What’s the Difference Between Legal and Physical Custody?

October 9, 2009 By

Many states have differing terminology for legal and physical custody. In Rhode Island, legal custody is the ability to have input in major life decisions of the children in question. A person with “sole custody” has sole legal custody, and does not need to include the other parent in the decision making process things like health, education, or religious upbringing issues of the children. Couples who share “joint custody”, or joint legal custody, are required to keep each parent “in the loop” of such issues, and both parents also have the right to access information relating to those issues.

As an example, if the kids are living with dad primarily, and the parties have joint custody, then dad would need to communicate with mom about major issues, such as health, education, or religious affairs. Dad does not need to comply with mom’s wishes: mom does not have a veto ability. Mom simple must be kept in the loop. Mom on the other hand, would have the ability to, say, go to the school to speak with the teacher, or get copies of medical records, which she would not be able to do if dad had sole custody.

Physical custody, in Rhode Island, is generally described as “possession” or “physical possession.” This term described which parent is the primary caretaker of the children. The “non-custodial” parent would pay child support to the parent with “possession,” and their time with the children would be described as visitation.

Don P. Moyer, 401 461-7800, Moyer Divorce Law

Filed Under: All Family Court, Custody & Placement Tagged With:

How Long Does a Simple Divorce Take?

October 9, 2009 By

Rhode Island has a “track” system for divorces, meaning that a divorce is either on the “Nominal Track” or the “Contested Track.” The party filing the divorce first may choose either track from the beginning. If they choose the nominal track, they will be given an initial (and hopefully last) hearing date that will be approximately 11 week from the date of filing.

If they choose contested, they will get a case status hearing date that will typically be 13 to 16 weeks from the date of filing. If the case is on the nominal track, and the Defendant is not actively disputing and issues, the case may go forward as a “Nominal Hearing” on the 11 week date. If so, you will be finished with court, unless something else comes up before the Final Decree is entered. If there is a dispute at the 11 week date, the case becomes “Contested” automatically, and you will be given a case status hearing date several weeks out.

Assuming a nominal hearing, then the parties must then wait 90 days for the Final Decree to enter, assuming the case was filed under “irreconcilable differences.” The other common grounds for divorce is “living separate and apart for the space of at least 3 years.” If you file under this statute, you will need to wait only 20 days from the nominal hearing date to enter the final decree.

Don P. Moyer, 401 461-7800, Moyer Divorce Law

Filed Under: All Family Court, Divorce Tagged With:

How do the Courts Decide Custody?

October 9, 2009 By

The Rhode Island Family Courts base custody and possession decisions on the “best interest of the child.” The pivotal case Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) states that certain factors must be weighed in the best interests of the child analysis when relevant. These factors include:

1. The wishes of the child’s parent or parents regarding the child’s custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to the child’s home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child’s home environment.
7. The moral fitness of the child’s parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

Don P. Moyer, 401 461-7800, Moyer Divorce Law

Filed Under: All Family Court, Custody & Placement, Divorce Tagged With:

Can a Child Support Order be Changed?

October 9, 2009 By

Child support may be modified after one of three circumstances occur. In RI, child support is based on the parties income and available resources support and that information, along with some other factors such as daycare costs, medical insurance costs, or the number of other minor children a party is responsible for, is what is plugged into the “guidelines” to calculate child support. There are three general events that can occur that will trigger the ability to review and modify child support.

Opening the Door

If there is a “significant change in circumstances” as it related to the factors set above, then the courts will “open the door” to a review. Notice that part one is to open the door for a review. Whether there is a change after the review is the second part. What constitutes a significant change in circumstances is up to the judge, but can safely be assumed to include changes in income by 10% up or down, changes in the number or minor children, or other changes in the variables used to originally calculate the support order.

There are two other ways to “open the door” for the right to review child support, and technically, they are “significant changes in circumstances” as first described above. First, by statute, the courts will consider there to be a change in circumstances automatically if it has been more that five years since the existing child support order was entered. The other method or opening the door to a review occurs automatically every time Child Support Guidelines are updated, which occurs every five years or so.

Recalculating Support

(Try our RI Child Support Calculator)

Now that the door is open for review, the courts will recalculate support based on all the factors set out at the beginning of this topic to come up with the new support order. Generally, is you get this far there will be a change, however, it court be very small.

Example: Bob and Lisa have two children and have been divorced for two years. Bob is paying child support to Lisa per the “guidelines.” Lisa has another child with her new husband, and Lisa gets a pay raise of 20%. Bob files for a change in support. Both the new child and the pay raise constitute a significant change in circumstances. The door is open, but the support only changes by 50 cents per week. In this case the pay raise would by itself reduce Bob’s support obligation, but when calculating support, Lisa now gets a deduction from her new income for her new child, balancing out the change.

Don P. Moyer, 401 461-7800, Moyer Divorce Law

Filed Under: All Family Court, Child Support, Modification Tagged With:

What Are the Grounds for Divorce?

October 2, 2009 By

The two most common grounds for divorce in Rhode Island are “Irreconcilable Differences” and “Living Separate and Apart for the Space of Three Years”. The other, older, grounds for divorce are as follows:

(1) Impotency;

(2) Adultery;

(3) Extreme cruelty;

(4) Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;

(5) Continued drunkenness;

(6) The habitual, excessive, and intemperate use of opium, morphine, or chloral;

(7) Neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and

(8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.

If you need a family law lawyer who can help you navigate through these often complex divorce law issues, call Don P. Moyer, 401 461-7800, to get started. Moyer Divorce Law.

Filed Under: All Family Court, Divorce, Fault Issues Tagged With:

What Does the Court Consider When Dividing Assets in Divorce?

October 1, 2009 By

The Family Courts in Rhode Island consider certain factors set out in R.I.G.L. 15-5-16.1 which specifically deals with this question. The factors are as follows:

(1) The length of the marriage;

(2) The conduct of the parties during the marriage;

(3) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates;

(4) The contribution and services of either party as a homemaker;

(5) The health and age of the parties;

(6) The amount and sources of income of each of the parties;

(7) The occupation and employability of each of the parties;

(8) The opportunity of each party for future acquisition of capital assets and income;

(9) The contribution by one party to the education, training, licensure, business, or increased earning power of the other;

(10) The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage;

(11) Either party’s wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and

(12) Any factor which the court shall expressly find to be just and proper.

The court will weigh these factors and make its decision.

Don P. Moyer, 401 461-7800, Moyer Divorce Law

Filed Under: All Family Court, Asset & Debt Division, Divorce Tagged With:

Dupre v. Dupre (857 A.2d 242 (RI 2002))

September 14, 2009 By

Link to Case PDF

This pivotal case is the centerpiece in any litigation regarding relocation of children out of the State of Rhode Island.  The case came about when a judge implemented a trial Justice denied a petition to allow the removal of the child from the jurisdiction on the basis that there was “no compelling reason to do.”

The RI Supreme considered that standard incorrect, and laid out certain factors to be considered in any relocation matter.  With the understanding that the “best interest of the children” is the foremost consideration when [Read more...]

Filed Under: All Family Court, Child Relocation, Custody & Placement, Interstate Enforcement & Modification Tagged With: ,
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