Family Law FAQ

Providence Family Law Lawyers Serving Rhode Island

At TJC ESQ, we pride ourselves in taking the time to educate and inform our clients as much as possible about their cases. We want them to make informed decisions about matters that can affect their families for the rest of their lives. Below are some questions that our Providence family law attorneys frequently receive.

If you have a question specific to your case, don’t hesitate to contact us.

  • Billing Policy

    1. Q. If I or my child is out of state, which Court do I go to?
      A.
      It depends. The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) provides for "emergency" jurisdiction in the state in which the child is physically present, in appropriate circumstances. You should consult with an attorney in your state or the state in which the child is present to determine whether there is an "emergency" as that term is used by the UCCJEA. Other than an emergency, cases are properly brought in the State in which the child has resided for the last 6 months, which is considered the child's "home" state. Exceptions to this general statement could apply if a different Court has already issued a custody order, or if the child has been "wrongfully removed" as that term is used in the UCCJEA.

    2. Q. What is the difference between a criminal case, a civil case, a divorce, a restraining order, and then there is the DCYF? Its all so confusing!
      A:
      Yes it is. Here is an overview that may help. Our legal system has multiple points of access, and entirely separate venues or contexts in which issues relating to children arise and are handled. Each court is separate, and even a case on the "DCYF calendar" in Family Court is not the same "case" as a divorce file before a separate Family Court judge dealing with custody and visitation in the same family. As odd as it may sound, think of multiple chess boards, with the same pieces sometimes moving their conflict from one board to the other. The results on one board may have a dramatic impact on the results of the other. Certain issues can only be addressed in one forum. Finally, the rules are different in different contexts. Without getting into too much detail, "the system" can be conceived of as having an administrative level at the "bottom," which is the state child care agency, the Department for Children, Youth and Their Families (DCYF).

      Complaints regarding abuse or neglect of children by caretakers are investigated by DCYF. The Department can "indicate" or "unfound" a complaint, and provide services without Court intervention. A person aggrieved by Departmental action can appeal, first, within the Agency and then to the courts. Not all cases end at the administrative level. The courts can be involved in several ways. First, the State can file abuse or neglect charges that are non-criminal in nature. These go to the Family Court, and are intended to assist and protect the child, preserving the family if possible. The State can also file criminal charges, which are usually brought in the most serious cases, and always by the Police. Parents can bring actions on their own behalf, or on behalf of the their child, to protect the child from abuse. If the parent is bringing such an action on behalf of the child, the child through the parent, is the plaintiff, and child is requesting a restraining order. These are emergency proceedings that are not intended to short-circuit traditional parent v. parent litigation. Most custody and visitation issues, and many issues relating to treatment or mistreatment of children, are litigated in the context of parent v. parent litigation. If the parents have not been married, those cases are heard in Rhode Island on a "miscellaneous petition." If the parents are married, either parent can file a divorce, or one of several kinds of complaints or petitions for relief without the filing of divorce. If a divorce has already been granted, and a change in circumstances has occurred, the parent can bring a "post-final judgment" complaint to modify. Not to be too confusing about it, but in any of the parent v. parent cases, the Court can issue a restraining order under appropriate circumstances.

    3. Q. I don't know if I can afford an attorney, how much will it cost?
      A:
      Our billing practices are online, and if choose to contact us, we will discuss the likely range of costs for your case at your initial consultation. It will not cost you more than the fee for the initial consultation ($100.00) to get a basic understanding of your rights and your options, and the nature of the work that is involved. If you cannot afford an attorney, there may be a number of options available to you. Juveniles are entitled to representation on allegations of waywardness or delinquency in the Family Court under a variety of circumstances, and the Court will appoint counsel or refer you for an eligibility determination upon request. Adults with family law problems can contact the Rhode Island Bar Association's Volunteer Lawyer Program. If your case involves child support collection, you can pay the State $20.00 and they will collect the support for you.

