RI Child Custody

A Rhode Island child custody attorney sets forth 12 important divorce and custody tips to help clients navigate through the complex process of Providence Family Court.

Important Family Court tips:

1. Never make negative or disparaging remarks about the other parent in front of the minor child or children. Never allow third parties to make negative or disparaging comments about the other parent or their family in front of the children. These negative remarks can be very harmful to a child and the minor child’s relationship with the other parent.
2. Win your Rhode Island child custody case in the courtroom. Do not try to prevail in the case on twitter, Instagram or Facebook. Social media commentary concerning your custody cause of action or concerning the other parent can be very damaging to your Providence Family Court custody battle.
3. Do not use any drugs during the child custody litigation. You are always subject to a drug test in RI family Court. Drug use can cause you to lose custody of your child or cause your visitation to be supervised.
4. In your divorce, child custody, child visitation or family law case always treat court personnel, court clerks, sheriffs, court investigators with great respect and dignity. If you act disrespectful to court employees, the judge will usually find out about it and will have a negative perception of you.
5. Dress appropriately for your day in Rhode Island Family Court. Do not overdress because it makes you look like you are fake and trying too hard. Dress business casual. Cover over all tattoos if possible.
6. Always speak about what is best for your children, not what is best for you. The legal standard for child custody in Rhode Island is the “best interest of the child.”
7. Always agree to try mediation. It is crucial that the judge believes you are attempting to settle the matter before the judge uses valuable court resources to decide your cause of action. Send a message to the judge that you are part of a potential solution and not part of the problem.
8. Never interrupt the judge while the judge is speaking. Interrupting the justice is rude and disrespectful. Also, do not interrupt the other party when they are speaking.
9. Do not exaggerate and lose credibility with the judge. If the Providence Family Court Judge or Magistrate does not believe what you are selling, then you have some real problems
10. It is a bad idea to represent yourself in Providence Family court without the assistance of a Rhode Island divorce lawyer or a Rhode Island child custody attorney. Litigants who represent themsleves are called “pro se.” If you don’t know what you are doing, you can easily make a mistake.
11. Do not videotape your child or record your child in any way related to the Family law case. Judges do not like this.
12.  If your circumstances change substantially, do not wait to file a motion to modify child custody or modify child support. Child support modifications do not modify retroactively.  Support orders can only be modified retroactively after a motion has been filed with the Providence Family Court and after the other parent has been served with the summons.

Is there a particular age when a child in Rhode Island can decide which parent the minor child wants to reside with, in a RI child custody, post divorce or divorce? A Rhode Island child custody attorney discusses the important issue of when a child’s preference is important in a child custody case in RI.

Child preference in RI child custody

• Can Children Choose Which Parent They Want to Live?
• When Can a Child Choose Which Parent to Live with in Rhode Island?
• At what age can a child decide which parent to live with?

Can a child in Rhode Island decide where they want to live?

• The  legal standard for child custody determinations is the best interest of the child.
• The court can consider, “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”
• The older a child is the more influence the child will have in the determination.

There is no set age under Rhode Island family laws when a minor child can decide to live with their mother or father in a Rhode Island child custody case. In fact, theoretically, the child is not allowed to make that decision.

Older children have a very significant impact on child custody determinations by a Providence RI Family Court Judge or General Magistrate.  In the seminal  RI child custody case of Pettinato v. Pettinato, The RI Supreme Court lists the ‘preference of the child’ as an important factor that the RI Family Court should consider in making a child custody determination.  “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”  82 A.2d 909 (1990) Gregory J. PETTINATO v. Susanne L. PETTINATO 

An older child’s wishes are often respected and followed by a RI Family Court justice. In making a child custody determination, the Providence Court Judge or Magistrate decides the case based on the “best interest of the child.”

Preference of child only one factor in physical placement determination

The preference of the child is only one of the factors that a Providence Family Court Judge may consider in determining the best interest of the child. The Factors a Family Court Judge should use in making a “best interest of the child” determination are set forth in the seminal Rhode Island case of Pettinato v Pettinato, 589 A.2d 909 (R.I. 1990) Please see below for all factors that the Rhode Island Family Court utilizes to determine Child Custody. see Child Custody Law in RI

(If you are in need of a child custody attorney in Rhode Island, contact East Providence child custody lawyer, David Slepkow.)

