Articles Posted in Child Custody

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A Rhode Island divorce can be an extremely difficult and complicated legal dispute, often because the stakes of a child custody dispute are always very high. Although there is limited statutory direction to guide the courts when awarding custody of a child to one parent or the other, the courts have developed legal principles that are used consistently in deciding how to award custody. A case recently decided by the Rhode Island Supreme Court explains the primary factors courts should use in making a custody determination and deciding whether to permit a parent to move out of state with their children against the other parent’s wishes.

In the recently decided case, the parties were a married couple with children who sought a divorce in Rhode Island family court. The mother, who was awarded primary physical custody of the children, sought to relocate to Ohio to be near her family after the divorce. The father, who was awarded joint legal custody of the children, as well as visitation privileges, challenged the mother’s relocation because he wanted to be closer to the children. The family court denied the mother’s request, requiring her to remain in Rhode Island with the children. The mother appealed the ruling to the Rhode Island Supreme Court.

On appeal, the high court discussed the factors for awarding child custody used in Rhode Island. According to the opinion, the courts focus broadly on factors to make a decision concerning relocation that is in the best interests of the children. These factors include considering the nature and quality of the relationship between each parent and the children, the reasonable likelihood that the relocation would enhance the general quality of life, including economic and educational opportunities, for both the parent and the children. Additional factors to be considered include the feasibility of maintaining a relationship and suitable visitation between the non-relocating parent and the children and the existence of extended family and other support systems available to the child in both locations.

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Rhode Island child custody disputes can be especially difficult during and after a divorce. Family court judges are granted wide discretion in determining what custody or visitation arrangement a family will be required to abide by, and overturning these decisions can be difficult. The Rhode Island Supreme Court recently released an opinion denying a father’s request for argument in an appeal that he had filed challenging a family court judge’s ruling which suspended unsupervised visitation with his children.

The appellant in the recently decided case is a Rhode Island father of three children who was divorced from the mother of the children in early 2014. As part of the divorce agreement, the father was granted partial custody of the children with the right to visitation. In 2017, the mother of the children sought to suspend the father’s visitation, in part because of alleged animal abuse that occurred in the presence of the children. After hearing from witnesses, including both parents and the couple’s children, a family court judge granted the mother’s request to suspend unsupervised visitation. The judge also ruled that the father must complete a mental-health evaluation and seek leave from the court before resuming unsupervised visits with his children.

The father was displeased with the family court’s decision and appealed the ruling.  The appeal eventually reached the Rhode Island Supreme Court. The father, representing himself throughout the process, argued that the lower court abused its discretion when it ruled that his behavior was harmful to the children. Additionally, the father alleged that incident involving the alleged animal abuse never occurred, and that it was the result of “false memories” that were created with the encouragement of the children’s mother and their maternal grandparents.

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Earlier this month, a state appellate court issued an opinion in a Rhode Island family court case discussing whether the plaintiff grandmother could obtain visitation rights to see her grandchildren. Ultimately, the court concluded that the children’s father was a fit parent and that the plaintiff failed to overcome the presumption that a fit parent’s decisions are reasonable. Thus, the court dismissed the plaintiff’s petition for visitation.

The Facts of the Case

According to the court’s opinion, the plaintiff’s daughter was married to the defendant. The couple had two children. The couple eventually filed for divorce, but while the divorce was pending the plaintiff was shot and killed by law enforcement in a bank robbery.

Initially, the plaintiff maintained a good relationship with the defendant, taking his side over her daughters in the divorce. After the plaintiff’s daughter died, the plaintiff helped the defendant with child-care, because the plaintiff worked. However, the defendant noticed that after visits with the plaintiff, his children would come back with bags under their eyes, diarrhea, and symptoms of being sick. The children eventually started to exhibit behavioral problems at school, most notably after visits with the plaintiff.

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While many issues must be resolved when spouses separate, child custody matters are frequently the most hotly contested issues in a Rhode Island divorce. The term “child custody” refers to two separate types of custody, physical and legal. Physical custody refers to the parent with whom the child will live while legal custody refers to the parents’ ability to make important life decisions for their children.

Each state has its own laws regulating how judges resolve child custody issues. In Rhode Island, courts use the “best interest” standard, which focuses primarily on what is in the best interest of the child. Of course, this may not necessarily be in line with the expressed interests of the child, especially if they are young. Interestingly, Rhode Island lawmakers never defined what factors courts should consider when deciding what is in the best interest of a child. Thus, in the 1990 case, Pettinato v. Pettinato, the Rhode Island Supreme Court listed several factors that should be considered. Since then, these factors have been termed the “Pettinato factors.” Therefore, when deciding what is in the best interest of a child, courts must consider each of the following:

  • The wishes of the child’s parents;
  • The preference of the child, if the child is “of sufficient intelligence, understanding, and experience to express a preference”;
  • The child’s relationship with her parents, siblings, or anyone else who may impact the best interest of the child;
  • The child’s adjustment to her home, school, and community;
  • The physical and mental health of the child as well as the parents;
  • The stability of the child’s home environment;
  • The moral fitness of each of the child’s parents; and
  • The willingness of each parent to foster a meaningful relationship with the other parent.

