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Rhode Island Child Custody
Make Sure You Know Both Types of Custody?

By: Christopher A. Pearsall, Attorney
aka "Rhode Island Divorce Coach" ℠

Regarding minor children there are two types of custody referred to in Rhode Island Supreme Court Cases. It is important to understand this when asking a lawyer questions because some lawyers may presume you mean one type of custody when you are actually asking about the other.

First, I will address legal custody.

Legal Custody - This is the legal right to participate with the other parent or guardian in making important decisions regarding your minor child or children. The presumption is, that all things being equal between the parents/guardians, each parent should have a 50/50 say regarding the various categories of important decisions. By way of information, when each parent or guardian has an equal say in the important decisions regarding a minor child this is called “Joint Legal Custody.”

Legal Custody typically involves four (4) distinct areas of decision-making.

1) Religion - An important issue in this area of decision-making would be something such as, “Should our child/children be raised Catholic or Jewish?”

2) Education - An important issue in this area of decision-making would be something such as, “Should our child go to public school or a private school?”

3) Medical/Healthcare - An important issue in this area of decision-making would be something such as, “Should our child have this surgery or medical procedure at this time or not?”

4) Well-Being of the Minor Child - This is a catch-all category because neither the law makers nor the RI Supreme Court (in my state’s case) could ever fully outline all of the important issues that may affect the well-being of the Minor Child. This area of decision making can involve a variety of things ranging from “Should our child play in a dangerous sport?” OR, “Should our child change school districts” (for instance if the child has difficulty coping with change). It may perhaps even involve whether a child should move with a parent to another jurisdiction or country.

There is also physical custody which is closely related to but not identical to the concept of "placement." Even though many lawyers use these terms interchangeably, they are not identical.

Physical Custody/Placement - Physical Custody is the right of a parent or guardian to have physical custody of a minor child or children at a specific time or times. Physical Custody when it relates to having physical custody of a minor child or children for more than 50% of the time is known as "Placement." Placement is where the child or children have their primary residence where they live.

It is important to know the difference between these two types of custody because one is primarily a legal right while the other relates substantially to the physical location of a child at a given point in time and where a child lives when the amount of time at the physical location of one parent is more than 50%.

Both of these concepts affect how the family unit will function and the rights of both the parents and/or guardians as well as the children. It also has affects on extended family members such as grandparents.

What should you expect regarding your legal custody, physical custody or placement situation? If you don't know all the aspects and ramifications with respect to what you can agree to, feel free to call me for a reasonably priced Legal Advice Session.

Remember, if you don't know your rights, you might as well not have any.
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3 Mistakes Represented Clients Can Avoid Making
Bad Courtroom Decorum Can Kill Your Case

I realized 10 years ago that not everyone could afford a lawyer to represent them in court. Sure, there were some organizations that provided volunteer lawyers or lawyers who would take on a Pro Bono case in Rhode Island. The trouble was that they were quickly saturated with people who wanted a free lawyer for their case. Yet there wasn't a service that I could find that offered help to individuals so they could represent themselves properly in their own divorces. So in 2006 I became the Rhode Island Divorce Coach to do just that less than the cost of typical representation.

Recently I was reminded of a few lessons I give people in courtroom decorum. As lawyers I suppose we treat these things as commonplace or perhaps even common sense. They aren't common sense to everyone though. Sometimes, they aren't followed by long time practicing attorneys.

I've always thought stories are the best teachers so let me give you an example. Keep in mind that " . . . " means that someone was trying to continue talking.

*The Divorce of Todd McFadden vs. Sarah Jacobsen

Todd McFadden and his wife Sarah Jacobsen were getting divorced. Todd was the filing party ("Plaintiff"). Sarah was the party served with the initial Rhode Island divorce complaint ("Defendant"). Todd's lawyer filed a Motion for Temporary Orders. Sarah's lawyer objected to that motion.. Here is how the dialogue went in the courtroom.

JUDGE: So we're here on Plaintiff's Motion for Temporary Orders, correct counsel?

Todd's Lawyer: Yes, your Honor.

JUDGE: Okay counsel, I'll hear from you first. Then I'll hear from Defendant's counsel.

Todd's Lawyer: Your honor we are moving for Orders allowing only the Plaintiff to be the one to bring the two minor children to their soccer practices and games.

JUDGE: Reasoning counsel?

Todd's Lawyer: The Defendant mother already has a boyfriend only 4 weeks into this divorce. She has been exposing these minor children to this boyfriend. She and the boyfriend pick up and drop off the children to their soccer practices and games. It's our position and hopefully the court's that to prevent confusion or irreparable damage to the children at this delicate time in this family's life that it's in the best interests of the children that the Plaintiff be the one who drops off and/or picks up the children.

