Part Three of our Four part series addresses children and custodial issues that may arise throughout the divorce process. This informational series will be useful to assist in reducing problems while obtaining your divorce in Rhode Island.
1. Children – unless there are special circumstances, generally both parties are granted joint custody with physical placement of the minor child (children) placed with either one or the other party and the non-custodial parent being granted visitation rights. If custody or placement become contested issues, there are a minimum of eight factors that the court must consider in the best interest of the child or children in determining custodial, placement and visitation rights.
2. Custody – In Rhode Island there are two types of Custody:
a. Joint Custody – both parties share more or less equal decision making in respect to the major health, education, welfare and social aspects of the child. Both parties have joint rights to the child. The custodial parent makes most of the minor, day to day decisions. The non-custodial parent however, has a right to be involved in major decisions concerning the child and has a right to any and all information and documents relating to the child’s health, education, welfare and social activities. It is important that both parties keep each other informed as to each other’s phone numbers and addresses. If the non-custodial parent objects to some action on the part of the custodial parent, it would be necessary to file a motion to prevent or terminate the action on the part of the custodial parent.
b. Sole Custody – only one party is granted custody due to extenuating circumstances such as, but not limited to:
(1) alcohol and/or substance abuse,
(2) medical or mental disability or infirmity making it impossible or difficult for the non-custodial parent to participate in the decision making process regarding the health, education and welfare of the child,
(3) criminal problems,
(4) domestic abuse problems,
(5) unfamiliarity of the other parent with the child,
(6) neglect or abuse of the child,
(7) non-custodial parent has no interest in the child.
3. Placement of the Minor Children–
a. Generally: the children are placed with the mother. However, it is not uncommon for children to be placed with the father. If the parties disagree then the Rhode Island Supreme Court cases set out the eight factors that have to be considered and a decision by the court will be made as to whom the child or children are placed with in the best interest of the children.
b. Shared: infrequent as this concept is it is often difficult to make it work smoothly, the parties work out an arrangement where the child or children go back and forth between parents. Some of the reasons are financial, educational, employment and availability of either one of the parents.
a. Generally – depending on the age of the minors involved, usually the non-custodial spouse has overnight visitation rights every other weekend, maybe one or two afternoons a week, and maybe an extended period during vacations.
b. Reasonable Rights – if the parties have a good relationship then occasionally, no specific times will be set forth in the decree, the parties can work it out depending on their respective schedules.
c. Special Circumstances:
i. Disagreement between the parties as to time and place can lead to court intervention through mediation, home studies and possibly a court hearing with both parties presenting both lay and expert witnesses – a very expensive procedure. The court again takes into consideration at a minimum, the eight factors delineated by the Rhode Island Supreme Court.
ii. Supervised visitation can be ordered when the non-custodial spouse has provable, personal issues that place the child at risk or during a re-introduction period when the non-custodial parent has not seen the child for some time and/or the child is very young.
iii. Termination of Visitation Rights can occur if it can be demonstrated that the non-custodial parent for among other reasons:
(1) becomes abusive or neglectful of the children,
(2) is a substance abuser in the presence of the children,
(3) frequently misses or is late for visits
d. Special Circumstances regarding children – the judges that rule over divorce issues, in particular children, have different points of view. Some are more strict than others, although most are fairly objective. Depending on the judge, the following are examples of what may or may not be important:
i. Visitation in the presence of an unrelated adult of the opposite sex,
ii. Leaving the state with the children for an extended period of time without the consent of either the other parent or the Court,
iii. Living with someone else before the divorce is final and expecting visitation, overnight or otherwise,
iv. Living with your wife (possibly for financial reasons) during the divorce and/or at the time of the hearing date.
Please stay tuned for the next part in our “Thinking of Divorce” series pertaining to child support, alimony and the division of assets. Of course, if you need immediate assistance or information please call one of our expert divorce attorneys at (401) 725-1810.