Child Custody and Visitation Laws in Rhode Island

If you're splitting up with your child's other parent, you'll have to deal with the questions of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Rhode Island law deals with these issues.

Types of Child Custody in Rhode Island

There are two types of custody in Rhode Island: legal custody" and "physical custody. With each type, parents may have joint custody, or one parent may have sole custody.

Legal Custody in Rhode Island

Legal custody concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. When a parent has sole legal custody, that means the parent may make those decisions unilaterally, without getting the other parent's consent. When parents have joint legal custody, they both have a right to be involved in the decision-making process.

Joint legal custody is by far the preferred outcome in custody cases, because it enhances the active participation of both parents in the child's life.

Physical Custody in Rhode Island

Physical custody (also known in Rhode Island as "physical placement") refers to where a child lives. It also involves parents' responsibility for the routine daily care and control of their children, such as bathing, disciplining, or preparing meals.

When a parent has sole physical custody, the child lives with that parent (the custodial parent), while the noncustodial parent will usually have visitation (more on that below.

With joint physical custody the child stays with each parent for periods of time during the year. But it doesn't necessarily mean each parent has an equal amount of time with the child. Although you'll occasionally see situations where the child literally spends half the year with each parent, any number of variations are possible. For example, a child can spend two nights per week and every weekend with one parent, and the remaining time with the other. The bottom line is that a joint physical custody arrangement should be acceptable to both parents and serve the child's best interests.

As a practical matter, joint physical custody works best when the parents live close to each other. This tends to reduce problems, especially transportation issues that can arise when a child actively participates in sports or other after-school activities.

Parenting Plans in Rhode Island

Parents always have the option of agreeing between themselves on how they'll handle child custody and visitation issues. In facts, courts prefer and encourage parents to do this. In order to have the agreement made part of a court order, they'll need to spell out the details in a written "parenting plan," sign it, and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests.

Ordinarily, the more detailed the parenting plan is, the better. This tends to reduce the possibility of confusion or, in some cases, disputes over the original intent of some of the agreement's terms. Rhode Island doesn't have official court forms or legal requirements for parenting plans. But some of the issues typically addressed in these plans include:

• which parent's home will be considered the child's primary residence (in a joint physical custody situation, this may be important if a school district needs proof of a child's residency)
• where the child will spend vacations, school breaks, holidays, birthdays, and so forth
• what happens if there needs to be a change to the parenting schedule, particularly because of last-minute issues like a child's illness
• how will parents communicate with each other regarding the child (such as by email, text, or phone), especially if there's hostility between them
• how often and by what methods a parent may communicate with the child when the child is with the other parent
• the visitation drop-off and pick-up times and locations
• who will provide transportation for visitation, as well as to and from school and extracurricular activities
• if a parent needs a babysitter or other temporary child care, whether the other parent will have the "right of first refusal" to serve in that capacity
• what happens if one parent must relocate (more on that below), and
• how the parents will resolve future disagreements about the parenting plan (including any changes), such as using mediation or some other dispute resolution method rather than going straight back to the court.

An internet search likely will provide you with plenty of other suggestions for what to include in your parenting plan. Also, if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting agreement. (You might ask about this when comparing online divorce services.)

Although parenting plans usually address what will happen after a divorce or separation, be advised that while a divorce is in progress, Rhode Island law requires both parents to help their children maintain contact with the other parent. (R.I. Gen. Laws § 15-5-14.1(i) (2023).)

How Do Rhode Island Judges Make Custody Decisions?

When parents can't reach an agreement on custody or visitation, a judge will have to resolve the issue, based on what's in the child's best interests. Unlike most other states, Rhode Island's laws don't provide guidelines for how to decide what's best for children. But the state's supreme court has picked up the slack by listing certain factors a judge must weigh:

• the parents' wishes
• the child's preference, if certain conditions are met (more on that below)
• the child's interactions and relationships with the parents, any siblings, and anyone else who may significantly affect the child's best interest
• the stability of the child's home environment
• the child's adjustment to home, school, and community
• the mental and physical health of the child and the rest of the family
• the parents' moral fitness, and
• each parent's willingness and ability to ensure that the child can have a close and continuous relationship with the other parent.

(Pettinato v. Pettinato, 582 A.2d 909 (1990).)

Does a Parent's Gender Play a Role in Rhode Island Custody Cases?

No. Rhode Island doesn't establish a preference for either parent because of the parent's gender.

Can Children Express a Custody Preference in Rhode Island?

