Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

Rhode Island Custody Lawyer Answers A LawGuru Question about Physical Custody and Moving Out of State

Category: Family Law, Divorce, Child Custody and Adoption 

Location: Rhode Island

Physical Child Custody Question: I have sole physical custody of my two children and we share joint legal custody. We have been divorced for three years . I currently live in Lincoln, RI and would like to buy a home in Franklin, MA. It is 17 miles away and a 25-30 minute drive. Can the father of my children prevent me from moving such a short distance? There is nothing in our divorce decree that addresses this issue. He currently lives across the street from me and does not want to drive 25 minutes to pick them up or drop them off. I have agreed to meet him half way for visitation but he still has contacted a lawyer. Does he have a valid case?

Rhode Island Custody Lawyer Answers: 

Yes, your ex-husband can validly petition the Rhode Island Family Court for an Order preventing you from moving with the Minor Children out of the state. It is not so much the distance that is the issue. The issue arises in the fact that you want to move the Minor Children outside the geographical boundaries of the State of Rhode Island. It is irrelevant that there is nothing in your divorce decree or any marital settlement agreement that you may have had that addresses the issue. Courts and parties are rarely able to address every type of situation that might arise in a family after a divorce occurs, although this issue is a bit more common. However, your ex-husband should make sure he gets an experienced Rhode Island Divorce and Family law attorney to advise him regarding this issue. 

Why do I say this? 

Because the information he would receive would be substantially in your favor. Rhode Island case law is fairly clear that absent your ex-husband proving that you are moving for a vindictive reason such as to deprive him of his visitation or to make things more difficult for him, then as the placement parent (parent with physical custody) you only need to demonstrate to the court that you have a good reason for moving with the children. 

The reason can be anything from buying a house for the children, moving for a new job opportunity, better school systems for the children in the new area you would move to, a better neighborhood for the children, one or more family members live in the new area you propose to move to, etc... but all your reasoning should collectively be for the benefit of the minor children.

Generally speaking a "good reason" seems to be any reason that makes sense for the best interests of the children and you as the placement parent, other than one that vindictively is designed to hurt the other parent in some way. Therefore, even though your ex-husband has a valid case he can make before the court, based upon the facts you have provided here, he is unlikely to prevail in preventing you from moving with the children unless he can prove the vindictive reason for moving the children. 

Helpful Family Law Tip: 

To protect yourself, put your offer to meet him half way for his visitation and your desire that you don't want his relationship with his children to change in writing and spell out all the excellent reasons you have for moving with the kids and how it would benefit them. This might prove to be an excellent piece of evidence you might be able to present to the court at a later date if you need to.

I wish you the very best of luck.  I have addressed this issue over the years and it is one I am well versed in.  Your greatest challenge is not your legal issue.   

If you need further assistance, do not hesitate to contact me at (401) 632-6976 or review one of my helpful Rhode Island Divorce and Family Law Websites listed on this page.

Warm Regards, 

Christopher A. Pearsall, Esquire

Rhode Island's Only Full-Time Divorce Lawyer and Family Law Coach*

* Note: The RI Supreme Court licenses all attorneys in the general practice of law and has no procedure for specialization or recognition in any area of law.

Two Benefits to Having a Marital Settlement Agreement by RI Divorce Attorney Christopher Pearsall

If you had the choice of having an easy uncontested Rhode Island divorce and a difficult mess of a divorce, which would you choose?

I would like to think that you would choose an easy uncontested Rhode Island Divorce because I prefer to think that as a reader of this blog you have a lot of common sense and you would rather see things go smoothly instead of roughly.

There are two benefits that divorcing spouses should be aware of on a practical level.

If you don't understand what a Rhode Island Marital Settlement Agreement is, then here it is in a nutshell.

Rhode Island Marital Settlement Agreement (MSA) 

A Marital Settlement Agreement (MSA) is a written contract which is entered into and signed by both parties and contains all the items you and your spouse agree upon regarding the manner in which you are going to dispose of your marital estate (your marital assets and debts) and usually includes all the specific agreements you and your spouse have made to provide for your Minor Children.

A successfully drafted Marital Settlement Agreement that is signed and executed by both spouses to a divorce creates two specific benefits for the spouses.