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What would you do if your spouse took your children out of the country and refused to bring them home? A Canadian man unfortunately faced this situation after his wife took off with a child following their annual vacation to Rhode Island. Cases like this illustrate why it is so important to have a custody agreement in place. If you are concerned about a similar situation happening to you, you should contact an experienced Rhode Island child custody attorney as soon as possible.

The Circumstances of the Case

The couple was married in 2010, and had two children during the marriage. The father is Canadian and the mother is American, but she became a Canadian permanent resident after the marriage. Every year the family would take a trip to Rhode Island together. However, during the 2017 summer trip the mother found emails that suggested that the father was having an affair with someone else. Instead of returning to Canada, the mother flew to Texas with a child and then relocated to Michigan.

Throughout this period, the father and mother were in contact and the father helped to enroll the child in school in Michigan. The parties emailed about an interim agreement regarding the custody of the child and the couple’s unborn child that would have the children staying with their mother in Michigan. However, the father never signed the agreement. He later filed a petition for the return of the children.

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Most of the time that child custody is discussed, it is in the context of divorcing parents. Of course it is increasingly common for the parents of children to not be married. So what are the rights of Rhode Island parents when they are not and have never been married to the other parent? You should talk to an experienced Rhode Island family law attorney to understand how the laws are applied in your situation, but there are some basics that unmarried parents should know.

Father’s Rights

When a married woman gives birth, her spouse is legally presumed to be the parent of the child. When the mother is not married, paternity first has to be established in order for the father to be given parental rights. Establishing paternity does not necessarily require a paternity test. The father of the child can acknowledge paternity of the child. He can do this through putting his name on the birth certificate or other means. Once the father has been established, then he will have equal parenting rights as the mother, though this does not necessarily mean equal time with each parent.

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Generally, parents are able to take their children anywhere they want to. However, there are important exceptions to this rule. One common situation is if you share custody of your child with someone else. Another time where you are not allowed to take your child out of the state is if they are in custody of the Department of Children, Youth, and Families (DCYF). One Rhode Island couple found this out the hard way after being arrested in Florida when they took their child there, even though she was in DCYF custody.

Child Snatching Charges

Rhode Island DCYF removed the couple’s infant child from their custody a few days before this incident occurred. The child was placed with a relative, and a family court order prohibited the couple from unsupervised contact with the child.

However, in defiance of the court order the couple went to the house and took their child. They told the relative that they would return the child soon but instead they took her to Florida. They were arrested in Florida, and their infant daughter and other child were returned to DCYF custody. The couple faces child-snatching charges.

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In a recent decision, the Rhode Island Supreme Court denied a mother’s relocation request. The couple was divorced, and the mother wanted to move with the couple’s four children to Australia. However, the children’s father was staying in Rhode Island. If you are a divorced parent who wants to relocate with your children, or your ex is trying to relocate with the children and you do not want them to move, you should contact a skilled Rhode Island Family Court attorney to help you make your case to the judge.

Facts of the Case

The mother is a citizen of Australia and a legal permanent resident in the United States. The father is a citizen of the United States, and the children have dual citizenship. The parties were married in Australia, but currently live in Rhode Island. After the divorce, the children lived with the mother, but the father had frequent visitation.

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The opioid epidemic is a problem all over the country. Here in Rhode Island, some grandparents are seeking custody of their grandchildren after the parents have become addicted to drugs. However, navigating the Department of Children, Youth, and Families (DCYF) as a grandparent can be difficult, and some grandparents have gone as far as to call the process “hell.” While dealing with these issues is stressful even under the best of circumstances, an experienced Rhode Island grandparents’ rights attorney can help you through the process.

Which Rights Do Grandparents Have?

Generally, parents are in charge of all of the decision making regarding their children, including whether their grandparents are allowed to see them. However, there are some circumstances in which the court may grant visitation to grandparents even over the objection of the parents.

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Divorces are famous for bringing out the worst in people. Now, with rapid growth and innovation in technology, ex-spouses sometimes use these new products in ways that can hurt them in family court. In an attempt to gather evidence, people going through a divorce or considering one are using apps and programs to track each other and get recordings and other evidence to potentially use in court. However, many of these tactics are illegal, and even the ones that are not may hurt your case in family court.  An experienced Rhode Island divorce attorney can help you with your case and make sure that you have safeguards in place so that your former spouse cannot gather any information without your knowledge. They can also help you stay within the law and refrain from doing anything that will damage your position.

What is Legal?

Divorce lawyers in Rhode Island have noticed that many of their clients are putting tracking devices in each other’s cars or using apps like the “find my iphone” app to keep tabs on each other. The ubiquity and relative inexpensiveness of these devices has made it much more common for divorcing partners to find out information about each other. Parents are also putting devices like cameras or location tracking on their kids when the children are with the other parent. While the separated individuals may think these tactics will give them evidence that will help them in court, that’s often not the case, and it’s easy to run afoul of the law.

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