Family Law in Rhode Island
Same-sex couples can marry in Rhode Island. Single gay people can adopt in Rhode Island; in most cases, same-sex couples can jointly become the legal parents of a child.
Questions & Answers (Accurate as of February 25, 2014)
Can same-sex couples legally marry in Rhode Island?
Yes, after many years of failed attempts and nearly two years after the passage of a civil unions bill in July 2011, on May 2, 2013, the Rhode Island General Assembly approved and Governor Lincoln Chafee signed a marriage equality law, An Act Relating to Domestic Relations-Persons Eligible to Marry, 45 that entended the right to marry to same-sex couples effective August 1, 2013.
This legislation also end the ability of same-sex couples to enter into civil unions in Rhode Island on that same date and allows any couples already in a Rhode Island civil union to merge their civil union into marriage.
This made Rhode Island the General Assembly for thesixth and last several years.state in New England and the 10th state and 11th jurisdiction (including Washington, D.C.) in the United States to allow same-sex couples to marry. GLAD has been working closely with congratulates Marriage Equality Rhode Island and Rhode Islanders United for Marriage for their hard work in making this a reality.
How does one get married in Rhode Island?
The process for getting married in Rhode Island requires the following basic steps:
- If at least one party is a resident of Rhode Island, the couple must obtain a license from the clerk in the town or city whether either party lives. If neither party is a resident of Rhode Island, the couple must obtain a license from the clerk of the city or town where the proposed marriage is to take place.47
- The couple must have the marriage solemnized (i.e. have a ceremony which is witnessed by at least two people in addition to the officiant) within 3 months of obtaining the license48
- Once the ceremony has been performed, the person who performed it has 72 hours to return the license to the city or town where it was issued.49
- The clerk will then file the original, and the couple can receive an official certificate of their marriage.
How does religion affect getting married in Rhode Island?
The Act also reiterates the right of any religion to set any requirements it chooses on who may marry within that religion and the right of any clergy person, rabbi or similar official to refuse to marry any couple. It also provides further exemptions for religiously-controlled organizations and fraternal benefit organizations.
What happens to Rhode Island civil unions?
Effective August 1, 2013, Rhode Island no longer licenses new civil unions. If you already have a Rhode Island civil union and want to be married, there are two ways you can convert it into a marriage in Rhode Island:
- You can see the municipal clerk where your civil union certificate was filed and request that it be merged into a marriage. There is no cost for this and you do not need to go through a marriage ceremony. The clerk is then required to provide you with a marriage certificate.
- You can go through the normal process of getting married, and your civil union will then be merged into your marriage.
If you have a Rhode Island civil union and don’t want to be married, you don’t need to do anything. In that case, your civil union will continue as a civil union until you merge it into a marriage, dissolve it or your civil union partner dies.
How will the marriage of a same-sex couple be respected?
Rhode Island will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a Rhode Island marriage will be respected as a marriage in Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, the District of Columbia, Maine, Maryland, Washington State, New York, California, Minnesota, Delaware, New Jersey, Hawaii, New Mexico, and Illinois (effective June 1, 2014) and may be respected in some instances in Oregon. A Rhode Island marriage will be respected as a civil union in Colorado and as a doemstic partnership in Nevada.
The 1996 federal law, the Defense of Marriage Act (DOMA), which prevented same-sex married couples from accessing the 1,138 federal laws that pertain to marriage, was finally ruled unconstitutional by the United States Supreme Court on June 26, 2013. This case, Windsor v. United States, was filed by the American Civil Liberties Union. GLAD filed the first challenge to DOMA in 2009, Gill v. OPM, and the legal framework developed in that case was used in subsequent cases, including the Windsor case. GLAD was also responsible for coordinating the amici briefs in that case.
