Rhode Island Divorce Tips

A relocation case in the Rhode Island family court typically occurs when one parent who either has primary physical placement or joint physical placement of one or more minor children wants to relocate with that minor child outside the state.

Relocation cases are very often opposed and a fair number of them go to trial unless you can reach an agreement or accommodation with the non-relocating parent as to how and when they will have visitation or parenting time with the minor child or children and how transportation might be arranged, etc..  In joint physical placement cases where each parent has the minor child or children 50% of the time, if the relocation is a significant distance such that their can no longer be joint physical placement, then often times a trial is inevitable.

During a trial both sides present evidence regarding the children, the family, schooling, relationships, etc.. that typically fall into the factors set forth by the RI Supreme Court in Dupre v. Dupre, 857 A.2d 242, 257-60 (R.I. 2004) that judges must consider in relocation cases.

The relocation factors judges must consider are as follows:

1.  The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent.

2.  The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.

3.  The probable impact that the relocation will have on the child's physical, educational and emotional development. Any special needs of the child should also be taken into account in considering this factor.

4.  The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements considering the logistics and financial circumstances of the parties.

5.  The existence of extended family or other support systems available to the child in both locations.

6.  Each parent's reasons for seeking or opposing the relocation.

7.  In cases of international relocation, the question of whether the country to which the child is to be relocated is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction will be an important consideration.

8.  To the extent that they may be relevant to the relocation inquiry, the Pettinato factors ^[1] will also be significant. 

Typically relocation cannot be for a frivolous purpose or to deprive the other parent of their placement or visitation rights.  Ultimately the court will look so see where, how and why the relocation is taking place and what its anticipated affect is on the child and parents as well as extended family relationships and support systems.

Since relocation almost invariably relates to the best interests of the minor child, the parent seeking to relocate and the non-relocating parent should also consider and present evidence to the court how the relocation will affect the best interests of the child as set forth in Pettinato to the extent that the Dupre relocation factors do not already address those best interests.

[1] Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) (Sets forth for the seven (7) though non-exhaustive list of factors that must be weighed when determining the best interests of the minor child.)

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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Atty Chris Pearsall

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!