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    Divorce

    1. Q. How much for an uncontested divorce?
      A. How uncontested is it? The sad fact is that although the vast majority of divorces are eventually uncontested, one never knows how much contesting will take place before the parties reach an agreement. Divorces that "should" be simple can become mired in petty conflicts, divorces that present many complexities can become simple when the parties deal openly and in good faith. We charge for time, and no two cases are the same. Before we open your case, we will discuss the possibilities for agreement, and the likely impact on costs. Any funds you advance expecting to need more time than is actually spent are simply returned in the event things go more smoothly than may have been anticipated.

    2. Q. How long does it take to get divorced?
      A: The generally applicable statutory minimums are as follows:

      There can be no "hearing on the merits" until 30 days after filing of the complaint.

      The Court will schedule an uncontested hearing 77 days after the filing of your petition for divorce.

      The "final decree" cannot enter for a divorce on grounds of "irreconcilable differences" until 3 months after the hearing on the merits. You are not divorced until the final decree enters.

      Although the first 30 day waiting period can be waived, the second 3 month period cannot be waived.

      Practically, divorces generally take between 6 months and a year in Rhode Island. As was suggested in response to question 1, above, the single most significant variable controlling how long it takes to get divorced (and how much the divorce will cost) is how easily the parties can reach an understanding as to the terms of their divorce.

    3. Q. If I have the children half the time, I don't have to pay child support, right?
      A. Wrong - at least not always! The guidelines look at disparity in income, as well. That means that if you earn twice as much as your spouse, and you both have the children half the time, you may have to pay support.

    4. Q. Will my spouse have to pay attorney's fees?
      A. Although it is not uncommon for one party to be ordered to pay something toward the fees of another during a divorce, it is rare that any spouse covers all the costs of the other party's fees. If you think about it, an arrangement that puts an adverse party in the position of controlling what your lawyer gets paid is not in your interest. Ultimately your lawyer's fees are your responsibility. We can and do obtain fee awards in appropriate circumstances, and those fees reduce your bill to the firm. You have to decide, however, whether it is really cost effective to pursue a fee award.

    5. Q. I am worried about our bank accounts, what should I do?
      A. Once a divorce is filed, the Court will issue "automatic orders" which prohibit the parties from "taking off" with the children or the parties' assets. Ordinary transactions are permitted. You should review the automatic orders, as they will binding on the party filing as well. If there are unusual circumstances that present an emergency, we can apply to the Court for an emergency order.

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    Child Sexual Abuse

    1. Q. How do I go about getting treatment?
      A. The Sexual Assault & Trauma Resource Center of Rhode Island has a twenty four hour hotline (866-415-6041) and excellent online resources regarding medical evaluation and children's advocacy. They also host support groups and provide crisis intervention. Private therapist will probably be your best bet for longer term treatment issues, but most private therapists have long waiting lists, and SATRC can be invaluable during the initial phase of disclosure and intervention. NOTE: If you were victimized in an institutional setting, the responsible institution may supply funds for treatment.
    2. Q. What will the police do with the perpetrator?
      A: The offender may ultimately admit, or waive his right to contest, the charges. Although this spares the victim a criminal trial, this usually happens with some concession on the part of the police and prosecution regarding sentencing. A "plea bargain" is usually not going to result in as stiff a sentence as would be had if the offender was convicted after trial. As the victim, you have a right to be consulted regarding plea recommendations and sentencing recommendations, so you should make your feelings on this issue known to the police and the prosecutor. Finally, you should understand that what you want is just one piece of the puzzle. The offender's prior record, or lack thereof, and the nature of the offense define certain parameters in which the both the prosecution and the defense must operate.
    3. Q. How do I recover for the damages caused to me, or to my child?
      A: There may be several options. What should be the simplest and most direct means for most victims is an application for criminal injuries compensation, direct action, employer
    4. Q. What is the difference between a Civil and a Criminal case?
      A:
      Well, there are lots of differences. First, in a criminal case, the State, not the victim, is the party. A victim is entitled to representation, but does not control the prosecution. The State must prove its case to a high standard – beyond a reasonable doubt – and if there is a conviction, the perpetrator can be sentenced to probation or incarceration, and required to participate in counseling. There is no compensation for the victim, although a victim may file an administrative claim and receive limited compensation from the state. In a civil case, the victim hires private counsel, and as plaintiff brings an action that seeks to hold the perpetrator and other responsible parties accountable. To recover, the plaintiff needs to prove liability by "a preponderance of the evidence," and prove damages.