This means that same-sex married couples living in places that recognize their marriages (currently MA, CT, VT, NH, ME, RI, NY, ID, MD, DE, CA, WA, MN, NJ, HI, IL, NM [effective June 1, 2014] AND DC) will have their marriages respected by the federal government for all purposes, e.g. taxes, Social Security (including SSDI and SSI), immigration, bankruptcy, FMLA, federal student financial aid, Medicaid, Medicare, veteran’s benefits, TANF and many more.
For same-sex married couples who live in non-recognition states, even though their state will not recognize their marriage, the federal government will for some purposes (e.g. taxes and immigration) and not for others. GLAD and other legal organizations are advocating that the federal government respect the marriages of same-sex couples for all federal programs wherever they reside, but it will take some time to achieve this goal. For more detailed information about various federal programs and whether the program will recognize the marriages of same-sex couples who live in non-recognition states, go to http://www.glad.org/doma.
Also, while DOMA was in effect, if an employer granted a spousal benefit to an employee (e.g. allowing the spouse of the employee to be on the company health plan), the employee was taxed on that benefit. Now that DOMA is gone, that is no longer the case. And since the IRS respects the marriages of same-sex couples wherever they live, this applies to all married same-sex couples regardless of where they reside.
Unfortunately, one issue that was not resolved by taking down DOMA was whether an employer can be legally required to provide health insurance to a same-sex spouse. If the company has a self-insured health plan, that plan is controlled by a federal agency called ERISA, and because the federal anti-discrimination employment law, Tile VII, does not explicitly prohibit discrimination based on “sexual orientation,” some employers are claiming that they are not legally required to provide this benefit to same-sex spouses.
Also, if the health plan is insured and the owner of the plan is situated in a state that doesn’t recognize the marriages of same-sex couples, some employers are choosing to discriminate against same-sex spouses.
However, for both self-insured and insured health plans, nothing prevents the employer from offering coverage to same-sex spouses. If your employer is discriminating against same-sex spouses, contact GLAD Answers.
What happens if we need to end our marriage?
Should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce.
There are a small number of places that will allow a relationship that was granted there to be dissolved without a residency requirement if you can prove that neither spouse can dissolve it where they currently reside (e.g. Vermont, California, Delaware, District of Columbia, Minnesota and Canada).51
What other options are available to Rhode Island same-sex couples to obtain legal recognition of or protection for their relationships?
Currently Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, New York, Maine, Washington State, Maryland, Delaware, Minnesota, California, New Jersey, the District of Columbia, Hawaii, New Mexico, Illinois (effective June 1, 2014) and Canada allow same-sex couples to marry and have no residency requirement. There is information about getting married in Massachusetts, Vermont, Connecticut, New Hampshire, Maine, Rhode Island and Canada on GLAD’s website at: http://www.glad.org/rights/publications/c/marriage/.
For information about getting married in states outside New England, contact Lambda Legal at www.lambdalegal.org
Some people may be able to wed in Spain, the Netherlands, Belgium, Norway, South Africa, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, Uruguay, New Zealand, France, England, Wales and parts of Mexico, but some of these locales have requirements that make it difficult for non-citizens to marry.
For a detailed discussion of marrying in Rhode Island, see GLAD’s publication, Rhode Island Marriage Guide For Same-Sex Couples, at http://glad.org/uploads/docs/publications/ri-marriage-guide.pdf. This publication includes the following topics:
- The detailed process for getting married in Rhode Island
- Religious exemptions
- Rhode Island civil unions
- Couples who are already have a legal relationship from another state or country
- Some things to consider before getting married
- The protections marriage provides
- How your marriage will be respected
- Marriage and children
- Obtaining spousal health insurance from an employer
- Filing income taxes
- Legal protections in addition to marriage
What is domestic partnership?
Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes. This recognition may be given by a state or municipal governmental entity or by private businesses and organizations.
In the workplace context, employers may set criteria for domestic partnership as a way for employees to obtain certain fringe benefits for their partners and families which were previously limited to married spouses. The State of Rhode Island, some Rhode Island cities and towns and many private employers in Rhode Island offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan.
