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.

RI Child Support Modification - A Benefit to Representing Yourself!

Many Rhode Island Family Court Judges have repeated the old maxim that "a person who represents himself in a legal proceeding has a fool for a client."

In fact, I've heard it myself in the Rhode Island Superior Courts as well.

Yet I've also heard several Rhode Island family court judges state something to the contrary when someone does, in fact, come into court with an attorney during a child support hearing.

Consider this brief example:

Myron had very specialized skills relating to the operation of a rare wrapping machine used in the packaging industry.  Myron worked for the same company for many years and therefore he earned a decent wage because there were very few people who could operate this particular machine.
Myron had two children that he paid his Rhode Island child support for religiously when he was suddenly laid off and his company filed for bankruptcy and dissolution. 

Myron looked for work in a downed economy while he continued to pay his child support.  When it finally became necessary Myron cashed in his 401k and paid huge penalties and interest on the distribution.  He set aside monies to survive on for a few months and pay his child support and to pay his rent.  He kept a small amount to see a lawyer and determine what he should do.  Ultimately he had just enough money to pay the lawyer to file a Motion to Modify his Child Support and to attend one hearing to argue on his behalf.

During all the time Myron kept his ex-wife apprised of what was going on.  His ex-wife was not happy.  She was used to receiving several hundred dollars in child support for their children and she had based their standard of living upon the continuance of that support.  She did not want those monies to stop coming in.

Myron continued to seriously look for work in Rhode Island's downed economy and branched out his search to Massachusetts and Connecticut when his search proved fruitless just in Rhode Island.  Myron applied at countless Temporary Agencies, construction companies, production facilities, etc . . . but had no luck.  The fact was was Myron's skill was so specialized to that one machine and area of the industry that he had no other skills to fall back on to generate the kind of income that had been used to pay his child support in the past.

Myron was still on unemployment when he went to the hearing to modify his child support.  Myron testified to his circumstances and his countless attempts to obtain employment.  Myron's ex-wife hired an an attorney who opposed the reduction and testified to the court that it didn't make sense that Myron could go from making a five figure income each year to remaining on unemployment for three whole months.  Myron's Rhode Island attorney did an excellent job explaining why this was the case.

Finally it came time for the decision on the Motion to Modify.  The motion was denied by the judge who agreed with the ex-wife's argument even though Myron had explained the circumstances and had proof of all his applications for employment on a daily basis. 

In the end on thing stood out.  The court ordered Myron to quickly find a job making approximately what he had been making before.  The court had unilaterally assigned this as Myron's "earning capacity" though no motion for such an assignment had been pending.

Myron finally stood up in frustration and spoke at this point, "Your Honor, but this isn't fair. It just can't be done.  I've been trying for 3 months every day.  I want to work, but I just won't be hired at my former wage by any company around here.  My work was just too specialized."

The Rhode Island family court judge responded:

"Sir, you had better find that job or the next time you will be before me on a contempt hearing for not paying your child support.  And frankly, if you can find some way to afford to come in here to argue your motion with a lawyer, then you can find someone who will hire you at your former wage.  It's that simple."

The hearing ended and Myron was understandably more discouraged than before.  Myron's ex-wife gleefully passed him in the hallway as if she had won a huge triumph and headed out the courtroom doors.

The question of this example is simple. 

Would Myron have done better if he hadn't hired a Rhode Island family lawyer to help him?  Or would Myron have been told he had a fool for a client and lost the hearing just the same?

I've seen a scenario similar to this on more than one occasion.  Ultimately it seems as though having a lawyer in most cases was used by the Rhode Island Family Court Judge as a basis for denying the parent's Motion to Modify.  In the vast majority of cases, that parent was a man.

In one case, a man's mother, who was in her 80's was able to get enough money together to pay for an attorney to go to one hearing for her son.  Remarkably, the result was almost identical to Myron's case.  The man was faulted for having an attorney but not having a job.

When Rhode Island child support is an issue and a spouse has lost a job that has very specialized knowledge and despite substantial effort the income the spouse was making has not been able to be replaced by a new job making the same or a similar amount of money, it may be best to go into family court on your Motion to Modify without an attorney.  It is indeed sad that the court might use the presence of an attorney as a stated reason to deny such a motion when at other times the court will turn around and fault a parent for not having an attorney and tell him (or her) that they have a fool for a client.

Rhode Island Child Support modification is the one area where it may sometimes be better to represent yourself rather than to hire a lawyer or even get a lawyer to help you "pro bono" (without a fee).

Remember, the court has no idea if you, or your mother paid for the lawyer or if the lawyer is representing you out of the kindness of his or her heart.  Yet the Rhode Island Family Court Judge may use it as a basis to put you in a no win situation.

Authored By:

  Christopher A. Pearsall
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, New Rhode Island Divorce Lawyers for a New Millenium

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