Written by attorney David Slepkow

Child's Preference and Awarding Custody in Rhode Island

Older children have a very significant impact on child custody and Visitation determinations by a Rhode Island Family Court Judge. Is there a particular age when a child can decide which parent they want to reside with, in a RI child custody or Rhode Island Divorce case?

There is no set age when a child can decide to live with their mother or father in a Rhode Island Child Custody Case. In fact, theoretically, the child is not allowed to make the decision. In reality, older children have a very significant impact on child custody determinations by a Rhode Island Family Court Judge. In making a child custody determination, the Court makes a decision based on the "best interest of the child".

The preference of the child is only one of the factors that a Rhode Island Family Court Judge may consider in determining the best interest of the child. Please see below for all factors that the Rhode Island Family Court utilizes to determine Child Custody.

If an older child such as a 15, 16 or 17 year old has a preference and that opinion is expressed to the Judge, Court Investigator or Guardian ad Litem than the judge will usually respect the child's desire.

There are some exceptions to an older child's decision being decisive. In some cases, despite the child's age, the child does not know what is in his best interest. If the child does not have a good reason for his decision then the judge can deny the child's request. If the other parent is not a fit and proper person to have placement of the child then the Judge can deny the request. The Judge can deny a child's request if the parent the child would like to reside with has a drug or alcohol problem or a criminal record. In some cases, RI Family Court Judges are hesitant to change placement if the child has behavioral issues and the child is merely rebelling against the imposition of rules and structure.

Children also may be given influence in Child Visitation cases in RI. Children may play a role in the determination of whether visitation should be overnight. Children often play a role in whether visitation should be supervised or unsupervised and the length of duration of visitation. Children also may be given influence when the parent with physical custody files a motion to relocate out of state.

Practical Tip: If you are aware that your children support your position regarding Visitation, Custody, Placement or Relocation out of state then have your children interviewed by the Judge, RI Family Services or a Guardian ad Litem.

Children ages 11, 12, 13 & 14 may also given significant influence over Rhode Island Child Custody, Visitation and Relocation cases.

Judges in Rhode Island have different philosophies on how they deal with children. Some judges will not interview children. They will have the Family Court investigators from Rhode Island Family services or the Guardian ad Litem interview the children. The Court Investigator or the Guardian ad Litem then will issue a report to the RI Family Court Judge or Magistrate handling the matter.

There are some judges who will bring the child into chambers for an interview. The Judge will usually bring the court reporter to transcribe the proceedings. Some judges will allow the attorneys to question the child in chambers in front of the judge.

Practical Tip: Don't coach your children. This is unfair to the child and puts unnecessary stress and pressure on the child. Also, the Child will usually tell the Judge or Family services about the coaching. If the Judge believes that you have engaged in coaching then there may be severe sanctions. The Sanctions may include the judge denying your request for placement, sole custody or relocation.

The older a child is, the more weight / influence the judge will give to the child's preferences regarding custody, placement, visitation and relocation out of state. Younger children usually have a greater influence on proving facts rather than making decisions. The child may tell the investigator or Judge that their parent abuses them or if they are afraid of their parent. The child may tell the investigator that the parent makes negative or disparaging comments about a parent in front of the child. The child may make allegations regarding parental alienatation.

Children typically do not get to make the decision concerning legal custody. Legal custody pertains to who gets to make decisions concerning religion, education, social development, activities and medical decisions. Legal Custody will either be Sole Custody to one parent or Joint Custody to both parents. Sole Legal Custody means that a parent can make all important and major decisions concerning a child's health, welfare and upbringing without consulting with the other parent. Joint Legal Custody means both parents should be involved in major / important decisions concerning a child's upbringing, education, medical and religious welfare. However,The factual assertions and opinions of the children may play a role in the Rhode Island Family Court's decision concerning legal custody.

Child Custody matters involving preference of the child may play a role in Rhode Island Divorce, Paternity, Miscellaneous Petitions for Custody, DCYF, Motions to modify Custody or placement and visitation disputes. Children have no real influence on Child Support cases.

The Child Custody Factors in Rhode Island:

"This [C]ourt has held that child-custody awards must be made in the 'best interest[s]' of the child." quoting Petition of Loudin "[T]he best interests of the child standard remains amorphous and its implementation has been left to the sound discretion of the trial justices." Id. Several factors must be taken into consideration by the Judge in making a best interest of the child determination. However, no single factor is determinative; rather "[t]he trial justice must consider a combination of and an interaction among all the relevant factors that affect the child's best interests." Among the factors the court must consider are the following:

  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." Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990).

In many contested child custody cases, Professionals such as Social workers, Therapists, Psychologists, and the Guardian ad litem for the children may play a major role.

Please consult with a Rhode Island Child Custody Attorney

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