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In many cases involving children, the Rhode Island Family Court will appoint a lawyer or attorney familiar with Rhode Island family law and it's standards as a Guardian Ad Litem for the child(ren).

The role of the Guardian Ad Litem is typically to investigate the circumstances of the parents and protect the best interests of the minor children.  The Guardian Ad Litem will use his or her factual investigation and apply his or her findings to the standards set forth by the Rhode Island Supreme Court in the case of Pettinato v. Pettinato, 582 A.2d 909 (RI 1990).

The Pettinato case is the primary case in which our Rhode Island Supreme Court set forth the factors to be considered when determining "the best interests of the child." 

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.

The formal report of virtually every Guardian Ad Litem will reference the Pettinato factors.  

So what does a Rhode Island family law attorney do if the Guardian Ad Litem's report and recommendations are adverse to their client?  Sadly, this is where things become problematic.  Too many Rhode Island family law attorneys will advise their client that the Guardian's Report "went against them", "that the judge will give the Guardian's Report tremendous weight/importance"  and therefore it is not practical to challenge the recommendations at a full hearing on the merits.  

So what do you do if a Guardian Ad Litem's report is not in your favor any you believe that the recommendations to the court are clearly wrong.

First, family law clients and attorneys need to discuss the Guardian's report and recommendations and what they mean from both a legal and a practical standpoint.  Why?  Because you do not want to spend time, effort and money challenging something if you don't understand what it means to you as a client and particularly as a parent.

Second, clients/parents must understand that a Guardian's Report is based solely upon that solidity of the Guardian Ad Litem's investigation.  

Third, clients/parents need to understand that not every Guardian Ad Litem will perform the same type or depth of investigation.  Therefore, some recommendations will be based upon a solid investigation and others may be based upon a weak investigation.

Fourth, clients/parents need to understand that some Rhode Island family law attorneys are not willing to question or challenge the recommendation of another attorney who may be a well-known attorney by reputation or a friendly colleague. 

Whether you are a family law client or a litigant representing yourself before the Rhode Island Family Courts, you must be aware that a Guardian Ad Litem's recommendation and report is just that... a recommendation.  The court is NOT bound by the Guardian Ad Litem's recommendation and it is the judge, based upon all the factors and all of the evidence presented who makes the final decision.

Why is it important to know these things?

Imagine that you are a judge.  You are presented a report and recommendation by a well-known Guardian Ad Litem that you assigned to the case.  The matter goes through a full trial.  During the Judge you hear all the evidence from a client/parent who was unwilling to accept the report and settle the case.  As the Rhode Island Family Court judge you want to make sure that any information and recommendation you are given is accurate and is based upon sound investigation so that you make the best possible decision.

Now as the judge you hear testimony and take evidence from people that you believe the Guardian Ad Litem should have spoken to before making his or her recommendation.  There is no explanation why the Guardian didn't consider these various people or records.  

In the end, as the Judge you believe that the Guardian simply didn't look deep enough or drew conclusions that were not reasonable because important information was not considered.

As the judge, how much significance would you give to the Guardian Ad Litem's recommendations if you believe the Guardian's investigation was not thorough enough?  Would you give the recommendations very little significance?  Perhaps even none?

This is not a rare scenario.  A Rhode Island Family Court judge wants to make the best decision possible for minor children.  The judge may well find that the Guardian Ad Litem's report should be given very little consideration when making his or her decision because the Guardian neglected to speak with key people, look at important records that were available, or to ask important questions which may substantially impact the Guardian's recommendation and the court's decision.

In my history working with Rhode Island Divorce Attorneys, I have witnessed too many attorneys who advise their client to settle a case when a Guardian Ad Litem's report and recommendations are unfavorable to their client.  This can be a grave mistake.

Individuals who represent themselves and attorneys with their client's best interests at heart need to scrutinize not simply the Guardian Ad Litem's recommendations, but more particularly the factual investigation.

In the end, a good Rhode Island Family Lawyer does not simply defer to a Guardian Ad Litem's recommendations simply because he or she holds the title of Guardian Ad Litem.