First, a well-drafted Marital Settlement Agreement allows the attorneys to quickly authenticate the MSA by the testimony of the spouses and ask that the court accept it and approve it as a full exhibit.  

Assuming this is successful, the MSA eliminates the need for the judge to hear countless pages of details and conditions about all the assets, debts and considerations for the children, except those provisions in the Marital Settlement Agreement that are required to be placed on the record of the family court because they relate directly to the well-being of the Minor Children, Healthcare directives of the parties, and provisions regarding Alimony.  This, of course, saves the spouses considerable time on the witness stand and makes the proceeding flow much more quickly.

Second, many experienced Rhode Island Divorce Attorneys charge different rates for time spent preparing for a case and time spent "in court."  Time spent "in court" is usually more expensive.  Therefore, the shorter your uncontested hearing, the less money you will spend on the actual proceeding simply because you used a Marital Settlement Agreement.

Other benefits will be discussed in subsequent articles, including problematic issues and how they might best be addressed.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Rhode Island Divorce Lawyers - Young Children and Evidence!

Imagine that you have a divorce that is pending before the Rhode Island family courts.  Your children are visiting with their father and you find out from the children that your children have been in the presence of a third-party female that you aren't familiar with.  You don't know anything else other than what your children have told you that a woman has been around with their father from time to time.  There is no indication that this woman is over frequently but the children seem to like her and you are concerned that the children are being exposed to an improper influence.

You contact your lawyer and want to go before the family court to stop the exposure of your children to this woman because you think that it is a new girlfriend that your husband has.  Your lawyer is hesitant but files a motion to restrain and enjoin your husband from having the children in the presence of any woman who is not related to either of the parties.

Your attorney goes into court and the judge asks your attorney what evidence, if any, that has been obtained in support of the motion to restrain this father from having the children around ANY third-party female.  Your attorney mentions that he minor children have been telling their mother that this woman is around them when they have visitation with their father.  The judge asks if their is anything else.  The attorney answers "No".   The judge denies the motion.  The mother of the children is furious that the judge denied the motion when he or she was given the information.

The mother's attorney tries to explain the technicalities regarding the rules of evidence but she doesn't want to hear it.  The mother believes her children are telling her the truth and they have no reason to lie.  The attorney explains that minor children are not allowed to testify before the court due to their age and because they may be counseled by one or the other parent to provide an altered representation of the events.  The attorney also explains that children are not considered a reasonably reliable source of information before the court, especially when it comes to restraining an adult from his right to be around other people.  The mother is not happy and doesn't understand.

Evidence must be relevant to the subject matter of the case.  Evidence also must be presented under oath by a person capable of understanding the court's oath and the consequences of disobedience of that oath.  Evidence also must be reliable and cannot be hearsay or must be an exception to the hearsay rules of evidence.  Children do not fall within the standard of reliability necessary to satisfy a court proceeding in order to make a valid decision.  Children also do not have sufficient appreciation of what it means to take an oath and what the consequences may be if they do not tell the truth.

At best, the information from a child is very often only information that a parent can used to follow up on in order to verify or disprove what the child has said.

Young children and their statements are not normally considered evidence before the court, though the court has discretion to consider whether the child may be considered reliable and whether the child is old enough to appreciate the significance of the oath he or she must take.

In the end, it is best not to rely upon statements of minor children to win any hearing in family court.  Develop the information and be able to testify to it personally yourself and your are in a better position to prove your case.

Authored By:

  Christopher A. Pearsall
Money Making Entrepreneur and Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
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Copyright 2008.  Christopher A. Pearsall, Internet Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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Rhode Island Divorce Lawyers 

Rhode Island Divorce Lawyers Tip: Divorce History a Help!

Originally the Rhode Island Family Court and divorce proceedings were part of the Rhode Island Superior Court.  Though they remained a court of superior jurisdiction, the Family Court was created to address family related matters which in and of themselves comprised a substantial number of cases focused on the specific subject of legal matters dealing with relationships, the well-being of the family unit and contracts such as marriage.

Seeing the need for a separate court to address divorces and relationships which resulted in contract-like situations, the RI General Assembly established the Rhode Island Family Court system and its underlying structure.

