in many instances proven if the opposing party objects to the amount of the deduction) as well as the childcare expenses, if applicable, and the custodial parent's federal income tax return to verify the Federal Childcare Income Tax Credit. Even though an additional child support guideline worksheet is not required to be submitted to the court for approval, it should be created by the parties and/or their attorneys to ensure the deduction for any additional minor children is accurate.

    If there is no court order for either party’s additional minor children and the party seeking the deduction for the additional minor child is not living with the children, the deduction for the additional minor children may not be allowed as there may be no evidence of support for the additional minor children and absent evidence that the additional minor children are being supported by the party (or agreement between the parties that the party may have the deduction), the deduction need not be given.

This is just a partial example of how Rhode Island Child Support is calculated. I have not included the computations for a Cash Medical Contribution which may be required if the minor children are on state assistance, nor have I included any of the optional deductions that could apply in the discretion of the court, including pension or retirement payments, life insurance premium payments, parent’s extraordinary medical expenses, income tax exemptions/deductions or payments of assigned marital debts in divorce cases.

It should be noted that Rhode Island Child Support is all subject to the approval of the Rhode Island Family Court judge presiding over your case and that it is set up as the “minimum standard” for child support to be used by the court. However, the family court justice has the discretion to increase or decrease this child support based upon findings of fact that warrant a modification upward or downward.

This example deals with less than half of the situations and factors that may occur in child support cases in Rhode Island.  This article does not deal with incarceration of one of the parties, social security disability payments, supplemental security income payments, imputed income to a parent who is not working, shared placement situations, common self-employment issues relating to gross versus net income, the self-support minimum allowable to child support payors, or federal laws relating to the maximum amount that may be garnished by an employer.

You should be able to tell from this small excerpt that child support can easily morph into a complex calculation that without the help of an experienced Rhode Island divorce or family law lawyer could leave a custodial parent overpaying child support in the long term.  In the converse, an improper calculation could leave the custodial parent being underpaid in the long term.

Lastly, in my humble opinion, you should never rely upon an online calculator to determine child support accurately.  The guidelines change, the forms used for calculating child support also change, and new Administrative Orders issue that may change child support calculations. 

Chances are the programmer of an online calculator for child support was not a Rhode Island family law attorney.  Therefore, you have no idea if the programmer of the website (who is very likely not a lawyer at all) got the calculations correct or not or whether or not factors have been left out.  You also don't know if a lawyer actually tested the programmed calculator to make sure that each variation of calculation (i.e. every different fact scenario) yielded the correct result.  Since this would require a lawyer to do each calculation manually, it is unlikely that a lawyer would take such a substantial amount of time to do so.

Can you use a Keylogger to uncover a spouse's infidelity or hidden assets?

Keyboard-70506_640You and your spouse may be headed for divorce. Your spouse is on the computer frequently but shuts off the computer or the monitor whenever you come near. You become concerned that your spouse may be having an affair or may hide marital assets. Your spouse hasn't provided you with the websites he/she visits or his/her login information for any sites or their email.  You mention this to a friend who asks if you have considered using a keylogger.

A keylogger is a small computer program or app that is often installed on a computer (though as of this writing their are keyloggers for smartphones) that records every keystroke made by the users of the computer and stores that recording in a file on the computer. Many keyloggers also take periodic snapshots of the user's computer screen every few minutes.  Quite a few keyloggers then email the file with recorded keystrokes and the snapshots of the computer screen to you without anyone's knowledge.  The question remains whether you can use keyloggers to conduct surveillance on your spouse.

There is no specific RI Supreme Court case law addressing this answer from a divorce perspective.  Yet there are several considerations regarding existing law that should be made and lead me to my own conclusion.

The existing law considerations for using a keylogger on a computer to conduct surveillance on your spouse relate to the Federal Wiretapping Act (FWA), the Rhode Island Wire Tapping Act (RIWA), the federal Stored Communications Act (SCA) as well as laws relating to the violation of a person's right to privacy.

Though I have reviewed each of the Acts above, the Federal Wiretapping Act (FWA), when broken down into its component parts is the most detailed as it relates to private individuals and electronic communications, and provides, that the FWA with limited exceptions prohibits individuals from;

1) intentionally intercepting any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

2) intentionally endeavoring to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

3) intentionally procuring another person to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

4) intentionally procuring another person to endeavor to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications.

5) intentionally disclosing to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.  (namely, 19 USC § 2511(1) - the prohibitions subsection).

6) intentionally endeavoring to disclose to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

7) intentionally uses the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection. (namely, 19 USC § 2511(1) - the prohibitions subsection).

8) intentionally endeavors to use the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

The criminal punishment for violation of this Act is to be fined pursuant to the FWA and/or imprisoned for a period of not more than five (5) years. The FWA also provides that a person whose electronic communications are intercepted in violation of the FWA may proceed with a civil action for injunctive relief, civil and punitive damages, attorneys fees and costs.