In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” See GLAD’s publications on Domestic Partnership for further information.
GOVERNMENTAL DOMESTIC PARTNERSHIP RECOGNITION IN RHODE ISLAND
Although Rhode Island does not have a statewide domestic partnership registry like some other states, the Rhode Island legislature has enacted several laws that provide certain benefits to same-sex couples.
In order to qualify, both partners must certify by affidavit that (1) both partners are at least 18 years old and mentally competent to contract, (2) that neither partner is married to anyone, (3) that the partners are not related by blood to a degree that would prohibit marriage in the State of Rhode Island, (4) that the partners live together and have lived together for at least one year, (5) that the partners are financially interdependent as evidenced by at least one of the following: (a) a domestic partnership agreement or relationship contract; (b) a joint mortgage or joint ownership of a primary residence; (c) two of (i) joint ownership of a motor vehicle; (ii) a joint checking account; (iii) joint credit account; (iv) joint lease and/or the domestic partner has been designated a beneficiary for the employee’s will, retirement contract or life insurance.
What domestic partner benefits does Rhode Island offer to state employees?
In the summer of 2001, the Rhode Island legislature made domestic partner benefits available to state employees with respect to health insurance. It did so by changing the definition of “dependent” in state insurance laws. In 2006, Rhode Island extended these benefits to include family and medical leave to care for an ill partner 52 and COBRA health benefits for a state employee’s domestic partner, 53 and in 2007, the legislature extended pension benefits managed through the Employee Retirement System of Rhode Island, to surviving domestic partners with whom the employee had lived for at least a year and were “financially interdependent.” 54
To qualify, a same-sex couple must certify by affidavit to the benefits director of the division of personnel that the couple meets the requirements listed above. Misrepresentations of information in the affidavit will result in an obligation to repay any benefits received and a fine up to $1000. Employees are further required to inform the benefits director at their place of employment if and when their relationship ends.
Are other benefits available to domestic partners of public employees?
A one-time benefit is available to the domestic partners of police officers, firefighters, corrections officers, or other emergency workers killed in the line of duty. Surviving partners have to certify by affidavit to the Board of Police Officer’s and Firefighter’s Relief that they were in a relationship meeting the criteria set forth above.
Some Rhode Island cities and towns offer domestic partner benefits such as coverage for the partner and his/her children under the employee’s health plan.
What other protections does state law provide to domestic partners?
In January 2010 the Rhode Island legislature passed a law55 that gives a domestic partner control over the remains and the funeral and burial arrangements of his/her partner provided: (1) the partner meets the definition of domestic partner defined above, and (2) the deceased has not designated another person as his/her “funeral planning agent” as described below in the section “Legal Protections for Same-Sex Couples—Funeral Planning Documents.”56 The law was championed by a gay man, Mark Goldberg, who had a five-week battle to claim the body of his partner of 17 years. Despite near unanimous passage, it took a legislative override of the Governor’s veto to finally enact the law.
Although it is an important step forward to have this protection for domestic partners, it does require that you prove that your relationship meets certain criteria at a time of tragedy. The better way to achieve this protection is to name your partner as your “funeral planning agent,” as discussed below. That agent takes precedence over everyone—spouse, domestic partner, and blood relatives.
DOMESTIC PARTNERSHIP RECOGNITION BY PRIVATE COMPANIES AND ORGANIZATIONS
What kinds of domestic partner benefits may private employers and organizations provide?
Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. Private organizations, e.g. a gym, country club, etc., can extend family membership or other family benefits to domestic partners.
DIFFERENCES IN BENEFITS PROVIDED TO DOMESTIC PARTNERS VERSUS DIFFERENT-SEX SPOUSES
Are there any tax consequences associated with receiving domestic partnership benefits?
