RI Child Custody

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 http://www.hg.org/article.asp?id=18219 )

 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. Child Custody matters involving preference of the child may play a role in Rhode Island Divorce, Paternity, Miscellaneous Petitions for Custody, DCYF, Motions to modify Custody or placement and visitation disputes. Children have no real influence on Child Support cases.

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).”

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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. Alimony and counsel fees – Custody of children. 

“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)Marianne SAMMATARO v. Robert SAMMATARO.

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) Jo-Ann MATTERA v. Steven A. MATTERA et al

Resources and Statistics

“About half (50.6 percent) of all custodial parents had either legal or informal child support agreements. • Custodial parents receiving the full amount of child support due declined between 2007 and 2009, from 46.8 percent to 41.2 percent. • Of the $35.1 billion in child support due in 2009, 61.0 percent was reported as received, averaging $3,630 per custodial parent who was due support. • Child support represented 62.6 percent of the average income for custodial parents below poverty who received full support.” Custodial Mothers and Fathers and Their Child Support: 2009 Consumer Income,  Issued December 2011 P60-240 Current Population Reports By Timothy S. Grall http://www.census.gov/prod/2011pubs/p60-240.pdf 

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.

A Rhode Island child custody attorney sets forth 10 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 children and the minor child’s their 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 custody litigation. You are always subject to a drug test in RI family Court. This includes marijuana even though it is a civil offense in many states. Most judges believe parental use of marijuana is not in the best interest of the minor child.
4. In your divorce, Rhode Island 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
8. Never interrupt the judge while the judge is speaking. This is rude and disrespectful.
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.
11. Do not videotape your child or record your child in any way related to the Family law case. Judges do not like this.

Does the Rhode Island Paternity statute address custody and visitation?

R.I.G. L section 15-8-3 is the paternity statute in Rhode Island and Providence Plantations.  RI law 15-8-3 makes it clear that a paternity order in RI can address issues of child custody, visitation and  RI child support.

(c) The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, or any other matter in the best interest of the child. The judgment or order may direct the father to pay the reasonable expenses of the mother’s pregnancy and confinement.

(d) Support judgments or orders may be for periodic payments which may vary in amount. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court shall consider all relevant facts, including:”

If you are in need of a RI paternity lawyer, contact RI paternity attorney, David Slepkow. A paternity lawyer in Rhode Island will make sure your legal rights are protected.

Does Rhode Island have any presumptions of paternity?

Yes. If a child is born during a marriage, the husband is presumed to be the biological father of the child.

§ 15-8-3. Presumption of paternity. 

(a) A man is presumed to be the natural father of a child if:

(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court;

(2) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within three hundred (300) days after its termination by death, annulment, declaration of invalidity, or divorce; or

(ii) If the attempted marriage is invalid without a court order, the child is born within three hundred (300) days after the termination of cohabitation;

(3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage could be declared invalid, and:

(i) He has acknowledged his paternity of the child in writing filed with the clerk of the family court;

(ii) With his consent, he is named as the child’s father on the child’s birth certificate; or

(iii) He is obligated to support the child under a written voluntary promise or by court order;

(4) He acknowledges his paternity of the child in a writing filed with the clerk of the family court, who shall promptly inform the mother of the filing of the acknowledgement, and she does not dispute the acknowledgement, within a reasonable time after being informed, in a writing filed with the clerk of the family court. If another man is presumed under this section to be the child’s father, acknowledgement may be effected only with the written consent of the presumed father or after the presumption has been rebutted. The written acknowledgement of paternity shall be admissible as evidence of paternity;

(5) He has submitted to blood testing and the results establish a conclusive presumption in accordance with § 15-8-11(e); or

(6) A sworn acknowledgment of paternity of a child born out of wedlock is signed by both parents on forms prescribed in accordance with § 23-3-9, either at the department of human services or division of taxation within the department of administration, and is forwarded to the state registrar of vital records for the purpose of amending the birth certificate. Before signing the sworn acknowledgment of paternity, the parents shall be given written notice of their respective rights and responsibilities. The sworn acknowledgment of paternity becomes a conclusive presumption if there is no court challenge to this acknowledgement within sixty (60) days of the signing of this acknowledgment. The only defenses which may be raised to the signing of this acknowledgment after the sixty (60) day period are fraud, duress or mistake of fact.

(b) Except for a conclusive presumption under subdivisions (a)(5) and (a)(6) of this section, a presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two (2) or more presumptions arise which conflict with each other, the presumption, which on its facts, is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

This aspect of a break-up is the most complicated aspect of a divorce to handle. Certainly, if the divorce is amicable then the needs to children can be prioritized. However, that may not be your particular situation. With that in mind, this article will share some things which may help your family cope with the changes that divorce brings.

Children and divorce

• Advice is best lived, not taught – You Must be Healthy. It’s easy to elevate the needs of the children above that of your own. It’s “parental” to feel that way, but it isn’t healthy. In a divorce setting, no one will benefit from you being devastated emotionally, physically, and financially. Allowing yourself to continue to suffer imbalance in life will be seen and quite possibly misinterpreted by your children. The lessons they will learn from you during this time are lasting. If you want your children to adjust to a post-marriage life in a healthy way you’ll have to live healthy for your sake alone. It may sound counter-intuitive but as you find that spirit of inner peace with your life your home will exude that spirit and your children will find comfort in that. Often times the pain they suffer comes from watching their beloved parents suffer.
• A Family can change and still be a family. A break up of a marriage and family will set into motion a state of evolution into your family’s life. Do not fight it or struggle to keep things as they were. Embrace the change and instruct your children that changes will occur that cannot be avoided but that you will still be a family. Take time to do things that reaffirm your family. Reaffirm your family spirit again and again.
• There’s safety in numbers. A divorce or death of a marriage is like a death in the family. It can instill in children a sense of dread, fear, and isolation. Involve family members in the lives of your children so that they can “feel” that the family remains intact even though the marriage is ending. These gentle affirmations will give children opportunities to overcome the uncertainties ahead of them.
• Family counseling is a resource. As the parent, it’s important to remember that you’re not the first person to go through a divorce. In fact, many have gone through a divorce and among them some have fared well and others have not. You can benefit from the wisdom of hindsight and learn from other’s experiences. Getting family counseling is an effective way for each family member to receive guidance and minimize the mistakes that are commonly made by people in these circumstances.
• Be honest with yourself. You are not the only one who will know if you stand in need of help but you are the only one who can bring about change in your life. A healthy adjustment to life during and after a divorce will be invaluable to your children. Regardless of the blame you bear in the divorce, a healthy life through divorce will strengthen the bonds of your relationship with your children and bring about whatever level of forgiveness is needed to restore those relationships.

Remember that family bonds are forever. They can endure a divorce. If you maintain a spirit of peace in your heart during adversity that will be the lesson your children will long remember.

“However, many families in Virginia and the throughout the United States do not remain “intact” — the parents separate or divorce and live apart. Or increasingly, the parents choose not to marry and may or may not live together when the child is born. When separating and divorcing parents cannot agree on who should make decisions for their child (e.g., medical care, religion, or schooling), where the child should live, or how much one parent should see the child, they are in dispute over what the legal system has historically called “custody” of a child.

The core method by which a court resolves the parents’ dispute is through a traditional litigation model. The disputing parents bring their disagreement to a judge who hears evidence and makes a decision about what the child’s post separation and divorce custody arrangements should be.” http://childcustodyproject.org/essays/best-interests-of-the-child/