Rhode Island Custody
Basic info and definitions
What is custody?
Custody is the legal responsibility for the care and control of your minor child under 18. There are two types of custody: legal and physical. Even though the law in Rhode Island is not very specific about legal custody, this usually refers to the right to make major decisions about your child, including decisions regarding education, medical care, and religion. Physical custody includes the physical care and supervision of your child.1
For general information on custody and the custody process, you might want to look at our Custody, Visitation, and Child Support videos.
1 RI Gen. Laws § 15-14.1-2(14)
How is paternity established?
There are three main ways in which paternity can be established:
- Through marriage. The law assumes that spouses are the parents to a child born during the marriage or up to 300 days after a divorce.1
- Signing an acknowledgement of parentage. It can be signed at:
- the hospital when the child is born; or
- the Rhode Island Center for Vital records if it’s completed after birth.2
- Through a court case. A petition to establish parental rights and responsibilities can be filed in the family or superior court.3 The petitioner must provide the court with the Social Security number of the person who s/he believes is the father. If paternity is established, the court will share that information with the Office of Child Support Services.4 The petition can be filed by:
- the child;
- the person who gave birth;
- the person whose parentage is being decided;
- the Office of Child Support Services; or
- a representative authorized by law.5
1 RI Gen. Laws § 15-8.1-401
2 Rhode Island Office of Child Support Services website
3 RI Gen. Laws § 15-8.1-111
4 RI Gen. Laws § 15-8.1-104(c), (e)
5 RI Gen. Laws § 15-8.1-105
What is mediation and when is it ordered?
Generally, mediation is a process where both parents work with a qualified neutral person (a mediator) who, without providing legal advice, assists the parents in reaching an agreement regarding custody and/or visitation. If mediation is ordered by the judge, the information shared to the mediator or in front of the mediator is privileged and cannot be used in any court process.1
The judge can choose to have the parents participate in mediation:
- before trial, so there wouldn’t be a trial in front of the judge unless mediation doesn’t work;
- during trial, if there are other issues before the judge, like a divorce process. The judge would only deal with non-custody issues until mediation is completed and then there’d be a separate trial for custody and visitation if mediation fails; or
- after a trial has taken place regarding non-custody issues. The judge would not enter a final custody or visitation order until the mediation process is completed so that the parents’ agreement, if one is reached, can become part of the order.2
Although Rhode Island law doesn’t specifically include an exception for domestic violence victims, it’s generally not advisable to go through mediation with an abuser due to the power imbalance. If you are a domestic violence survivor, you might want to let the judge know about this situation and request not to be referred to mediation.
1 RI Gen. Laws § 15-5-29(c)
2 RI Gen. Laws § 15-5-29(a), (b)
Who can seek custody and visitation
Can an abusive parent get custody or visitation?
The judge must consider evidence of past or present domestic violence when making a decision. The law defines domestic violence as the occurrence of one or more of the following between people who have a child in common:
- attempt to cause or causing physical harm;
- placing the other parent in fear of immediate (imminent) serious physical harm; or
- causing the other parent to engage involuntarily in sexual relations by force, threat of force, or duress.1
The judge could grant custody or visitation rights to an abusive parent, however. If the judge grants visitation rights, s/he has to do so in a way that protects the child and the abused parent from further harm.2 As a condition for giving the abuser custody or visitation rights, the judge may order:
- the abuser to successfully complete a batterer’s intervention program;
- the abuser to participate in a substance abuse program;
- the abuser to post money or title to property (a bond) with the court to ensure the safety and return of the child;
- that the address and telephone number of the child be kept confidential;
- that the exchange of the child happens in a protected setting;
- supervised visitation;
- the abuser to not have or use alcohol or drugs during visitation; and
- any other condition that s/he thinks is necessary to keep the child, the abused parent, or other household members safe.3
1 RI Gen. Laws § 15-5-16(g)(1), (g)(4)
2 RI Gen. Laws § 15-5-16(g)(1)
3 RI Gen. Laws § 15-5-16 (g)(3)
Can a parent who physically or sexually abused the child get custody or visitation?
If a child is physically or sexually abused by a parent, the judge can deny visitation. However, the judge could review the case annually to see if the parent has taken any actions to rehabilitate him/herself to then determine if denying visitation is still in the best interest of the child.1 The judge could also order the abusive parent to attend counseling and not doing so would be enough to deny visitation.2
1 RI Gen. Laws § 15-5-16(d)(3)
2 RI Gen. Laws § 15-5-16(d)(5)
If my child was conceived due to sexual assault, can the offender get custody or visitation?