Yes. Even when employers provide domestic partner benefits, in most instances federal laws require different tax treatment of the benefits for domestic partners as compared to married spouses. An employee must pay a federal income tax on the “fair market value” that the employer is paying for his or her domestic partner’s health insurance benefits unless the domestic partner qualifies as a tax dependent of the employee for health insurance purposes. In most states, employees must also pay a state income tax on these benefits, but Rhode Island exempts employees from state income tax on health benefits extended to a domestic partner or civil union partner.58
What other differences exist for domestic partners versus different-sex spouses?
For pensions, a domestic partner has no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.
What steps can a couple take to safeguard their legal relationship in Rhode Island regardless of whether they have a marriage or civil union?
- Relationship Agreement or Contract: Cohabitation agreements regarding property and finances are a good way for couples to sort out their affairs in writing before a separation. As long as the contract is not about sexual services, it has a good chance of being upheld as valid as long as it complies with the requisites for a valid contract. 59 Bear in mind that as in any state, specific provisions concerning children may or may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements.)
- Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled. 60 If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.
- Durable Power of Attorney for Health Care: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care agent if he or she wishes another person to make those decisions instead of the family member. Under R.I. Gen. Laws, § 23-4.10-2, a person may appoint a health care agent to make decisions — whether for a limited amount of time or indefinitely. The attorney-in-fact may then make decisions for you — either immediately or upon your becoming incompetent to make decisions. Even after you give another person a health care power of attorney, you may make decisions for yourself if that is what you wish and as long as you are competent to do so. The power of attorney can specify the authority of the agent to make decisions on your behalf, and also state what kinds of treatments you do not desire, including treatments which might keep you alive. You can also specify your wishes regarding organ and tissue gifts after death. The power of attorney must be signed by two witnesses, at least one of whom is not related to the principal, and neither of whom is the agent of a health care provider or their employee. The power of attorney can be revoked at any time by creating a new power of attorney or by a clear expression of revocation. People often give a copy to their doctors and sometimes to family members.
- Will: Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state.61 If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.62
- Funeral Planning Documents: Rhode Island permits a person to name another as his or her “funeral planning agent” with sole responsibility and authority to make any and all arrangements and decisions about funeral services, and burial or disposition of remains, including cremation.63 The document must be signed and notarized by the individual.64 To prevent any disputes with family members, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members. Even absent these documents, a surviving same-sex partner who can prove that their relationship satisfied the state criteria for being “domestic partners” (read the “Domestic Partnership” section above) can also assume control of the funeral and burial process. However, this requires proving certain facts about your relationship at a time of tragedy and does not control if someone else has been appointed as the “funeral planning agent.” The best way to ensure that your partner is able to make these decisions is to name your partner your “funeral planning agent.”
- Living Will: Within a durable power of attorney for health care, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.65
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a durable power of attorney for health care with specific instructions about the types of treatments to which you do and don’t consent, and the exact scope of the agent’s authority.
If a couple separates, what is the legal status of a Relationship/Partnership Agreement/Contract?
Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it. The Rhode Island Supreme Court has recognized that, under some circumstances, contract theories and equitable principles may apply to address the property and financial matters of a separating same-sex couple even without a written agreement.66 Written agreements offer vastly greater security, however, providing the court with a roadmap as to the intentions of the parties.
If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planning agent, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.
Can a single gay individual adopt a child in Rhode Island?
Yes. Rhode Island law provides that any person may petition to adopt another person who is under age 18.67
Can same-sex partners together adopt a child in Rhode Island?
Though the question of joint adoption by an unmarried couple is not addressed expressly by the Rhode Island statutes on adoption or by any authoritative ruling by the State Supreme Court, joint and second parent adoptions have routinely been granted at the Family Court level. Feel free to contact GLAD for more information, or if you encounter any difficulties. Also, with the advent of marriage and civil unions in Rhode Island, a married or civil union couple can do a step-parent adoption.
What is the advantage of doing a second parent or joint adoption?
