Recently in Parental Rights Category

Here is a quick coaching tip for anyone who has received a Motion to Change or Terminate Legal Custody that will be heard before the Rhode Island Family Courts.

First, if you must represent yourself in the Rhode Island Family Court System regarding this motion, make sure you understand the motion itself.

If the motion says "Legal Custody" and NOT "Physical Custody" or "Placement" then unless the motion uses some other words relating to where the child resides, then it deals with the fundamental right you have as a parent to participate in the decision making process for your biological or legally adopted minor children regarding 'major aspects" of the child's life. 

These "major aspects" of the child's life have generally been held to include (a) medical care, treatment and anything constituting a reasonably important health-related concern, (b) the religious upbringing of the child, (c) the child's education and schooling, (d) nature and form of discipline for the child, and (d) anything of a reasonably substantial nature affecting the general welfare of the child.

Generally speaking, if no order has been previously been issued by Rhode Island or any other state's court, then as long as there is no dispute as to who the biological parents are, a general presumption is often made (as it should be) by most Rhode Island family court judges, that each parent has an equal say as to the major aspects of the child's legal custody. 

When there is disagreement between the parents of the child, then the Court is called upon in a legal custody dispute to hear both sides of the issue and determine what is in the best interests of the minor child.  Note that I did not say that the judge rules in favor of one parent or another.  The court takes a special interest in protecting the minor child and, if necessary, the judge will fashion a remedy is in the best interests of the child based upon the circumstances and the disagreement of the parents.

In short, if "Legal Custody" and not "Physical Custody" or 'Placement" is the issue, the issue is not whether you will lose your child.  The issue will be whether the court will agree with your decision as a legal custodian of your minor child, or whether the judge finds any substantial conditions or circumstances regarding your ability to make proper decisions for your minor child is impaired to such a degree that your right to make decisions for your minor child should be limited or denied entirely.

Generally speaking, it has been my experience in my divorce and family law practice that judges are very hesitant to remove a parent's decision making rights as a legal custodian without substantial just cause.  Ultimately, a good rule of thumb I have followed is this.  If the court gets the impression that you are unable to make good decisions for yourself, its a safe bet that the judge may not believe you can make good decisions for a minor child.

What might constitute just cause to deny your legal custodial rights?  Criminal charges, Alcohol Addiction, Drug Addiction, Domestic Violence, and substantial inability to maintain employment and support your child or participate in your child's life for an extended period of time are just a few.

In the end, know what you are defending against and know what your shortcomings are and how to address them to the court.  Be respectful and present yourself in the best light possible.  If something in your present or your past doesn't make you look good to the court, try to make sure you get the time to explain to the court how it is unrelated to the decisions for your child or how your experience has helped you learn to make better decisions for your child.  An attitude of caring for your child's well-being over your own is always a plus.

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 Judgement 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.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Divorce can be heart wrenching.  In fact, it can be so earth shattering that it can cause your spouse to do things he or she wouldn't otherwise do.  This can lead to some pretty devastating consequences if you aren't aware of it or simply trust that "my spouse would never do that".

Examples are always best.  Consider this one.

Charlie has been married to Victoria for about 22 years.  The children are fairly well grown and in their late teens.

Charlie sees Victoria as very spoiled and unreceptive to him.  He tries to talk to his wife about it but she doesn't want to hear about it.  Victoria is from an old fashioned italian family and getting a divorce in Rhode Island isn't even something she'd consider.

Charlie runs into an old friend, Carrie.  They have some coffee and talk about old times.  Charlie has a good time just talking with someone for years.

Charlie comes home happy after a nice chat with Carrie and Victoria suspects something more is going on.

Victoria starts following Charlie around and finds him having coffee and lunch with Carrie on a few separate occasions.

Victoria confonts Charlie very harshly about it and asks him what is going on.  Charlie explains that he can't seem to talk with her anymore so when he met up with an old friend they've been getting together to talk and catch up on old times.

Neither Charlie nor Victoria mention getting a divorce or that the situation is even that bad.  Victoria is angry and she yells and screams at Charlie so that he gets in his car and leaves.  He comes back later after he thinks Victoria has calmed down.  Victoria's car isn't in the driveway.

Charlie drives into the drive way and goes into the house.  Victoria has not calmed down.  She accuses Charlie of having an affair and cheating on her.  As Charlie tries to calm Victoria down she starts pushing Charlie and then hitting him with spatulas as they make their way into the kitchen. 

They make their way out the kitchen door into the driveway and Charlie sees that Victoria's car was hidden in the backyard.

Victoria runs out to Charlie's car and starts rifling through it looking for any evidence of this "mistress" or an affair, .... something..... anything.

Charlie begs her to calm down.  Then she starts ripping open his seats with her car keys.  Charlie reaches into the card door and takes hold of Victoria's arm to pull her out of the car.  Victoria comes out of the car and slashes his arm with her keys and she tears Charlie's shirt.

As Charlie's shirt rips Victoria falls back on her butt and notices that their daughter is near the window.  Victoria starts screaming "Help" and "He's Beating me".  Neighbors come out.  The daughter comes out and the next thing you know, the police have been called and Charlie is arrested and convicted for domestic assault and prohibited from returning to his house.

Charlie never expected that Victoria would do such a thing.  To some of us it is unfathomable that the prospect of divorce or the possibility of betrayal would cause someone to hide cars, accuse our spouse of infidelity, stalk other people and even set them up for criminal charges.

Is Rhode Island Divorce potentially in your future?  Are you a man?  Be wary!  Be careful!  Be mindful!

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.