Motions and Orders

Orders in Rhode Island Family Court - When is an Order Really an Order?

Some people will think this is a ridiculous title for a RI Family Court Article, yet those attorneys in Rhode Island who read this will know that it's not as simple as it sounds.

What is a Pleading in Lay Terms?

It has been said that a Court speaks through it's "pleadings."  Once as an average Joe many years ago I had no idea what a pleading was.  So let's demystify it.  A pleading in it's usual sense is any document filed with the Court that asks for some type of relief from the Court.  It is also includes in its more common usage in lay terms with the Family Court in Rhode Island the written "Order " which is a document that tells the Court and anyone who physically reviews the physical file what the Court actually granted and what it did not grant.

How A Court Speaks . . . 

A Court speaks through it's "pleadings" because it is those physical documents that are contained in the court's file the history of the case and what was asked for, what was objected to, what happened and what was ordered.  Without that "paper trail", the court is silent and doesn't say anything, even if there were hearings, etc....  In other words, the things that happen in court need to be documented.

Hearings and agreements are usually documented by "Orders" which are either made by the Family Court Judge, or are agreed to by the parties and then verified and approved by the Family Court Judge to create an Order of the Court.

Talk is Cheap

Yet here is the issue many people miss if they represent themselves and even lawyers miss if they are not on the ball.  A judge may state what the Court has ordered based on a motion filed by one of the parties or by the judge's own discretion. . . And yes, the Court's Stenographic recorder may type down every word that the Judge says he or she is ordering.  You'd think that would be enough, wouldn't you?  

If you bet on that, you would be wrong.  A court speaks through its "pleadings."  Always remember that.  What it really means is this.  The parties need to take what the Judge stated and submit a formal document called an "Order" to the Court that must be approved by the Judge and Entered by the Clerk.  That is how any clerk, and any judge, any mediator and even any person of the public will know what has truly happened as the case went on.  Without the paper trail, the court looks silent!

When an Order REALLY becomes and Order!

So when does and Order really become an Order?  Well, if a Court speaks through its pleadings and the pleadings are the paper documents that make it into the file, then guess what the important part is!  Yes, you guessed it... according to our Rhode Island Supreme Court as of the date of the publication of this article, an Order is truly an enforceable Order when the Order has been presented to the court and Approved with the Judge's signature and then Entered by the Clerk's signature so that it becomes an official part of the court's file and the history becomes part of the files docket.

The Burning Question

So, if you go to court on your Motion to Compel Production of a Computer and the Judge Orders that the Computer be produced "immediately", when is that Order in effect?

Lawyers Have a Different Standard 

As lawyers I'll be honest and say that the more reputable family court attorneys respect the statements of the judge immediately because we are officer's of the court.  However, what if the person who is supposed to produce the computer doesn't do so for four (4) days?  What if awritten order has been presented but not signed by the judge yet because the other party has 7 days to object to the wording in the Order by the Rules of the Rhode Island Family Court.

What does the law have to say about that.  Can you hold the person in violation for not producing the computer immediately?  Actually, no you can't ...unless the opposing party doesn't object to your Order and the court then signs it and the clerk of court approves it.  Once that happens, can you hold the person responsible?  Absolutely!  In fact, you can even hold them responsible all the way back to the day the judge said the Order in court because the opposing party had agreed with your Order but didn't abide by it.

What to Take With You from This Article.

So what is the long and the short of this article?  If you are going to take anything from this at all then it is THIS!  An Order is an Order when it is signed by the Court and Entered by the Court Clerk.  Once that is done, then you can take action to enforce it even as far back as the date the Judge Ordered it in court because it becomes retroactive to that date.  In Court, paper documents are everything.  The faster the Order is processed, the faster it is set in stone (at least until it is modified by the Court) and the faster it is legally enforceable if the other party is not complying.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

I'm an Affordable Kent County Family Law Lawyer serving Coventry, West Warwick, Warwick, and the surrounding Kent County Area and I am here to help you when you need me.

Call me for your reduced-cost legal advice session at (401) 632-6976. 

Discover the difference and experience why so many divorce and family law clients have been so happy with me for more than a dozen years.

A Rhode Island Family Lawyer's Perception on Protection from Abuse Orders.

Rhode Island law provides for persons subject to physical violence or threats that create a reasonable fear of imminent physical harm to obtain from the court an Order of Protection for that physical violence or threat of imminent physical harm.

This Order is most often sought by women who represent to the court that they are in fear of their husband or significant other based upon some recent conduct he has done.  The Order typically restrains and enjoins the man from harassing, molesting, stalking, cyber-stalking or in any way contacting the complainant at home, at work or on the street.  The  Order may also require the threating party to leave the marital home or the residence where both parties may reside until the matter may be heard within three (3) weeks after the judge grants the initial Order based solely upon the claimant's affidavit.

Perhaps the biggest mistake serious complainants who have been threatened or harmed make is to appear at the hearing three (3) weeks later without a Rhode Island family law lawyer and dismiss the complaint.  This could be for any number of reasons, including a change of heart, a continued hope that the abuser will change, guilt associated with excluding the father from his home or children, or pressure from other family members.

I mention this because most often what occurs is this.  The abuser is allowed to continue the course of conduct he or she has caused or is not taught that this conduct is unacceptable.  Abusers typically will continue to contact the complainant even after they have been served with the Protection from Abuse Order.  Regrettably, the complainant who has obtained the Protection from Abuse Order allows this conduct and does not call the police to have the Order enforced.  Unfortunately, it is often because the "contact" is often apologetic, endearing and pleading by the abuser in an effort to get the complainant to do exactly what I have mentioned here, namely to go to the court hearing in three (3) weeks and drop the Protection from Abuse Order.

What the complainant should be considering are questions such as the ones listed below in order to avoid making a big mistake.

1)  How long have you had a relationship with the abuser?

2)  How extreme was the conduct of the abuser when compared to the length of the relationship

3)  Is this a one time instance of abuse or has the abusive conduct been gradually increasing?

4)  If you have children, will this choice be the best for the child or children or will you be subjecting them to further abuse?

5)  Are you being guilted into this decision?  Or are family members pressuring you to drop this?

6)  Do you honestly believe that the abuser has changed in just a few short weeks

Complainants should seriously question their decision to drop a Protection from Abuse Order.  The law is there to protect you.  If your complaint is genuine, the use of the law is appropriate and you could return to court in the future to ask the court to remove the Protection from Abuse Order.  However, it is unwise to disillusion yourself into thinking that the abusing party has changed in such a short period of time.

To the contrary, if you have used the system simply to teach the "alleged abuser" a lesson, then do the court and everyone else a favor and drop the restraining order.  You are wasting your time, the court's time and resources and misusing the law for your own purposes which the law wasn't intended to address.

Authored By:

  Christopher A. Pearsall
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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