A joint adoption means that the child now has two legal parents for all purposes. The law will reflect the actual family situation, which often gives great comfort and security to everyone involved.
Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.
With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits. Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.
If we are married or in a civil union and both our names are on the child’s birth certificate, do we still need to do a second parent adoption?
GLAD strongly recommends that you still need to do a second parent adoption. Because the marriage or civil union could encounter a lack of respect in some states, relying on the fact of the marriage or civil union alone to protect their children is not the best approach. It is advisable to continue the practice of securing a second-parent adoption in order to obtain a decree of legal parenthood that should be generally recognized and is independent of the marriage or civil union.
This document can only provide general information about the need to establish legal parenthood independent of a civil union. For you and your children, we cannot urge more strongly that you consult an attorney about undertaking co-parent adoption. Contact GLAD for more information and to obtain referrals to adoption attorneys.
Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins. This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court.
In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.
After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010. However, Lisa failed to appear at the appointed time, and an arrest warrant was issued. Lisa and Isabella still have not been found.
GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to http://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins.
If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?
The rights of a co-parent were addressed by the Rhode Island Supreme Court in a ruling handed down in September, 2000. When such a person can show she is a de facto parent, then she is entitled to a court hearing to address what custody, visitation and support arrangement is in the best interests of the child.68 To be qualified as a de facto parent, the legal parent must have consented to and fostered the relationship between the child and the de facto parent; the child and de facto parent must have lived together; the de facto parent must have performed parental functions for the child to a significant degree; and the child and de facto parent must have developed a parent-child bond.
One other helpful point about the Rubano case is that it clarifies that a parenting agreement can be used to bar a parent from claiming that his or her former partner has no grounds for making a custody or visitation claim. In some cases, parties to the agreement may also seek to enforce the agreements in court.
Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication:Protecting Families: Standards for Child Custody in Same-Sex Relationships.
Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?
There are a number of steps that can be taken, although none offer the security of a second parent adoption.
- Co-Parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements will likely not be enforced by courts per se, they very well could be by other entities in Rhode Island, and they are also important and potentially influential indicators of what the couple believed was in the best interests of the child.
- Wills: The legal parent may nominate a guardian of the child upon the parent’s death.69 These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
- Power of Attorney and Temporary Guardianship: This document is signed by the parent and authorizes another person (the attorney-in-fact and temporary guardian) to make a wide variety of decisions and arrangements for the child, including matters related to school, medical care and finances.
- Co-guardianship: While there is no express provision in the law allowing for appointment of co-guardians, and although the practice varies to some degree across the State, some probate courts allow a parent to name the other non-legal parent as a co-guardian so that the other parent may secure medical attention for the child and act as a parent.70 This status is not permanent, and may be terminated by a court.71
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBT parents;
- Honor existing relationships regardless of legal labels;
- Honor the children’s existing parental relationships after the break-up;
- Maintain continuity for the children;
- Seek a voluntary resolution;
- Remember that breaking up is hard to do;
- Investigate allegations of abuse;
- The absence of agreements or legal relationships should not determine outcome;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments.
For more detailed information about these standard see the publication Protecting Families: Standards for LGBT Families at: http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf.
If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?
In Rhode Island, the question should turn on whether there is evidence of direct harm to the best interests of the child, although there has been no reported case on the subject. As a general matter, “(i)n any proceeding or suit in any court, neither parent shall have any natural priority or preference in any matter relating to their minor children.”72 Specific acts of parental misconduct are relevant to determinations of child custody.73
What are the factors for making custody determinations generally?
