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 Lawyer

Important Note: As a Rhode Island lawyer I am limited to answering your question only as it relates to Rhode Island Divorce and family law situations. Other jurisdictions may vary slightly or greatly from this standard.

Rhode Island and Guardian Ad Litems

When a Guardian Ad Litem is appointed in a case, typically they are appointed to protect the best interests of a minor child (or children), although in rare cases a Guardian Ad Litem may be appointed to represent the interests of an a party in a proceeding who has demonstrated a decreased capacity to understand or appreciate the nature of the proceedings and the ramifications that might occur.

For instance, I am aware of one case many years ago where a Guardian Ad Litem was appointed by a family court judge in a divorce proceeding in which one of the parties could not quite comprehend how the divorce worked and the repercussions of certain decisions that had to be made because the party was not in touch with reality and frequently took advice from a little man that sat (invisibly I might add) on the party’s right shoulder. The party would routinely consult the little man in the middle of court proceedings causing great confusion and frustration for both the lawyers and the court. In that case the court had to consider appointing a Guardian Ad Litem for the adult rather than a child, to make sure that the interests of the adult were reasonably protected in the adult’s best interests. This became the role of the Guardian Ad Litem. The recommendations were to evaluate settlement offers and determine whether they should be accepted or rejected and what needed to be produced in the way of documentation and/or answers to questions as the divorce litigation proceeded and whether the adult understood the nature and consequences of the proceedings.

The recommendations could relate to any number of things based upon what the court’s directives are to the Guardian Ad Litem.

When it is a minor child or children involved the recommendations are typically regarding which parent may be the most important parent to have physical placement of a child (in the child’s best interests) based on the legal requirements the Court itself would often consider under the prevailing law in the state. For instance, in Rhode Island the seminal case is Petinnato v. Petinnato, 582 A2d 909 (RI 1990) which originally set forth eight (8) factors the Rhode Island family court judge presiding over the case (and consequently a Guardian Ad Litem) must consider regarding the best interests of a minor child.

Typically, the recommendations of the Guardian Ad Litem may relate to who the parent who should have primary placement of a minor child or children should be, whether there should be joint physical placement where each parent spends equal time with both parents, what parenting time a non-placement parent should receive and under what conditions, whether counseling is recommended for the minor child or children or one or both parents.

What is important to know is that recommendations of the Guardian Ad Litem are just that … recommendations. The judge may certainly taken them into consideration but the judge is not required to abide by those recommendations nor is the judge required to accept any factual findings the Guardian Ad Litem may make as a result of his or her investigation to arrive at his or her recommendations.

In other words, the recommendations of the Guardian Ad Litem do not bind the judge. They are merely to help the court and they are for the judge’s consideration only. However, it is worth mentioning that if the Guardian Ad Litem is well-known and trusted by the judge because he or she is thorough, is well-known to the court as doing a good job evaluating prior cases that may have been assigned to the Guardian Ad Litem, then the court is likely to give great weight to the Guardian’s recommendations. An opposing party has the right to challenge the Guardian’s findings and recommendations in court. However, if this is a long standing Guardian used by the court and in which the court has confidence, this may be an uphill battle for any person attempting to challenge the Guardian Ad Litem’s recommendations.  However, if the Guardian's recommendations are contrary to your legal rights as a parent or deprive you of fundamental time in your wife and your child's life then you may want to challenge them.

What is most important to remember is that the Guardian Ad Litems’ recommendations do not bind the judge at all and the judge may reject them in whole or in part if the court disagrees with the findings or finds the investigation to be less than thorough.

Atty Chris Pearsall

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

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Question:   In the state of rhode island what is a de facto parent and what are their rights?

Answer:  This is a factually driven question in each case and results from a determination of the Rhode Island Family Court judge.

In essence a "de factor parent" is a person who stands in the position of a parent based upon an interested person's interaction and relationship with the child.  For instance, due to the relationship and interactions between an adult and a child the court may determine that a person is a "de facto parent" be he or she a mother or a father.