In Rhode Island, a judge will only take a child's custody preferences into account if the child has enough intelligence, understanding, and experience to express a reasonable preference. Obviously, that's a subjective standard. So judges will decide based on their experience, as well as their observations in each case.

Ordinarily, the older children are, the more weight judges are likely to give their opinion about which parent they want to stay with most of the time, and how much time they want to spend with the other parent. But regardless of age, the judge won't follow a child's wishes if doing so wouldn't be in the child's best interest.

The reasoning behind a child's wishes is key. For instance:

• If a child simply wants to live with the parent who's more lenient or gives more lavish gifts, the judge probably won't give that child's preference much weight. But if a child expresses a desire to live with the parent who's more loving or engaged in parenting (for instance, by regularly helping with homework or accompanying the child to sports and other activities), the judge is much more likely to take that child's wishes into consideration.
• If a judge believes that a child has been manipulated or pressured to choose one parent over the other, the judge will probably discount the child's stated preference.

Children usually don't have to testify in court to share their opinions about custody. After all, they're basically choosing between their parents, so having them verbalize that choice in front of them could be a traumatic experience.

So how is the child's opinion conveyed to the judge? Rhode Island leaves that up to the judge. Some judges will meet with the child in the judge's chambers (office), outside of the presence of the parents. Rhode Island law also permits judges to appoint an attorney or a "guardian ad litem" (GAL) to represent the child's interests. The GAL will investigate the circumstances of the case and, if the judge requests, prepare a report containing:

• the sources used in the investigation
• a statement of the child's emotional, medical, educational, and social service needs
• the child's wishes, and
• other factors relevant to the court's determination regarding the child's best interests.

(R.I. Gen. Laws § 15-5-16.2(c)(1)(v) (2023).)

Visitation Rights in Rhode Island

In Rhode Island, noncustodial parents have a reasonable right to visit their children, unless there's a good reason that shouldn't happen (more on that below). (R.I. Gen. Laws § 15-5-16(d)(1) (2023).)

Under a typical visitation schedule, the noncustodial parent will have the child one evening per week (during school) and alternate weekends, as well as some time during holidays, summer vacations, and school breaks. But there are any number of variations, and the most appropriate schedule will depend on the family's circumstances.

If the parents have agreed on a parenting plan (as discussed above), it should include details about visitation.

When Judges Limit or Deny Visitation

Rhode Island law spells out some of the reasons judges may deny visitation, including when:

• the noncustodial parent has physically or sexually abused the child, or
• the child was conceived as a result of sexual assault by the noncustodial parent.

When visitation has been denied because of abuse, the judge may order the parent to participate in counseling. Also, the judge must review the case at least annually to determine what the parent has done by way of rehabilitation and whether it's still in the child's best interests to prevent visitation. (R.I. Gen. Laws § 15-5-16(d) (2023).)

If there's any evidence of domestic violence in the case, the judge must impose conditions to protect the child, the abused parent, or any other member of the family or household. For example, the judge may order any of the following conditions:

• the perpetrator must attend and successfully complete a certified batterer's intervention program and, if appropriate, attend substance abuse program
• the perpetrator must post a bond to ensure the child's safety
• the child's address and telephone number of the child must be kept confidential
• another person or agency must oversee the visitation (known as "supervised visitation")
• the child's exchange for visitation must take place in a protected setting, and
• the perpetrator must abstain from consuming or possessing alcohol or controlled substances during visitation.

(R.I. Gen. Laws § 15-5-16(g) (2023).)

Can a Child Refuse Visitation?

Normally children aren't allow to refuse to visit a parent until they're legally adults (in Rhode Island, that's when they reach age 18 or are otherwise emancipated). Until then it's the custodial parent's responsibility to see to it that the child obeys the visitation orders.

Of course, that's sometimes easier said than done, especially with older teenagers. If the parents can't work it out through discussions with the reluctant child or by getting outside help (such as a child psychologist), they might have to go back to court to request a modification of the existing visitation schedule.

When Rhode Island Courts Have Authority to Decide Child Custody

Rhode Island, like almost all other states, has a set of laws governing when the state's courts have jurisdiction (legal authority) to issue orders affecting child custody. Under these laws, known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Rhode Island courts generally have jurisdiction to issue custody orders regarding children whose "home state" is Rhode Island—meaning they've lived in the state with a parent (or someone acting as a parent) for at least six months just before the beginning of the divorce or other custody case. (R.I. Gen. Laws § 15-14.1-2(7) (2023).)