JUDGE: Okay, defendant's counsel may I hear your objection.

Sarah's Lawyer: Thank you. My client's objection is that she has always brought the children to their soccer practices and games and to change their routine would be detrimental to the children's routine during the divorce.

JUDGE: But counsel I'm sure you understand that exposing the minor children to her boyfriend before this case is finished is poor judgment and could damage the children and . . .

Sarah: He's not my boyfriend. He . . .

Todd: Judge, he is too her boyfriend! C'mon Sarah, I've had an investigator following you since before I filed for divorce.

JUDGE: Counsel, kindly get your client's under control. They should be aware how we do things in a court of law.

Both Lawyers: Yes, Judge.

[Each lawyer whispers to their client.]

Judge: So, we have mom who's always been bringing the children to soccer practices and games routinely but now she's bringing them with an alleged boyfriend who supposedly the Plaintiff can verify with a private detective who has been following them. So I'd . . .

Sarah's Lawyer: Judge we don't think he's been having her followed at all and . . .

Judge: [Facial Expression at Sarah's lawyer) As I was saying, I'm be inclined to want to keep mom bringing the children for consistency since she's always done it [Todd whispers to his lawyer] yet because of this boyfriend issue . . .

Todd: What? But she hasn't....

Todd's Lawyer: [Putting his hand on Todd's shoulder to silence him.] But judge mom hasn't been routinely . . .

Judge: [To Todd's Lawyer]: Counsel, was I speaking? I believe I was and ....

Todd's Lawyer: Yes Judge, but...

Judge: That's enough. I've heard you both. Plaintiff's Motion is denied. I'm ordering that the Defendant mother shall continue to bring the minor children to and from their soccer practices and games but she is prohibited from bringing any unrelated person of the opposite sex with her on pickups and drop offs.

Todd's Lawyer: But . . .

Judge: Yes.

Todd's Lawyer: Judge please note my exception to your decision for the record.

Judge: So noted.

You would be amazed how big some things that seem so small can be so big. Hopefully you were able to identify the three (3) big lessons in courtroom etiquette that can be learned from this simple little exchange. After you look at them, see if you can figure out which things made the biggest difference.

*1. Let Counsel Speak for You: If you've hired a lawyer, then you've hired him or her for a reason. Lawyers are hired for their expertise in a particular area of law including the manner in which the court should be addressed. In this case it was divorce and the family court system. So let the lawyer do what you hired him or her to do. When you have a lawyer a client who jumps in and speaks directly to the judge without being asked to do so directly by the judge or their lawyer is considered being rude and shows a lack of respect for the court. Whatever your good intentions may be, keep your mouth shut until your lawyer or the judge ask you to address the court, otherwise you are most likely going to hurt your case. If you look back in the dialogue above, you will see that both Todd and Sarah addressed the judge directly and the judge actually scolded their attorneys and told them to get their client's under control. They both hurt their cases by not having their attorneys address what needed to be said instead of speaking out of turn without the court's permission.

2. Don't Speak to the Other Party: Unless the court has requested that there be direct discussion between the two parties while in a court hearing, don't do it! , then do not directly talk to the other party. If you were going to directly talk to the other party in the first instance you should not be in court at all and you should have been able to resolve the matter without even being in court. Once again, this is considered rude and disrespectful to the court, especially when you have hired a lawyer who is responsible for presenting your case to the court. In this case look at the testimony. Todd directly addressed Sarah and while the tone isn't evident the wording leads us to believe that he was using a condescending tone. Todd hurt his case with the judge here and started sending his own motion on a downward spiral.

3. Don't Interrupt the Judge: When the judge is talking, even if what the judge is saying seems wrong, you do not interrupt the judge. That is not only rude but it is one of the biggest offenses to a judge and with good reason. You are before the court asking for something. If the judge is speaking and you interrupt, then you have now offended the very person that you are asking to give you some relief. If you were going to ask someone for a short term loan and before you gave them the loan you did something that was a slap in the face to the person, you just decreased the chances of getting that loan by more than 50%. The same is true for court. It is a place of respect. You disrespect the person running your hearing in that court and it's just like a slap in the fact. Here, after Sarah interrupted the judge, Todd continued the interruption. Why is that significant? Because Todd should have had enough time and common sense to mentally process that Sarah had done something wrong that he should not do, namely interrupt the judge. Yet he not only continued the interruption of the judge, making it longer and wasting the court's time but he also interrupted Sarah and spoke directly to her, neither of which he should have done. Todd compounded the problem. If Todd had looked at the judge he might well have caught a cue from the judge's facial expressions or mannerisms that he/she was not happy about it.