In Rhode Island, the leading case regarding the best interests of the child is Pettinato v. Pettinato.74 The Rhode Island legislature has not statutorily defined the factors that comprise a child’s best interests, but in the Pettinato case, the Rhode Island Supreme Court listed eight factors that should be considered by courts to determine the best interests of the child:
- The wishes of the child’s parent or parents regarding the child’s custody;
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference;
- 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;
- The child’s adjustment to the child’s home, school, and community;
- The mental and physical health of all individuals involved;
- 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 parent-child relationship between the child and the other parent.75
In addition, Rhode Island Law requires courts to “consider evidence of past or present domestic violence, if proven, as a factor not in the best interest of the child.”76
As to visitation, the law provides that whichever parent does not have primary physical custody of the child shall be granted a reasonable right of visitation, unless there is a showing of cause why the right should not be granted.77
How is “sexual orientation” used in custody proceedings?
In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child. Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model. Or a parent may argue that the ex’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.78 Contact GLAD for further resources.
Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?
It can make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a substantial change in circumstances. If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.79
If circumstances have changed so that a modification complaint is appropriate, then the standard once again is what arrangement is in the best interests of the child.
Can a court keep my kids from visiting when my partner is present?
Courts have the power to do this, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.80
What is domestic violence?
Under the laws for the Family Court and the District Court, “domestic abuse” means the occurrence of one or more of the following acts between people who are family members, parents, or persons who are or have been in a substantive dating relationship within the past year, or against the minor child of one of the parties:
- attempting to cause or causing physical harm;
- placing another in fear of imminent serious physical harm;
- causing another to engage involuntarily in sexual relations by force, threat of force, or duress; and
- stalking or cyberstalking.81
Note that the District Court rules also prohibit abuse between cohabitants and apply to substantive dating relationships regardless of the age of the parties, and are thus broader than the Family Court provisions.
Do the domestic violence laws apply to people in same-sex relationships?
Yes, if you are married or in a civil union. Even if you are not, some same-sex relationships are covered under the definition of “substantive dating relationship.” This includes relationships which are “significant and personal/intimate” based on the length of time of the relationship, the type of relationship, and the frequency of interaction between the parties.82 Other relationships may be covered if partners or former partners share legal parentage of a child.83 As well, in the District Court, partners who live together or have lived together within the past three years may be considered “cohabitants.”84
How do I get a court order protecting me from an abusive partner?
The process is intended to be simple. You may go to the District Court or Family Court where you live, or if you have just fled your home, in the town where you used to live. You will need to fill out a complaint alleging “abuse” as defined above. The complaint is under oath, so everything you say must be true. Try to put in as much detail as possible demonstrating why you feel threatened.
If you are in danger of harm, the Court can grant you a temporary protective order for not more than 21 days, which can include an order restraining your abuser from hurting you, barring him or her from entering your home, assigning child custody and requiring payment of child support. If the courts are closed (nights, holidays, weekends), you can contact the local or state police, who will be able to contact a judge on call to handle these matters.
The defendant/abuser must be served with (given a copy of) the court order and notified of his or her right to contest the order in court. Once the order is issued, it is filed with the state Bureau of Criminal Identification and is effective state-wide. Violation of a court order of which an abuser has notice is a criminal offense.85
The Court will also assign a date for another hearing at which the temporary order will either be extended or dismissed. At that time, both parties often have attorneys. You should bring with you any witnesses who can substantiate the abuse, as well as copies of threatening letters, medical records, or any other documents which can show how you have been harmed and why you are afraid. Expect to be asked questions by both the judge and the attorney(s) for the abuser/defendant. You have the same right to ask questions.
If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed. If you don’t show up, it is possible that the court will think you are unreliable and may hold that against you should you need legal help in the future.
There are other laws which prohibit stalking, harassing and trespassing which may apply to you, but are beyond the scope of this document.
If I go to court, will I out myself for all purposes?
Not necessarily. Some courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship which they do not want revealed. If you proceed in the District Court rather than the Family Court, you do not have to claim that you are in a “substantive dating relationship,” but only that you are cohabitants to get a protective order, and thus you may be able to conceal your sexual orientation if you choose.86
Where can I go to get help?