The rules in the UCCJEA are complicated, and there are many exceptions to the basic rules. In general, once courts in Rhode Island (or any other state that has enacted the UCCJEA) have issued custody orders, they continue to have exclusive jurisdiction over that child's custody, unless certain circumstances have changed—such as when both parents and the child no longer live in the state. That means that a Rhode Island judge may not modify (change) a custody order from another state unless the requirements for changing jurisdiction have been met. (R.I. Gen. Laws § 15-14.1-15 (2023).)

Modifying Custody and Visitation Orders in Rhode Island

The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to a custody order. For instance, a teenager may have a good reason to want to live with the noncustodial parent, such as intractable conflicts with the custodial parent's new spouse and children.

But you aren't allowed to simply change the parenting schedule on your own, without court approval. If you want to make changes to a current custody or visitation order, you must file a motion (written legal request) with the court, seeking a modification. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's approval.

Without an agreement, a judge will have to decide whether to grant the modification. In order to succeed with a modification request, you must prove that there's been a "substantial change in circumstances" since the most recent custody order was issued. (D'Onfrio v. D'Onofrio, 738 A.2d 1081 (R.I. 1999).) For example, a parent may have become disabled and is no longer able to abide by the current custody arrangement. Or a noncustodial parent's work hours changed, making it impossible to meet the existing visitation schedule.

Also, if a judge finds that there's been any domestic or family violence since the last custody order, that will count as a change of circumstances. (R.I. Gen. Laws § 15-5-16(g)(5) (2023).)

Relocation and Child Custody in Rhode Island

A parent's relocation may qualify as a change of circumstances warranting a modification of a custody or visitation order. As with all custody matter, the judge's primarily consideration will be what's in the child's best interests. (Ainsworth v. Ainsworth, 186 A.3d 1074 (R.I. 2018).)

Normally, a nearby move isn't likely to warrant a change in custody or visitation. It could be hard for the other parent to show how a child would suffer from a relocation to the other side of the city or a nearby town, especially when the moving parent has sole physical custody. Still, that argument might work in some situations. For instance, a relatively short move that requires a change in schools might be detrimental for a special-needs child who couldn't handle the disruption and can't get needed services at the other school.

The reality, however, is that most relocation problems arise when a parent plans to move far away with the child.

Rhode Island courts have identified certain considerations that should go into decisions about relocations and what's best for the child. Judges must consider:

• the child's relationship with both parents
• whether it's likely that the move will enhance the general quality of life for both the child and the moving parent, including educational opportunities and economic benefits
• the probable impact that the relocation will have on the child's physical, educational, and emotional development
• how much the child's relationship with the other parent can be preserved with suitable visitation arrangements, considering the logistics and the parents' financial circumstances
• the existence of extended family or other support systems available to the child in both locations
• each parent's reasons for seeking or opposing the relocation, and
• the factors that go into all custody decisions (outlined above), to the extent they may be relevant.

Also, if a parent wants to move to another country, the judge will consider whether that country has signed the Hague Convention on the Civil Aspects of International Child Abduction, a treaty with guidelines for international custody disputes. (Saltzman v. Saltzman, 218 A.3d 551 (R.I. 2019).)

Note that when addressing a parent's reasons for wanting to relocate, the judge will look closely at the underlying circumstances and try to ensure that the moving parent's real motivation is to frustrate the other parent's relationship with the child.

Enforcing a Custody or Visitation Order in Rhode Island

If a parent isn't complying with the existing custody or visitation order, there may be no alternative but to go back to court and file a motion to enforce the existing order. These motions often include requests for the judge to:

• order a parent to resume obeying the current orders immediately, and
• if the violations persist, hold that parent in contempt of court (which can result in fines and even jail time).

If the custodial parent has been withholding visitation, the other parent may ask the court for additional visitation with the child to compensate for the lost time. You should know that custodial parents aren't allowed to withhold visitation even if the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because visitation is being denied.

If you run into a situation where the noncustodial parent is refusing to return the child, the court has emergency procedures to assist you.

Be aware that it's a crime to remove or detain any child under the age of 18 years with the intent to deny another person's right of custody under an existing court order. If convicted, the punishment is imprisonment for up to two years, or a fine of up to $10,000, or both. (R.I. Gen. Laws § 11-26-1.1(a) (2023).)

Getting Help With Custody and Visitation

Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with Rhode Island's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.

It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. In fact, in any divorce or other custody case, the judge may order the parents to participate in mediation. (R.I. Gen. Laws § 15-5-29(a) (2023).)

But if mediation doesn't work or isn't appropriate (such as in cases of domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.