Custody Parentage Laws | Rhode Island
Can a single gay individual adopt a child in Rhode Island?
Yes (R.I. Gen. Laws § 15-7-4).
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.
More information on adopting in RI can be found, here.
Are there different kinds of custody?
Yes, four kinds:
- “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
- “Shared legal custody” means that both parents are involved in and make these decisions.
- “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
- “Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.
The court may also award custody to a third party if it finds it to be in the child’s best interests.
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 (582 A.2d 909 (R.I. 1990)). 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 (Pettinato 582 A.2d at 913-914).
In addition, Rhode Island Law requires courts to “consider evidence of past or present domestic violence” and arrange visitation to best protect the child and the abused parent from further harm” (R.I. Gen. Laws § 15-5-16(g)).
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 (R.I. Gen. Laws § 15-5-16(d)(1)).
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 (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”)). Contact GLAD for further resources.
Does it matter if my “ex” knew or suspected I was LGBTQ+ before we separated?
It may 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 change in circumstances that alters the child’s best interests. If a spouse did not know of your sexual orientation or gender identity at the time of the court proceedings but learned of it later, they may argue that this is a change of circumstances and that the custody issues should be litigated anew.
Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.
Is it considered harm to the child if he or she is teased about having a gay or lesbian parent?
It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.
As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use my sexual orientation 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” (R.I. Gen. Laws § 33-15.1-3). Specific acts of parental misconduct are relevant to determinations of child custody (R.I. Gen. Laws § 15-5-3.1(b)).
Can a court keep my kids from visiting when my partner is present?
Courts have the power to do this but should not do so unless it is clearly in the best interests of the child. Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.
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;
- Not allow the absence of agreements or legal relationships to determine outcome;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.
For more detailed information about these standard see the publication Protecting Families: Standards for LGBT Families.
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