Custody or visitation will be denied if both of the following are true:
- the abuser was convicted in criminal court of:
- first degree sexual assault;
- second degree sexual assault;
- first degree child molestation sexual assault; or
- a similar crime in another state; and
- the child was conceived as a result of the sexual assault.1
However, if the child’s mother or legal guardian consents to visitation and the judge determines that it would be in the best interest of the child, then the judge can order supervised visitation and counseling.1
1 RI Gen. Laws § 15-5-16(d)(4)
Can a grandparent get visitation of the child?
A grandparent may petition the court for visitation.1 However, the law says that the judge has to assume (presume) that the parent’s decision to refuse visitation with the grandparent is reasonable. For the judge to allow grandparent visitation against the parents’ wishes, s/he has to find that all of the following are true
- It is in the best interest of the child to have visitation with that grandparent. To decide this, the judge will consider various factors, including:
- the nature of the relationship between the child and the grandparent;
- the amount of time the grandparent and child spent together;
- the potential pros and cons to the child;
- the potential effect on the parent-child relationship;
- the preference of the grandchild if s/he is of sufficient intelligence, understanding, and experience to express a preference; and
- the reasons that the parents believe that it is not in their child’s best interests to have visitation with the grandparent.
- The grandparent:
- is a fit and proper person to have visitation rights with the grandchild;
- has repeatedly attempted to visit his/her grandchild during the thirty days immediately before the date the petition was filed and was not allowed to by either or both parents;
- has no other way to visit his/her grandchild without court intervention; and
- has shown by clear and convincing evidence that the parents’ refusal of visitation is unreasonable.2
- the nature of the relationship between the child and the grandparent;
1 RI Gen. Laws § 15-5-24.3(a)(1)
2 RI Gen. Laws § 15-5-24.3(a)(2)
Can a sibling get visitation?
A sibling, including a step-sibling, can petition the court for visitation rights with a minor child. The judge will hold a hearing where the child’s parents can be present. In order for the judge to grant a sibling reasonable visitation rights, the judge must determine that all of the following are true:
- Visitation is in the best interest of the child;
- The sibling is a fit and proper person to have visitation rights;
- The sibling was not allowed to visit the child during the thirty-day period immediately before the date the petition was filed because either or both parents would not allow it;
- There is no other way the sibling would be able to visit the child without court intervention; and
- The sibling has convinced the judge by clear and convincing evidence that the parents’ decision to refuse visitation with the child was not reasonable.1
1 RI Gen. Laws § 15-5-24.3(b)
The custody process
Can I file for child custody in Rhode Island?
You can file for custody in Rhode Island if one of the following is true:
- This is where your child has lived for at least six months in a row, which makes it his/her “home state;”1
- Your child is not currently in Rhode Island but this is where you child lived within six months of starting the custody case and one of the parents or person acting as a parent still lives in this state;
- Another state that has power (jurisdiction) has decided not to exercise it because they believe Rhode Island is the more appropriate forum; and
- your child and at least one of the parents has a significant connection with this state; and
- there is substantial evidence in the state concerning your child’s care, protection, training and personal relationships; or
- No other court has the power to make a decision about your child.2
1 RI Gen. Laws § 15-14.1-2(7)
2 RI Gen. Laws § 15-14.1-13
What are some advantages and disadvantages of getting a custody order?
There are many reasons you might choose not to get a custody order from a judge. You may decide not to get an order because you don’t want to get the courts involved or you may already have an informal agreement with the other parent that works well for you. You may think that going to court will provoke the other parent to seek more time with your child and more legal rights, which you do not want him/her to have.
However, in some cases, it is a good idea to get a custody order from a judge. For example, it might make it easier to deal with the other parent because the rights and responsibilities for each parent would be stated clearly in the order. You will have to make this choice based on your particular situation. A lawyer might be able to offer you advice about which choice is right for you. To find a lawyer in your area, please see our RI Finding a Lawyer page.
