Attorney Christopher A. Pearsall

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.

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.