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)

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)

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:

1. the abuser to successfully complete a batterer’s intervention program;
2. the abuser to participate in a substance abuse program;
3. the abuser to post money or title to property (a bond) with the court to ensure the safety and return of the child;
4. that the address and telephone number of the child be kept confidential; 
5. that the exchange of the child happens in a protected setting;
6. supervised visitation;
7. the abuser to not have or use alcohol or drugs during visitation; and
8. 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)

Custody or visitation will be denied if both of the following are true:

1. 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 
2. 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)

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:

1. Visitation is in the best interest of the child;
2. The sibling is a fit and proper person to have visitation rights;
3. 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; 
4. There is no other way the sibling would be able to visit the child without court intervention; and
5. 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)

You can file for custody in Rhode Island if one of the following is true:

1. This is where your child has lived for at least six months in a row, which makes it his/her “home state;”¹
2. 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;
3. Another state that has power (jurisdiction) has decided not to exercise it because they believe Rhode Island is the more appropriate forum; and
   
   1. your child and at least one of the parents has a significant connection with this state; and
   2. there is substantial evidence in the state concerning your child’s care, protection, training and personal relationships; or
4. 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

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:

1. 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.

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. 

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)

Abusers often misuse court proceedings in order to continue the abuse. This is called abusive litigation. If you are the victim of abusive litigation by someone who the court has already determined committed abuse, stalking, or sexual assault against you, you can ask the judge to issue an order restricting abusive litigation. See our Litigation Abuse section for more information on how to do this.