Which way to do you think the judge would have ruled if Todd had interrupted the judge and spoke directly to Sarah? If he had asked his attorney to address the issue and the attorney had done so correctly, what to you thing the result would have been then?

Can you see that the judge seemed to be going in Todd's direction until he and the lawyer opened their mouths in a disrespectful manner to the court?

Do you think Todd's lawyer could have salvaged this motion and won it?

When you are represented by a lawyer in a Rhode Island divorce case or otherwise, take your cues from the lawyer. It is all too easy to let your emotions get the better of you and make grievous mistakes in etiquette that end up losing you a motion or your entire case.

In my professional opinion, this motion was not lost in this case based on the law, facts or evidence. Todd's motion was lost in this court hearing solely due to disrespect of the court and the presiding judge.

*Note: Any resemblance to any real persons or situations currently before the court is merely coincidental and/or accidental.

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What Can I Do To Make My Divorce Cheaper?
The Rhode Island Divorce Coach Answers

A Question on

I saw this question on Quora and I wanted to be tremendously helpful. Whoever you are who wrote this, I wanted to give you the holy grail. Unfortunately it’s not possible because each person’s life is different.

When you ask this question it causes me to ask several more. For instance,

1.) Are you trying to save costs or legal fees?
2.) Are you representing yourself or do you have an attorney?
3.) Do you or your spouse have an attorney?
4.) Are you and your spouse on speaking terms to work things out?
5.) What state or country are you getting divorced in?
6.) Do you have many assets and debts or just a few?
Do you and your spouse both work? Can you both support yourselves?
7.) What is your financial situation?
8.) For every question you have I have 10+ more.

Saving money in a divorce is dependent upon the circumstances. To properly answer your question a person would literally have to play what I call the “What If Game”.

In other words you’d have to imagine every possible situation and then put “If” at the beginning of the answer.

For example,

1. If you are unemployed and you are going to be the one filing the divorce complaint, check with the court you will file in to see if they allow you to file a Motion to waive the filing fee and sheriff or constable’s service fee.

2. If you have a house and you are on good terms with your spouse, decide together what you want to do with the house and the mortgage and then consider if you can take care of that transaction before you file for divorce so you can make it a non-issue in any divorce settlement (thus, it saves any arguing time if lawyers are involved)

3. If you can’t afford representation by a lawyer, see if there is a lawyer in your area that provides divorce coaching which is less costly yet should allow you to find out your legal rights and help you through your process correctly.

After handling divorces and providing divorce coaching in Rhode Island for almost exclusively for almost 17 years I could go for pages and pages with these scenarios. The answer to how you can save money in your divorce is related specifically to your circumstances.

If you provide more circumstances, I would be happy to try to help you more than these few things, because the response could literally be endless. My Rhode Island Divorce Coaching practice has literally been about saving people money. Perhaps there is someone like me in the area where you are.
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QUESTION: Can a person remarry in Rhode Island without getting an official divorce decree, on the pretext of having an official foreign divorce issued?

ANSWER: Dear Writer, I’m not sure what you mean by “on the pretext of having an official foreign divorce issued.”

A “pretext” is when you give one reason for doing something when you actually have another reason for doing it. For example, “The police obtained a warrant to search Mr. Jones’ house from the judge on the pretext that stolen merchandise would be found there when they actually wanted the search warrant to search the house for drugs.”

If you meant your question to state, can you remarry legally in Rhode Island when you are still married in another country simply by representing that you have an official foreign divorce decree issued by another country, then I believe the answer is “No.”

If you are married to one person, you must first obtain a divorce before you can marry another person in Rhode Island. If there is any exception to this rule at all I most certainly would want someone to enlighten me as to how this is possible based on Rhode Island law.

Under Rhode Island law, as of the date of this response the act of bigamy which is getting married to another spouse when you are already married is a crime.

Note to the Writer of this Question: For purposes of accuracy you may need to revise your question to make sure you phrased it correctly or you may wish to give a hypothetical example for purposes of clarity.
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Can Child Support Be Beat? Some think it can! However, it's not over until it's over!
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Child Support in the Rhode Island Family Courts
If You Pay Child Support Can You Get the Tax Deductions
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Rhode Island Post-Judgment Issue of Childcare Payments
Can Your Ex-Spouse Obligate Your to Pay the Provider?
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