Older children have greater input into where they will live

If an older child such as a 15, 16 or 17 year-old has a preference and that opinion is expressed to the Judge, Court Investigator or Guardian ad Litem than the judge will usually respect the child’s desire. Of course, there may be countervailing factors which may convince the judge not to respect an older child’s parental preference.

These countervailing factors may include:

• Drug and alcohol abuse by the minor child
• Mental health problems of the child
• Lack of a good relationship with the parent the child wants to live with
• Poor judgment or decision making of the child
• The stability of the child’s home environment and potential instability of the other parent
• Lack of maturity or judgment of the child
• How the child is adjusted to his or her home, school or community.

Exceptions to older children’s influence

There are some exceptions in Newport Family Court or RI family Court to an older child’s decision being the decisive factor. In some cases, despite the child’s advanced age, the child does not know what is in his or her best interest. In some cases the child abuses drugs and alcohol, does poorly in school, misbehaves, has a criminal record or has mental health issues.

Also if the child does not have a good reason for his decision then the judge can deny the child’s request. If the other parent is not a fit and proper person to have placement of the child, then the Judge can deny the request. The judge can deny a child’s request if the parent the child would like to reside with has a drug or alcohol problem, severe mental health condition or a serious criminal record. In some cases, RI Family Court Judges are hesitant to change placement if the child is very immature for her age and has behavioral issues and the child is merely rebelling against the imposition of rules and structure.

Do children have influence over visitation terms in Rhode Island

Children also may be given influence in Child Visitation cases in RI. Children may play a role in the determination of whether visitation should be overnight and the schedule and frequency of the visits. Children may play a role in whether visitation should be supervised or unsupervised and the length of duration of visitation. Children also may be given influence when the parent with physical custody files a motion to relocate out of state.

Practical Tip: If you are aware that your children support your position regarding visitation, custody, placement or relocation out of state then have your children interviewed by the Judge, RI Family Services or a Guardian ad Litem.

Can younger children decide where they want to live?

Children ages 11, 12, 13 & 14 may also be given significant influence over Rhode Island Child Custody, Visitation and Relocation cases.

Do all judges deal with children in the same manner?

Judges in Rhode Island Family Court have different philosophies on how they deal with children. Some judges will not interview children. They will have the Guardian ad litem interview the children. The Guardian ad Litem then will issue a report to the RI Family Court Judge or Magistrate handling the matter.

In Rhode Island (RI), A guardian ad litem is an individual who represents the hypothetical best interest of the minor child in a child custody, visitation or other type of Family Court case. Guardians are frequently used in in contentious custody cases when the parties can afford the additional expense. The judge could make an appointment or the parties can agree to a guardian being appointed.

Guardians do not make final decision

A guardian does not make the final decision as to which parent shall get physical placement or legal custody of the child. The judge makes the final decision regarding custody, visitation and physical placement / possession after hearing testimony at trial or hearing. The guardian drafts a report to submit to the Court with his or her findings and recommendations. see The Role of the Guardian Ad Litem in Family Court in Rhode Island

Judge Interviews of children in chambers

There are some family law judges who will bring the child into chambers for an interview. The Judge will usually bring the court reporter to transcribe the proceedings. Some judges will allow the RI divorce attorneys or Rhode Island child custody lawyers to question the child in chambers in front of the judge.

RI Family Court Practical Tip:

Don’t coach your children. This is unfair to the child and puts unnecessary stress and pressure on the child. Also, the Child will usually tell the Judge or Family services about the coaching. If the Judge believes that you have engaged in coaching, then there may be severe sanctions. The Sanctions may include the judge denying your request for placement, sole custody or relocation.

A child’s preference is not decisive, it may be given weight

The older a child is, the more weight / influence the judge will give to the child’s preferences regarding custody, placement, visitation and relocation out of state. Younger children usually have a greater influence on proving facts rather than making decisions. The child may tell the investigator or Judge that their parent abuses them or if they are afraid of their parent. The child may tell the investigator that the parent makes negative or disparaging comments about a parent in front of the child. The child may make allegations regarding parental alienation.