These are the summarized provisions only for the FWA.  This is fairly restrictive and the definitions are very exacting.  The RIWA had the power to make narrower restrictions than the FWA.  Yet an analysis of the RIWA here is not truly necessary in my humble opinion given the extensive federal prohibitions. The only issue that arose in my analysis was whether a keylogger "intercepts" a transmission that passes through a wire related to interstate commerce.

In reviewing this particular aspect and analysis of the FWA as it related to keyloggers, I found a very persuasive though not legally controlling case heard in the Kent County Superior Court in the State of Rhode Island in the case of Williams v. Stoddard Case Number P2012-3664.  Based on the analysis in Williams regarding the violation of the FWA, RIWA, and the SCA when a wife used a keylogger to obtain her husband's login credentials and accounts and then accessed those accounts to get information for her divorce and for use against her husband's employer the North Kingstown Police Department.  The Court found in that case that the wife did, in fact, violate the FWA and the RIWA by her use of the keylogger and did, in fact "intercept" the communication using the keylogger and the subsequent disclosure of the contents of the information to her husband's employer.  The RI Superior Court also found that the wife was subject to a lawsuit for compensatory and punitive damages as a result of her violation of the FWA and her spouse's right to privacy. 

In Williams no distinction was made either by the court or by the parties as to (1) who owned the computer, or (2) whether the wife had the right to access or use the computer upon which the keylogger was installed, or (3) whether the computer was consistently connected to the .  Whether this was an oversight or a non-issue as it related to the analysis by the parties or the court is unclear.  However, the analysis in the case is consistent with the language of the FWA and the rule of statutory interpretation that the court in arriving at the meaning of a statute is to, if at all possible, give efficacy and meaning to a statute based upon its intent.

Ultimately, it is my conclusion based on the current language of the FWA and the persuasive case law combined with a review of the language of the RIWA and the SCA that the use of a keylogger to conduct surveillance on your spouse on any computer constitutes the unlawful interception of electronic communications in violation of, in the least, the FWA and very likely the RIWA and thus is illegal and subjects persons using keyloggers or having others use keyloggers for them of being charged criminally and subjects the person to criminal fines, penalties and/or incarceration.

When in doubt, use legal means to conduct your surveillance or obtain the information necessary for your divorce case and consult an experienced attorney as to whether the manner you want to use to obtain information on your spouse is legal before attempting to use it.



How do I start a Rhode Island divorce proceeding?

Divorce_womanQUESTION:  How do I start a Rhode Island Divorce?

ANSWER:  First, let me say that personally and professionally that with what I have learned in almost two decades practicing divorce in Rhode Island, I do not recommend filing or putting through your own divorce. In the very least, you should get legal coaching/advice from a lawyer who regularly practices Rhode Island divorce before you fill out and file the paperwork.  Every divorce is not the same, no matter how simple you may think it is.  The court clerk's office will provide you fill in the blank forms and they may give you samples of how other family court litigants might fill them out.  They may even give you general questions to give you an idea of what a judge might be interested in knowing at the time of your divorce hearing.  However, every (and I do mean "every") divorce is different and no form is a substitute for legal advice. The forms provided by the courts are intended to follow the minimal guidelines provided by law.  They are not intended to protect your rights nor should you expect to receive instructions on what to fill in to make sure your rights are protected.  It is the obligation of each person or their attorney to protect your rights by filling in the form or even by modifying the form if necessary with the correct legal terms so that your rights are properly protected.

To start a divorce proceeding you need to get what I call a "divorce filing packet" from the Rhode Island family court.  You can get the documents that comprise this packet at the domestic clerk's office. This packet consists of the following documents.

1.  Civil Case Cover Sheet;

2.  Complaint for Divorce/Complaint for Divorce from Bed and Board;

3.  Statement Listing Children;

4.  DR-6 Financial Statement of Assets, Liabilities, Income, and Expenses; and

5.  Four (4) Language Notices - English, Portuguese, Spanish, and Cambodian

To start your divorce, you fill out the foregoing documents and file them with the Domestic Relations Clerk's Office in the Rhode Island family court in the county where the Defendant resides within the state. If the Defendant does not reside in Rhode Island, then you file in the family court in the county where you reside, provided you have been a resident and continuously domiciled inhabitant of the State of Rhode Island for at least one year before you file.

When these documents are filed correctly with the family court you will pay a mandatory court filing fee which may include a technology surcharge which currently amounts to $145.32 as of March 11, 2019.

Upon filing, you must check back with the court to find out if your filing has been accepted.  Once accepted, the court generates a Summons with Proof of Service and Notice of Automatic Orders.  You then must arrange to make proper due process service on the Defendant pursuant to Rhode Island law and the Rhode Island Rules of Domestic Relations Procedure. Service requirements vary depending upon whether the defendant is within Rhode Island, in another state, in another country or in the military.

Generally speaking, this is how a divorce proceeding or a legal separation proceeding is started in Rhode Island as of March 11, 2019.