Consider this analogy. Carports are rarer these days but the idea is simple.  A carport is a roof that protects a car or truck and its owner/driver from the elements of sun, snow, wind, rain, etc...   This roof is held up at each corner by a post that must be strong enough to bear the weight of the roof and withstand the various elements that are thrown at them.

The recommendation of the Guardian Ad Litem is the roof of the carport.  A  judge would like to rely upon it for a reasonable level of stability just like the driver of a car sitting in his car under the carport wants to be to trust that the carport's roof will keep him safe.

Yet what happens if you show the driver of the car (i.e. the Judge) that the posts (i.e. the investigation) holding up the roof (i.e. the recommendations) are filled with termites, are made of weak wood, and can't support the roof (i.e. the investigation doesn't support the recommendations)? 

Is a judge likely to rely upon the builder (i.e. the Guardian Ad Litem) in that instance, or remain under the builder's roof (i.e. rely upon the Guardian Ad Litem's recommendations)?  The answer is . . . no. 

In short, a Guardian Ad Litem's Report is not the end.  The judge has the final word based upon all the evidence.

Carefully scrutinize the recommendations and particularly the investigative report upon which they are based.  If you are able to invalidate or weaken the investigation, then you remove the support for the recommendations. 

If you show a weak investigation then the Guardian's report and recommendations may not even be given the weight of the paper it is written on.

I commend those people who are "do-it-yourselfers".  I happen to be one of those people myself.  People such as these always seem to be willing to undertake a challenge even if it means trying to save money by representing themselves without a Rhode Island Divorce Lawyer.  Yet in the same breath, I have to caution almost 99% of the population against it.

I had yet another consultation recently where a person asked the question at the end of the consultation, "Why do I need a Rhode Island divorce lawyer?"

This is perhaps the biggest "loaded question" I get because the answer is not as simple as saying something like "because as a Rhode Island divorce lawyer I've gained the skills to anticipate things that you may not anticipate as a layperson."  Frankly, though I wouldn't want it to sound condescending, it sounds that way almost invariably to everyone and as a result some people get offended.  Certainly that wasn't my intention.  Yet no matter how I vary my tone or the flow of conversation, it comes out that way.

The fact is, that I learned (personally) the hard way that you need a Rhode Island Divorce Lawyer in almost every instance.  The law, including Rhode Island law, is never as simple as people would like to think it is.  Though many people might think that we as lawyers are "overcomplicating things" in order to get more clients, the law is complicated.  There are subtleties and caselaw associated with statutes in the Rhode Island General Laws that most laypeople will never read, let alone pull together the significance that several cases may have upon the significance of the interpretation of a law by the courts that may severely impact their case or the position they are taking.

Therefore, invariably I have changed the manner in which I answer this "loaded question" of "Why do I need a Rhode Island Divorce Lawyer?"  I now answer the question with examples.

The question usually comes up with people who want to save money and have very little in the way of assets or have no children at all.  Yet many couple's have something in their divorce that is problematic and they aren't even aware of its significance.

An example of a couple who did not retain Rhode Island Divorce Lawyers to protect their interests is   helpful here.

EXAMPLE

John has a consultation.  He has been married to Linda for only one year.  They were best friends and took what they thought to be the next logical step in their relationship.  Unfortunately they found they were great as friends but terrible as a married couple.  Each of them had different expectations of what marriage was all about and what they expected of the other.

John and Linda each had their own apartments and their own possessions prior to their marriage and all of those items of personal property had been retained by each of them.  They did not have any real estate.  They did not have any children.  They did not have any retirement plans.  At the beginning of their marriage they agreed that John would carry the health and dental insurance for both of them and pay for that out of his income.  John and Linda each worked a job and made roughly the same amount of money.  Linda, did, however get an annual payment of $2,000 for not electing to be on her company's health insurance plan.

John doesn't believe they need a lawyer in order to do their divorce even after his consultation and a reasonable and even affordable quote for representation.  It's understandable because people simply don't like paying Rhode Island lawyers, especially Rhode Island divorce lawyers.