Children typically do not get to make the decision concerning legal custody. Legal custody pertains to who gets to make decisions concerning religion, education, social development, activities and medical decisions. Legal Custody will either be Sole Custody to one parent or Joint Custody to both parents. Children have no real influence on child support cases .Child Custody matters involving preference of the child may play a role in:

• divorce,
• paternity,
• miscellaneous petitions for custody,
• DCYF,
• motions to modify Custody or placement and
• visitation disputes.

RI Child Custody Factors:

“1. The wishes of the child’s parent or parents regarding the child’s custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to the child’s home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child’s home environment.
7. The moral fitness of the child’s parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.” Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990).”

Can the Court take into account a parent on public assistance as a factor in determining custody?

“In regulating the custody and determining the best interests of children, the fact that a parent is receiving public assistance shall not be a factor in awarding custody.” 15-5-16.1 

“Consequently the rendering of assistance to parents with dependent children is ordained by the public policy of the United States and furthered by the public policy of the State of Rhode Island. Neither the policy of the federal government nor that of the State of Rhode Island would authorize or encourage in any way the penalizing of an otherwise proper parent merely because she is receiving assistance from the AFDC program. We are constrained to hold that the determination by the general master that receipt of such assistance would authorize a change of custody on public-policy grounds constitutes a fundamental error of law.” Sammataro v. Sammataro, 620 A.2d 1253 (1993)

What is the standard of review of a RI child custody determination?

“Our review of this issue is limited to considering whether the general master abused his discretion in granting sole custody of Stephanie to plaintiff. Pettinato v. Pettinato, 582 A.2d 909, 914 (R.I. 1990)” Mattera v. Mattera, 669 A.2d 538 (1996)

Rhode Island divorce attorney, David Slepkow represents clients in the following types of RI family law matters: child support, visitation, paternity and child custody.  David has dozens of 5 star reviews. David is rated a “superb” RI lawyer by AVVO and was voted a top 3 attorney in Rhode Island by the Providence Journal’s readers.

Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers / attorneys in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.

Parties who are involved in a child custody case, divorce or miscellaneous custodial petition in Providence and Kent County Family Courts typically agree to share joint legal custody over their minor children. When people agree to joint custody in RI, they agree that they both are fit and proper people to enjoy joint legal custody of their children. Some of these agreements are driven by a desire by both parents to co-parent their children. Many of these agreements are because both parties come to a realization that there is no other feasible option since there is a high likelihood that the judge will award joint custody of the child, if the parties cannot agree.

What is sole custody?

• A parent may solely make all important and major decisions concerning a child’s health, welfare and upbringing without consulting with the other parent.
• These major decisions include religious, educational, medical and general welfare decisions.
• The parent with sole custody of the child will also have physical placement of the child.
• The parent with sole legal custody has complete access to medical, educational and other records related to the child.

Distinction between joint and sole custody

Child custody in RI: sole custody increasingly rare

Sole custody has really become a relic of the past. It should only be implemented in the most extreme circumstances in my opinion. Both a father and mother should be involved in decisions concerning their child except under extreme circumstances. Judges in Rhode Island (RI) are awarding joint legal custody of a minor child to a vast majority of parents in Rhode Island divorce, child custody and family law cases. Sole custody is usually only awarded after a full trial or testimonial hearing on the merits and in the most extreme factual circumstances.

When may sole Custody be warranted in Providence Family Court?

• Severe mental health problems of one parent rendering the parent incapable of making sound custodial decisions.
• Long history of domestic violence, complaint protection from abuse and restraining orders.
• Serious drug and alcohol problems over a long period of time and existing in the recent past.
• Little to no relationship between the parent and child.
• Substantial and serious criminal record such as felonies involving drugs or violence.
• Lack of a visitation / parenting time over a long period of time.
• Complete lack of any meaningful communication between the parties.

SOLE CUSTODY in Rhode Island does NOT mean:

• that the other parent will not get overnights
• that visitation will be supervised
• It has little to no effect on a visitation schedule.

Joint Legal Custody means both parents of a child or children should be involved in major / important decisions concerning a child’s upbringing, education, medical and religious welfare. Theoretically, both parents with joint custody have equal rights in making important decisions regarding their child or children. Both parents have full rights to access all medical, educational and other records pertaining to the child. In order for joint Custody to be feasible, the parents must have some level of communication and respect for each other to allow them to co-parent.