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    Adoption

    1. What is Adoption?
      Adoption is the legalization of a parent-child relationship. Once an adoption is granted the parent acquires all of the rights and responsibilities of a birth parent towards a child.
    2. Where does one go to request an adoption?
      Adoptions of children under 18 are filed by petition to the R.I. Family Court.
    3. What is required before the court can grant an adoption?
      The court requires a home study and, in most cases, the child must be in residence with the adoptive parents for at least six months before the adoption petition is filed.
    4. What about the birth parents?
      Either the birth parents must consent to the adoption or their parental rights must be terminated. Once the adoption is granted, all rights of the birth parents are extinguished unless it is an open adoption.
    5. What is an open adoption?
      An adoption is "open" if some contact between the birth parent and child is preserved as part of the adoption. This contact can consist of visitation, exchanges of pictures, letters at specific intervals, cards for special occasions, etc.
    6. Are the Family Court records of adoption open to the public?
      No. Adoption records are confidential and sealed.
    7. Can adoptees get access to their adoption records at Family Court?
      Adult adoptees can only access their Family Court records if there is "good cause" for breaking the seal of confidentiality. Good cause may be found for compelling health issues that require historical information contained in the record. Knowing the identity of one's birth parent is not "good cause". However, if both the birth parent and the adult adoptee enroll in the Passive Voluntary Adoption Mutual Consent Registry at the Family Court, their identities can be revealed to each other.
    8. Can my new spouse adopt my child?
      A step-parent can adopt his/her spouse's child if the child's father consents or if there are sufficient grounds to terminate his/her rights as a parent. In most cases of step-parent adoption, there has been a willful neglect of visitation and/or child support by the birth father.
    9. Can foster parents adopt their foster child?
      Often foster parents are encouraged to adopt their foster child when it becomes clear to DCYF that reunification with the birth parent is unlikely. In this case, DCYF will file and prosecute a petition to terminate the parental rights of the birth parents. Foster parents who have had a foster child in residence for two years have an independent right to file an adoption petition. However, they then bear the burden of proving that the rights of the child's birth parents should be terminated.
    10. What happens after I adopt a child?
      The child's birth certificate is changed and your name(s) are placed on it. The child's last name is usually changed to yours. You become responsible to support, educate, feed, clothe and care for the child until he reaches the age of majority, just as any birth parent. You also have the right to control decisions regarding his health care, education, and general welfare.
    11. Does my adopted child have the same rights of inheritance as my birth children?
      An adopted child has the right to inherit from both his adoptive and his birth parents. However, only the adoptive parents can inherit through the child.