It is helpful and important to know that Rhode Island Divorce lawyers often deal with very emotional issues for their clients because with marriage often comes divorce - the severing of the living situation, financial dependencies the parties have with each other, the children borne of the marriage, and the assets and debts accumulated during the courts of the marriage.

It is extremely help however to understand that the RI Family Court system arose out of the Superior Courts due, in large part, to the contractual nature of marriage.

A marriage, though not viewed by many people as such, is in fact a contract.  During that contract children may be born, assets may be acquired, debts may be accumulated and one of the parties may need financial assistance to survive the dissolution of the marriage contract.

Do you want to get through your divorce and move on with your life as quickly as possible?  Then as difficult it is, put aside your emotions and think about where the judge is sitting and what he or she must do.

Imagine your case the way the judge does.  The judge sits there day in and day out hearing all kinds of saga, including emotions, hard luck stories, bitter retorts, vindictive statements, heartfelt pleas to punish the other spouse and more.  Yet the judge isn't there to be your counselor or to take the court's time so that you can say your piece just to get it off your chest and feel somewhat better just for having said it.

The judge sits on the bench in a divorce case to help the parties reach an equitable result to the dissolution to your marriage contract.   

Think about the judge's role and take the most direct result to the resolution of your divorce that is fair and reasonable or that is acceptable to you.

While the judge sits on the bench he or she has a specific role, namely to identify and deal with the important aspects of what your marriage produced.  Usually it is fairly straightforward.

1)  Minor Children
2)  Marital Assets
3)  Marital Debt
4)  A Spouse's ability to financially survive after the divorce.

While it is true that each of these items has each of its own characteristics, a divorce can reasonably be converted down into these four (4) basic elements for the purposes of understanding how you can help yourself through it.

This is simply a practical tip that will help any party to a divorce, IF, you can do it. 

1)  Put your emotions of rejection, anger, feelings of fault, depression, and all other emotions about your relationship away as much as possible when dealing with your Rhode Island Divorce Lawyer.  Why?  Because lawyers address the legal issues the court will rule on and unless they have counseling training for mental health issues, they are not the best ones to voice those concerns too.

I am not recommending that you bury your feelings or that you don't deal with them at all.  I am suggesting that you find a good psychologist, psychotherapist, individual counselor, family counselor and/or marriage counselor and talk them out, whether they be feelings about your spouse's infidelity or your own insecurity or fears.  Your emotions should be dealt with by a professional skilled in mental health and emotional issues.

2)  Focus on what the judge must deal with in your marriage.  Those are the four points I have listed above.  These are at the center of your Rhode Island divorce.   If you can remove the emotion from these points and focus on them in the order they are listed and decide upon them in the order in which they are listed then you will have the best opportunity to resolve your divorce as quickly and and effectively as possible to move on with your life.

The Rhode Island family courts are not a forum for waging vendettas and punishing your spouse for the wrongdoing you believe he or she has committed that have caused you to feel hurt or embarrassment.  Move on with your life sensibly and maintain your self-respect and dignity.  In this way, your life will grow and be enhanced much more quickly.

Life is all about change but not all change is bad.  Divorce is a big change for spouses and for children but it need not be a bad change.  Divorce is not only an ending of something you are familiar with, it is the beginning of something new, a great adventure that may bring you untold happiness without measure.

Embrace it and Live for You!

Authored By:

  Christopher A. Pearsall
RI Divorce and Family Lawyer
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, A New Rhode Island Divorce Lawyer for a New Millenium

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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Rhode Island Child Support Modification Issues

Rhode Island child support becomes a frustrating situation not only for clients but also for family law lawyers.

EXAMPLE

Imagine that you are a client who has placement of three children.  Your ex-spouse is making considerably more money than when you divorced and the cost of living has risen. 

First, you contact a lawyer about your child support rights and whether modification is appropriate. 

Second, after finding out that modification is appropriate you speak with your ex-spouse who is unwilling to agree to give you a dime more than you are already receiving in court ordered child support.  So you resort to having your attorney send a letter to your ex-spouse asking for agreement of a small increase and that if you cannot agree that a Motion to Modify will have to be filed with the court.

Sounds simple enough doesn't it?  If the ex-spouse doesn't agree then you file a Motion to Modify and the court will modify your child support if you meet your burden of proof, namely that there has been a substantial change in circumstances since the last order was set.