If you go to court, a judge can give you or the other parent:
- the responsibility to make decisions about education, healthcare, religion and other things for your child;
- a clear schedule listing where the child will live and when the child will have time with the other parent;
- clear instructions for how and when the child will be transferred to the other parent and returned to you;
- an order preventing either parent from moving out of state with the child;
- the responsibility to make or receive child support payments; and
- the right to call the police or go back to court to enforce the order and hold the other parent in contempt if the other parent does not follow the court order.
What are the steps for filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:
- File for custody
Depending on the state, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own.
- If you are an unmarried parent, you can seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
2. Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have custody of your child. When preparing for court, you can gather evidence that helps make your case. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communication between the parents can only be in writing;
- all communication can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, charged with child abuse or neglect, or moves to another state.
You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody, visitation, and related legal concepts that a judge will consider, as well as child support, and moving out of state with your child.
How will a judge make a decision about custody?
To determine custody, the judge has to consider what is in the best interest of the child. Among others, the following factors should be considered by the judge when analyzing the best interest of the child:
- the wishes of the parents regarding the child’s custody;
- the reasonable preference of the child, if the judge believes the child to be of sufficient intelligence, understanding, and experience to express a preference;
- the interaction and relationship of the child with the child’s parents, his/her siblings, and any other person who may significantly affect the child’s best interest;
- the child’s adjustment to his/her home, school, and community;
- the mental and physical health of the parties and the child;
- the stability of the child’s home environment;
- the moral fitness of the child’s parents; and
- the willingness and ability of each parent to facilitate a close and continuous relationship between the child and the other parent.1
Receiving public assistance is not a factor that will be considered when awarding custody.2
1 Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990)
2 RI Gen. Laws § 15-5-16 (d)(2)
Do I need a lawyer?
You do not need a lawyer to file for custody. However, it is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources for free or low-cost legal help on our RI Finding a Lawyer page. Even if you plan on representing yourself, a lawyer might be able to provide legal counsel on options available in your specific case or review your papers before you file them.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I change the state where the case is being heard?
Sometimes the court where a custody case was started may become an “inconvenient forum.” This essentially means that there is a court in a different state that is more convenient for that specific case. This usually happens when one or both parents move to a different state with the child. When this happens, either parent or the judge in the current court or in the court of a different state may raise the issue of the inconvenient forum. To decide if the case should be heard in a different court, the judge will consider:
- if there has been domestic violence, whether it’s likely to continue and which state could better protect you and your child;
- how long your child has lived outside of the state;
- the distance between the court in Rhode Island and the court in the state that would take the case;
- the finances of the parties;
- any agreement between you and the other parent as to which state should hear the case;
- the nature and location of the evidence needed to resolve the case at hand, including testimony of your child;
- the ability of each court to decide the case promptly and the procedures that need to be followed to present evidence; and
- how well each court knows the facts and issues being litigated.1
1 RI Gen. Laws § 15-14.1-19
After an order is in place
If the other parent doesn’t follow the custody order, what can I do?
If the other parent is not following the custody order, you may file a motion for contempt in family court. If the judge finds that the order is not being followed, s/he can punish the other parent and provide a remedy to address the violation.
If the judge finds that the custodial parent has refused to provide visitation on two or more occasions, then this could be considered a reason to take custody away from the custodial parent.1 Note: If the parent is absent or didn’t follow the custody order because s/he was activated to military service or deployment out of state then that, by itself, won’t be enough to change the custody or visitation order.2
If you are the custodial parent and the non-custodial parent is not using his/her visitation, courts generally will not force the non-custodial parent to use visitation time. The rationale is they don’t want to force a parent to spend time with a child if s/he doesn’t want to because that wouldn’t be in the best interest of the child. Continual failure to use visitation time when there is joint physical custody can possibly be a legal reason to request that the custody order be changed to sole physical custody. This is something that you could consider after talking to a lawyer.
1 RI Gen. Laws § 15-5-16(d)(1)
2 RI Gen. Laws § 15-5-16(g)(7)
If a custody order is already in place, how can I get it changed?
Generally, when there’s a final custody order, you can only petition the judge to make changes to it if there has been a significant change in circumstances since the custody order was issued. The judge may change (modify) the custody order if, based on these new circumstances, s/he feels that the modification would be in the child’s best interests.
Rhode Island law says that a domestic violence incident that happened after the order was issued is enough for the judge to determine that there was a change in circumstances.1
1 RI Gen. Laws § 15-5-16(g)(5)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.