Visitation Feed

Rhode Island is the Children's Home State. Can the Custodian Parent Move out Of State for a Job?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

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

Google+ Author Profile

Publisher on Google+

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!


Repatriation Counseling - Understanding An Old Concept under a Newer Name

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

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

Google+ Author Profile

Publisher on Google+

Recently in a case I filed a Motion for Repatriation Counseling.  This is a concept I've been familiar with for several years not by virtue of my own reading but by my associations with mental health counselors and therapists.  

In my particular case I learned that the terminology I used was not necessarily "mainstream."  

Though I have been referring to "repatriation counseling" for years it is not known by that name by many therapists, attorneys and judges.

Personally while I was puzzled and a bit disappointed that the court denied my client's motion simply because it looked up the word "repatriation" and found that in Webster's Dictionary the word means "returning or sending one back to one's own country."  Since that definition of "repatriation" wasn't consistent with the more modern meaning as I've known it to be in therapeutic settings the motion fell flat before the court.  I was, in actuality surprised that that court had not heard of "repatriation counseling" between a parent and child.  However, I later discovered that several counselors I knew were not familiar with the concept while others were not.

Repatriation Counseling typically has been counseling for men and women who have returned to their own home country either after having been prisoners of war or having been detained in another country, etc.. but these individuals have needed counseling to be reassociated with their wives and children and vice versa.

However, in more recent years repatriation has been become associated in modern circles specifically with the reunification of a parent and child (and sometimes children) of younger years who have either become alienated or estranged from one another for one reason or another.

In Rhode Island DCYF Motions have Frequently contained the word Repatriation in their motions and yet the concept still remains outside the mainstream because of the older traditional definition of "repatriation."

So, for the time being though the term "Repatriation Counseling" continues to grow as an alternative term for parent-child reunification counseling, I would recommend that people filing motions to reunite a parent and a child (or children) use the word "reunification" instead of "repatriation."  Trust me, it could save you some grief. 

 


Can I Adjust the Father's Visitation in Rhode Island without going to Family Court?

QUESTION: 

What can be done about having my son's fathers visitation getting adjusted? My son stays with his father every weekend.  The father lives with a family member because he does not have a place of his own. Not long ago our son slept over and the father's mother tried to kill herself.  Police responded.  My son saw something that I think he shouldn't have.

I'm afraid our son's father is not going to act civilly when I tell him that our son will not be spending the weekends there anymore. There are numerous people who live at that same place including his mother, several other teenagers and another husband and wife in the family.  Of the four adults that live in that house I believe two of them drink constantly and abuse prescription drugs. I just need some advise on how to go about this without having to go back to court.

I cannot afford a lawyer right now, but I want my son to feel safe and I don't think he is safe in that kind of environment. Any help would be appreciated.

 ANSWER:

You're trying to do something without going to court?  Then you make my job 10-fold more difficult because legal rights are maintained and enforced in the court system.  Therefore, I am going to answer your question including court remedies because that is how (in my humble opinion) things could and should be handled.

You can file a Motion to Modify or Terminate Visitation in the Family Court. I understand that you don't want to return to court but if the child's father has court ordered visitation then you must return to court to modify it. You can't simply decide to change the visitation unilaterally.  If you do, you are likely to be in Willful Contempt of Court for violating the Family Court's visitation orders for the father.

While I am not unsympathetic since I am an advocate for children, you mentioned quite a few things here. Yet more information would be helpful.

Based upon what I have to work with, here are the questions that I believe would be most relevant under the circumstances,

(1) What is the age of the child?

(2) What did the child actually witness?  Suicide attempt?  Police responding?

(3) Did the father have time to prevent the child from seeing the detrimental things or protect the child in any way?

(4) Was the father forced to deal with his mother's suicide attempt?

(5)  When the child came back to you how did he react and what did he say and did it indicate to you that he was traumatized?

Remember that the visitation is between the father and the son. Even if the father lives in the same household as his mother, if the father could not prevent or and did not have time to prevent the son from seeing his mother's suicide attempt then there may not be a basis for asking the court to reduce the overnights.  This man may have had to balance between addressing the emergency of his mother's life versus protecting his son from any trauma it was causing.  Remember that very few of us know when someone else is going to to anything, let alone make a suicide attempt.

If the visitation every weekend has occurred while you were supposedly aware about everything else (except the suicide attempt) then you acquiesced to the rest of the conduct. To bring it up at a later date to prevent overnight visits may not be viewed by the court as a reasonably substantial change in circumstances warranting a change in visitation.  Even a reasonable person would just say that it's a bit late to be bringing it up now.  It is more like icing on the cake to make your case stronger.  

Now, if the visitation for the father is not spelled out in a court order and you are the placement parent by a court order, then you normally have the right to talk to the father and let him know that his overnights need to stop for a while for the benefit of the child. Keep in mind that if the child has a good bond with his father, then you do not want to damage that bond just as the father should not be damaging your bond with your son in any way, especially if it relates to the conduct of a third-party.

As for avoiding court, it can't be done if it is to be done properly. If the visitation is spelled out in a court order you should file a Motion in court as I have suggested to modify visitation alleging that there is a substantial change in circumstances that warrants the modification (the legal standard to support such a motion). You should, however, spell out the circumstances in your motion that constitute the "substantial change in circumstances."

The court if very likely to want the answers to the same questions I'm wondering about at the time you go to a hearing unless you and the child's father enter into an order by a agreement (called a "Consent Order") which is acceptable to the Judge and approved by the Family Court.

Even if you make a verbal or written agreement with the father about the visitation for the child then it is only good as long as the people agreeing too it are willing to abide by it.  Even if it is in writing and signed by both of you, unless it is in court and signed by a judge it isn't enforceable and therefore isn't worth the paper it's written upon.  This is why doing things without returning to court really doesn't accomplish much in the way of security for anyone, especially the child.

 My Very Best to You in Addressing Your Family Law Issues,
Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach."®

 Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advise session to make sure you know your rights.


Rhode Island Family Law Attorney - Visitation Basics

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"™ 


Rhode Island Divorce - Child Support does not Pay for Visitation

As a Rhode Island lawyer focusing my practice in the areas of divorce and family law, there is something I hear quite frequently from fathers who are seeking representation for their Rhode Island child support issues.  It can be summed up in one statement that I hear repeated often,

"I shouldn't have to pay all this child support to her when I don't even get my visitation."

Child support and visitation for Rhode Island fathers are separate and distinct issues.  When you pay child support as the father of a child you are paying what the Rhode Island family court has deemed is your fair share for the needs of your child.  These things include food, clothing, shelter, childcare, medical needs, basic necessities, etc.

Fathers need to understand that regardless of whether they get their visitation or not through the mother of the child, that you are not paying for visitation.  The two issues are separate and distinct.

Child support is not something that a father may, or should, withhold simply because he is not getting his visitation.  While it is logically understandable from a father's point of view because it may be the only "leverage" the father can think of to create compliance with his visitation rights, it can have drastic consequences.

A father who withholds court-ordered child support in order to force his wife, ex-spouse or the mother of his child(ren) to comply with visitation, may quickly find that he is found in contempt by the court and held at the ACI until he complies with the court's order.

If the mother of your child(ren) is not complying with a visitation order, it is never advisable to withhold child support.  A father who is denied his court-ordered visitation is, generally speaking, better off filing a Motion to Adjudge the mother in contempt for denial of his visitation rights.

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