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    Guardian Ad Litem

    1. What Is a Guardian Ad Litem?
      A Guardian ad litem (GAL) is a lawyer or mental health professional appointed by the court to conduct an investigation and report to the judge regarding the best interests of the child whose parents are getting divorced.
    2. If a GAL Is Appointed Will S/He Make All the Decisions About My Child?
      No, A GAL is appointed only for purposes of the divorce proceeding. The parents retain all their rights a legal guardians of the child.
    3. When Are GALS Appointed?
      A GAL is appointed at the request of either or both parents or by order of the judge. GALs are often appointed in contested custody/visitation cases.
    4. Can a Parent Hire A Lawyer to Act as His/Her Child's GAL?
      NO. GALs are appointed by the court and must complete various requirements to be eligible to serve the court as a GAL. The court maintains a list of qualified GALs who have met the required criteria.
    5. Why Would a Child Need a GAL?
      A child may need a GAL because the atmosphere between his parents has become so toxic that they are incapable of reaching agreements about custody and visitation that serve the child's needs. A parent may suspect alienation, undue influence or parental impairment and desire an investigation by a neutral party. An older child may express a desire to change residences but you may not want her involved in the court contest that arises if both parents do not consent. The child may have special needs that must be addressed in custody and visitation orders.
    6. What Do I Do If I Think My Children Need A GAL?
      If you think your children need a GAL ask your lawyer to file a motion requesting the appointment of a GAL.
    7. Who Pays the GAL?
      The GAL is paid by the parties. The court does not pay the fees of the GAL in domestic cases. The GAL fees must be reasonable and consistent with those charged by similar professionals. A GAL may ask for a retainer before commencing his/her investigation.
    8. What Does a GAL Do?
      Every order appointing a GAL should be specific regarding the task of the GAL. In most cases, the court is asking for recommendations about custody, physical placement and/or visitation. Sometimes a GAL will be appointed to speak to an older child about his/her preference in living with either parent. GALs are appointed to investigate mental health, substance abuse and alienation issues and develop appropriate visitation plans for children. Relocation of one of the parents is a frequent source of contention between divorced parties and a GAL can be appointed to provide the court with information about the desired move.
    9. How Does the GAL Perform Her Job?
      The GAL gathers information by interviewing the parents and other persons who have potentially relevant information about the family, particularly the child. The GAL should always see the child, even if he is not old enough to speak. The GAL has the right to speak to the child alone. The GAL has the right to access all health, educational, psychological information about the child. The GAL may also ask the parents to sign releases for confidential health care information about themselves, particularly if this has become an issue in the case. The GAL will prepare a written report for the court focusing on the best interests of the child. Often the GAL will make specific recommendations.
    10. Does The GAL's Report/Recommendation Control the Decision Regarding the Children?
      NO. The GAL's recommendations are purely advisory. The Judge is always the final decision maker in the custody case.
    11. Are There Any Laws Or Standards Governing the Conduct of GALs?
      Yes, there are both laws and standards that describe the duties and responsibilities of the GAL. The statutory authority can be found at R.I.G.L. 15-5-16.2(c). The Chief Judge of the Family Court has issued an Administrative Order setting forth the credentialing process as well as the rules governing the appointment and performance of GALs in domestic cases.
    12. What Is the Difference Between a GAL and a Lawyer for the Child?
      The GAL is appointed by the court to represent the best interests of the child. The child may express a desire that is not in his best interests. The GAL is not required to advocate for the expressed wishes of the child. Rather, the GAL makes an independent assessment based on the child's best interests. An attorney for the child must follow the directives of the child client.
    13. When Is the GAL's Job Done?
      The GAL is discharged when the final decree of divorce is entered or sooner if all the issues for which s/he has been appointed have been resolved earlier. In rare cases, the court will order the GAL to remain involved beyond the date the parents are divorced.

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    Billing

    In most civil matters brought to recover damages, the firm anticipates that recovery from a defendant will compensate the firm for work. Such matters therefore generally are undertaken on a contingent fee basis. Clients are responsible for litigation costs, (such as sheriff's fees, and court filing fees) but costs generally are deducted from the amount recovered by the firm in the event the client is unable to pay costs as incurred.

    Domestic relations matters, matters requiring litigation with child care agencies, and other billable matters, are billed at hourly rates that range from $350 to $400 per hour. The firm opens billable files upon receipt of advanced fees in an amount agreed upon with the client, based upon the complexity of the matter involved and the anticipated needs of the client. If you would like to schedule an initial consultation, you can contact us by phone at (401) 216-4144 or online here.

    If you have additional questions, don't hesitate to contact us today at (401) 216-4414.

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