Enter the ex-spouse who gets an attorney friend to serve the placement parent with 6 motions on the day a response is requested.  The placement parent's attorney files a Motion for Contempt and a Motion to Modify Child Support.

The ex-spouse concocts even more and more motions as the initial filing party and the Motion for Child Support which is truly the issue is placed on the back burner by the court.  Despite the efforts of the placement parent's counsel, more and more motions are filed by the ex-spouse to further cloud the issues and take the court on so many tangents that no judge could see the forest for the trees even if he or she wants to.

Here's the clincher for the attorney representing the placement parent.  How do you explain to your client after 3 years of fighting and after the ex-spouse's attorney has filed 35+ motions that there is no end in sight and the family court judge has literally refused to hear the placement parent's Motion to Modify Child Support despite countless direct requests that a hearing be held on the subject?

It is not only a child support issue but a legal frustration both for the client seeking the modification and for the lawyer representing the client.  This is not simply because it makes the lawyer appear inept when he or she may have done everything within his or her power necessary to obtain a hearing, but also because the client is entitled for child support relief for the benefit of the children.

I have had the displeasure of seeing several unfortunate circumstances similar to the one described.  In truth the problem is caused not only by the system but by lawyers who may be questioned as to whether they are acting within the boundaries of their ethical obligations and are abusing the system.

Unfortunately one lawyer usually has no control over another lawyer who is trying to bury a valid Motion for Child Support Modification under a mound of motions so deep   that the court will never see it and never address it.

The question then becomes, does the placement parent who is moving for the modification of the child support have an entitlement or right to a hearing on the subject. 

Rhode Island law regarding child support gives family court judges discretion as to whether to award the moving party child support retroactive to the date the motion was filed.  Assuming for a moment that the motion is heard 3+ years later by the court, what do you think the chances are that the non-placement party will be ordered to pay 3+ years of retroactive child support? 

As a Rhode Island lawyer, I can tell you quite frankly that it is slim to none that the placement parent will be given the rightful award retroactive to the date of filing because the amount of retroactive support is likely to be seen as so large as to appear punitive.  Since the court does not award child support as a punitive measure and judges are afforded this retroactive discretion the award of retroactive child support is unlikely at best.

As a lawyer, it is not an enjoyable task to explain to your client that a retroactive award of child support for the children is unlikely without even having had a hearing.  Perhaps the more difficult part for an attorney is realizing that when a family court judge fails to hear a Motion to Modify Child Support in a timely fashion and otherwise may fail to exercise his or her discretion to grant support retroactive to the date of the Motion to Modify, that judge is more than hurting the placement parent, that judge is depriving the minor children of support that they are entitled to from the non-moving parent.

It should always be remembered, both by lawyers and by the courts that child support, and thus Motions to Modify Child Support, relate to the parent's exercise of rights on behalf of the children.  Thus, if a Motion to Modify Child Support is granted, shouldn't it also be correct and proper to grant the child support retroactive to the filing date.  It causes one to question why a retroactive ruling is not always the case and why the family court judiciary are afforded discretion in this regard which deprives minor children of child support to which they are entitled.

What then can a lawyer or pro se individual do when faced with a Motion to Modify Child Support that he or she seemingly can't get before the court? 

Stay the course!  Do not diverge from the purpose of your motion to modify.  Continuously bring the court's focus back to this Motion over and over again.  Make every effort not to let the court get side-tracked by opposing counsel, opposing motions and other obstacles that are not as crucial to the well-being of the minor children.  Emphasize to the court that the longer the motion goes unheard the longer the children go without necessary child support in an ever worsening economy. 

This is a situation where you must have laser-like focus and purpose to insure to the best of your ability that the Motion to Modify Child Support is heard.   The court has often focused on the fact that one of it's foundational tenets is the best interests of the minor children.  Most assuredly the financial best interests of the minor children are among the most important.  Food, clothing, education, shelter and medical care are all part of the financial aspects of child support.  Without increases when warranted by the court and awarded by the court, the minor children suffer. 

Though there are no guarantees, this is the best avenue of focus, for your client seeking modification and for the children who NEED the modification.

Authored By:

  Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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