In addition to the local police and district attorney, you can call the Rhode Island Coalition Against Domestic Violence at (401) 467-9940, www.ricadv.org, or Day One, the Sexual Assault and Trauma Resource Center, at (401) 421-4100 or (800) 494-8100, www.dayoneri.org
Does domestic violence play a role in custody decisions?
Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child.87
47 R.I.G.L. § 15-2-1.
48 R.I.G.L. §§ 15-2-8, 15-3-8
49 R.I.G.L. § 15-3-12.
51 See the following publication from the National Center for Lesbian Right: http://www.nclrights.org/wp-content/uploads/2013/07/Divorce_in_DOMA_States_Attorney_Guide.pdf.
52 R.I. Gen. Laws, § 28-48-1 (5).
53 R.I. Gen. Laws, § 36-12-2.4.
54 See R. I. Pub. Laws. 2007, ch. 510.
55 House Bill 2009-H 5294 which amends R.I. Gen. Laws, §§ 5-33.2-24 & 23-4-10.
56 R.I. Gen. Laws, § 5-33.2-24(2)(i).
58 R.I. Gen. Laws, § 44-30-12(c)(6).
59 See Doe v. Burkland, 808 A.2d 1090, 1094 (R.I. 2002) (allowing contract claim by former same-sex partner; “The mere existence of a sexual relationship between two parties does not impair the right to contract with each other for consideration independent of the relationship.”).
60 R.I. Gen. Laws, § 18-16-1 et seq.
61 R.I. Gen. Laws, § 33-1-1 et seq.
62 R.I. Gen. Laws, § 33-5-1 et seq.
63 R.I. Gen. Laws, § 5-33.3-3.
64 R.I. Gen. Laws, § 5-33.3-4.
65 R.I. Gen. Laws, § 23-4.10-2
66 See Doe v. Burkland, 808 A.2d 1090 (R.I. 2002).
67 R.I. Gen. Laws, § 15-7-4 (a).
68 Rubano v. DiCenzo, 759 A.2d. 959 (2000).
69 R.I. Gen. Laws, § 33-15.1-7
70 R.I. Gen. Laws, § 33-15.1-5.
71 R.I. Gen. Laws, § 33-15-18 (“The court shall remove any…guardian…upon finding that the [guardian] has not fulfilled, or is no longer able to fulfill, the duties of the appointment as set forth by the order itself and/or the limited guardianship and guardianship law.”).
72 R.I. Gen. Laws, § 33-15.1-3.
73 R.I. Gen. Laws, § 15-5-3.1(b).
74 582 A.2d 909 (R.I. 1990).
75 Pettinato 582 A.2d at 913-914.
76 R.I. Gen. Laws, § 15-5-16.
77 R.I. Gen. Laws, § 15-5-16(d)(1).
78 Compare Suddes v. Spinelli, 703 A.2d 605, 607 (R.I. 1997) (visitation rights only denied “in an extreme situation in which the children’s physical, mental or moral health would be endangered”).
79 See King v. King, 114 R.I. 329, 330, 333 A.2d 135, 137 (1975)(changed circumstances shown when four years passed and boy passed from childhood to adolescence); Kenney v. Hickey, 486 A.2d 1079, 486 A.2d 1079, 1082 (R.I. 1985).
80 Compare Seravo v. Seravo, 525 A.2d 922 (R.I. 1987) (father’s visitation rights terminated where he sexually assaulted his child and the child was still traumatized from the abuse).
81 SeeR.I. Gen. Laws, § 15-15-1 (2) (family court); 8-8.1-1(3) (district court).
82 R.I. Gen. Laws §§ 15-5-1 (5); 8-8.1-1(3).
83 R.I. Gen. Laws § 15-5-1 (3).
84 R.I. Gen. Laws § 8-8.1-1 (1).
85 See generally, R.I. Gen. Laws, §§ 15-15-1 et seq.; 8-8.1-1 et seq.
86 R.I. Gen. Laws, § 8-8.1-1.
87 R.I. Gen. Laws, § 15-5-16.