In Rhode Island the right of an interested person to make such a claim is basically set forth in R.I. Gen. Laws §15-8-26 which states,

"Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. The provisions of this chapter applicable to the father and child relationship shall apply as far as practicable." (Current through Public Law 534 of the 2013 Legislative Session)

Typically that interaction must be long term and the interested person must have acted in the same or a substantially similar role as a parent would to the child on a regular and consistent basis. Yet this is merely a guideline. Each set of circumstances is based upon the specific facts of each case. While you might like a "list" of rights if a "de facto" parent relationship is determined, there is no such list.

To give you a better idea of how factually driven cases are, I recommend that you read the case of Rubano v. DiCenzo found at http://www.courts.ri.gov/Courts/SupremeCourt/OpinionsOrders/pdf-files/97-604.pdf in order to understand the complex interrelationship between facts, law, and court decisions.

Many people would like cut and dry answers with respect to their questions, yet there often isn't one that can be universally applied because the law in many cases cannot anticipate all the different factors and situations that can occur in life.  Facts always have a role to play in each case and when those facts are extracted, general answers don't usually exist.  Depending upon the facts of the relationship, the nature of the parties, the mental state of the child, and many other factors, there is nothing to prevent the court from expanding or limiting the role and/or consequently the rights of a de facto parent in each case. 

In some cases a person might think they are a "de facto parent" but the family court justice might disagree.  I recommend reading Rubano v. Dicenzo the case cited and you will understand much better what I mean. In the meantime, depending upon your situation, you might want to take the time to present that facts to an experienced family lawyer to get a better bead on the actual facts in your case and how they might be applied by a judge as well as what you are expecting or hoping for.

Visitation is a rather straightforward concept. It is the right of a non-placement parent to spend time with his or her children.

Visitation may be supervised or unsupervised.

The vast majority of visitation is unsupervised.  This generally occurs in one of three ways. 

1) The parent who will be visiting with the child or children picks the child or children up from the placement parent's home at a designated date and/or time and then returns them to the placement parents' home again at a designated date and/or time.

2) The placement parent drops off the child or children at the visiting parent's home at a designated time and later returns and picks the child or children up at a designated date and time.

3) Both parents meet at a neutral, usually public, agreed upon location to exchange the child/children for their visitation and agree to return to that location or another suitable neutral public location to exchange the children for their return to the placement parent's house.

Supervised visitation generally occurs in one of two ways.

1) Supervised visitation is ordered by the court usually at a specified periodic interval (such as weekly or bi-weekly) and is set up through the Family Services Division and monitored by one of it's members.

2) Supervised visitation is ordered by the court at a periodic interval and sometimes a specific location. The supervision is usually performed by a family member or a third-party who has agreed to monitor the visitation and report to the court.

A partially misunderstood concept is that "placement" and "visitation" are contradictory concepts. However, in actuality that is not the case. If this section seems at all confusing, re-read the section of this website on "Placement". This may help you with a better understanding of the presentation of the idea that "placement" and "visitation" are only different in time spans.

Consider this example from a Final Judgment of Divorce.

"7.  Plaintiff, Mother is awarded placement of the Minor Child, Nathan (DOB 12/1/95)."

"8. Defendant, Father shall have visitation with the minor child on Mondays, Wednesdays and Fridays from 3 p.m. to 7 p.m. and every other weekend from Friday at 3 p.m. to Sunday at 7 p.m."

For many purposes placement and visitation are the same.

Placement is the right of the placement parent to physically have possession of the minor child the majority of the time. 

Visitation is the right of the non-placement parent to physically have possession of the minor child on the specified dates and times as set forth in the court's orders or judgments.

As you can see the concept is very similar. Both concepts involve the right of a parent to have physical possession of the minor child on specified dates and times.

However, it would be incorrect to make the mistake that Placement and Visitation are identical for ALL purposes. There are three typical differences between Placement and Visitation.

1)  Placement involves the right of the placement parent to maintain what is viewed by the court as the child's "home".

2)  Placement carries with it the common view that that placement parent is the "primary caregiver" for the minor child.

3) Since the placement parent is viewed as the primary caregiver and presumably provides the majority of the child's care and needs, the placement parent is typically awarded child support from the non-placement parent.

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