John and Linda reach an agreement, John files for divorce and muddles his way through the process and he and Linda finally make it to their Nominal Hearing date in the Providence County Family Court.  John and Linda miss only one important question and the particular Judge hearing their case is kind enough to ask the question to finalize the requirements of Rhode Island Law to be able to grant the divorce.

Both parties sit at plaintiff's counsel table and defendant's counsel table as they listen to the Judge's decision.

John and Linda agreed that they would each own and be awarded the items they each brought into the marriage free and clear of any claim of the other.

Each of them is awarded all right, title and interest in and to the items currently in their respective possession, free and clear of any claim of the other.

They both testified that they also agree that they will each be responsible for the credit cards they each have in their own name.

John has agreed that he will continue to take care of the health and dental insurance for Linda pursuant to the Rhode Island Health Insurance Continuation Act.

The court grants them each an absolute divorce based upon irreconcilable differences that have caused the irremediable breakdown of the marriage.

John and Linda are able to get through the remainder of the divorce by preparing the Interlocutory Decision Pending Entry of Final Judgment, presenting it to the Domestic Relations Clerk for verification, presenting it to a family court Judge for signature, then filing it in the Domestic Relations Office for Entry by the Clerk or Associate Clerk to make the Interlocutory Order Official and insure that it corresponds with the record of the court. 

John and Linda pass the 90 day waiting period and then present the Final Judgment of Divorce to the Domestic Relations Clerk to be checked for consistency with the court record, presentment to a Domestic Relations Judge for signature, and then filing with the Domestic Relations Clerk's Office for Entry and issuance of certified copies of the Final Judgment of Divorce for both parties.

As far as John and Linda are concerned, they are done and they are divorced.  The court closes its files and sends it off to the State Archives in Pawtucket, Rhode Island.

Then an issue arises.  John's company only offers single insurance for John which the company will pay the premium for, OR family coverage for John and Linda which John must pay the difference in premium for out of his pay check.

John doesn't want to pay the extra $447 per month that it costs for the family plan and he demands that Linda pay it if she wants to remain on his coverage.  Now, Linda brings their Final Judgment of Divorce to a Rhode Island Divorce and Family Law Lawyer.  Linda is advised that she is not obligated to pay the difference between the coverages and tells John that she will not pay it.

John takes the Final Judgment of Divorce to a Rhode Island Divorce Lawyer and asks about his rights.  John is dumbfounded to be told that he cannot remove Linda from the insurance plans and that it is implicit in the court's final judgment that he will continue to insure Linda at his cost, indefinitely, under the Rhode Island Health Insurance Continuation Act or until one of the provisions under the Act occurrs that no longer makes Linda eligible for coverage.

John takes Linda to court because he believes that Linda should pay her own insurance costs and because that is what he and Linda agreed upon. 

Upon their return to court, the judge reads the Final Judgment of Divorce, the Interlocutory Decision Pending Entry of Final Judgment and the transcript of the proceeding.  These documents are silent as to the agreement that John mentions.  John is ordered to continue to pay for Linda's medical and dental insurance out of his paycheck indefinitely until a disqualifying event occurs that allows the health insurers to remove Linda from the medical and dental insurance plans.  The judge also awards Linda attorney's fees of $1,000 for the needless defense of John's motion.

In the end, Linda has benefited.  However it was John who went to the consultation and John's desire to save about $1,500 for representation during his divorce has cost him $1,000 for Linda's lawyer and a payment of $447 per month indefinitely until Linda is disqualified from coverage under the Rhode Island Health Insurance Continuation Act by John's Health and Dental Insurer.  In one year along John will have paid $6,364 for attorney's fees and insurance costs.

If Linda isn't disqualified for five (5) years then John will have to pay $33,184 in insurance costs and attorney's fees.

Why do you need a Rhode Island Divorce Lawyer, John?

Assuming you paid the divorce lawyer even $1,800 . . . . he or she is likely to have saved you $31,384!

Need I say more?