Know Your Rights: Family Rights in Rhode Island
Family | Parenting | Rhode Island
What is the Rhode Island Parentage Act?
Signed into law in July 2020, the Rhode Island Uniform Parentage Act (RIUPA) replaces the Uniform Law on Paternity and outlines ways to establish parentage of a child and how to establish parentage under each path. The RIUPA comprehensively updates Rhode Island parentage law and aims to ensure each child has a clear path to secure their legal parentage.
The RIUPA, more specifically, ensures greater protections and equal treatment for LGBTQ+ couples. The law allows LGBTQ+ couples access to establishing parentage through a simple civil Voluntary Acknowledgement of Parentage, ensuring LGBTQ+ couples are able to establish their parentage immediately at birth of their child. It also creates, for the first time in Rhode Island, an accessible path to parentage for children born through assisted reproduction, as well as protections for children born through surrogacy.
What does parentage mean?
“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.
Why was the RIUPA passed now?
Rhode Island parentage laws had not been updated in over 40 years; updated legislation was long overdue. Rhode Islanders for Parentage Equality (RIPE), a coalition made up of families and organizations pushing for parentage equality in Rhode Island, has advocated for updated parentage laws for years. With the sponsorship of Rep. Carol McEntee and Sen. Erin Lynch Prata and the support of the administration of Governor Gina Raimondo, their hard work finally paid off.
Why is it important to establish parentage quickly?
Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.
How can Rhode Islanders establish parentage under the RIUPA?
The RIUPA provides that Rhode Islanders can establish their parentage in the following ways:
- Giving birth (except for people acting as surrogates)
- Presumption (including the marital presumption)
- Genetic connection (except for gamete donors)
- De facto parentage
- Assisted reproduction
- Gestational carrier agreement
Who is an intended parent?
An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child. The RIUPA addresses intended parents in the context of surrogacy separately from intended parents in the context of other forms of assisted reproduction. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.
Who is a presumed parent?
A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Voluntary Acknowledgement of Parentage (VAP), by an adjudication, or as otherwise provided in the RIUPA.
You are a presumed parent if any of the below are true:
- You are married to the child’s birth parent when the child is born;
- You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce;
- You married the child’s birth parent after the child was born, asserted parentage and are named as a parent on the birth certificate;
- You resided with the child in the same household, and you and another parent held the child out as your child for two years after birth or adoption and assumed personal, financial or custodial responsibilities for the child.
Who is a de facto parent?
A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence, all of the following:
- You lived with the child as a regular member of the household for a significant amount of time;
- You consistently took care of the child;
- You took full and permanent responsibility for the child without expectation of financial compensation;
- You held the child out as your child;
- You established a bonded and dependent relationship which is parental in nature;
- You had a parental relationship with the child that was supported by another parent;
- Continuing a relationship with the child is in the child’s best interest.
What is an Acknowledgment of Parentage?
Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgment of Parentage program.
Federal regulations require states to provide an Acknowledgment of Parentage program at hospitals and state birth record agencies. Acknowledgment of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.
By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgment of Parentage has the binding force of a court order and should be treated as valid in all states.
How do I establish my parentage through a Rhode Island Voluntary Acknowledgment of Parentage (VAP)?
You can voluntarily acknowledge the parentage of a child by signing a form from the Rhode Island Department of Health known as a “Voluntary Acknowledgement of Parentage” or VAP (To see a sample VAP form, go to: https://ocss.ri.gov/sites/g/files/xkgbur511/files/documents/Voluntary-Acknowledgment-Parentage-01.01.2020.pdf).
A VAP must be signed by the birth parent and the other parent. The other parent can be the genetic parent, an intended parent of a child born through assisted reproduction (except a gestational carrier agreement), or a presumed parent. Signing a VAP form is voluntary, and it can be done at the hospital soon after birth or at another time up until the child is 18. A VAP form must be witnessed and signed by at least one other person. If one person does not want to sign this form, then the other parent can try to adjudicate parentage through the courts.
If you have any questions about whether to sign a VAP form, you should consult with a lawyer before signing. A VAP form is the equivalent of a judgment of parentage by a court, and parentage is a considerable, life-long responsibility.
Are there any costs related to the VAP?
A fee is charged for all Certified Vital Records, including the VAP. The processing fee for a VAP is $15. The cost of a Certified Birth Certificate is $22 drop off or $25 for mail-in service. The Voluntary Acknowledgement of Parentage document (VAP) is issued upon request as a supporting document that accompanies the Certified Birth Certificate.
When can I not establish parentage through a VAP?
- A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
- Parentage cannot be established through an Acknowledgment of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage.
- A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgment of Parentage until the child is two.
When can a parent sign a VAP?
A VAP can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgment of Parentage can also be completed before the child’s birth but will not take effect until the child is born.
How can a VAP be rescinded?
A party who signed the VAP may rescind an acknowledgment of parentage or denial of parentage by commencing a court proceeding before the earlier of:
(1) Sixty (60) days after the effective date of the acknowledgment or denial, as provided, or
(2) The date of the first hearing before a court in a proceeding, to which the signatory is a party, to adjudicate an issue relating to the child.
What if I am a non-biological parent? How can I establish myself as a legal parent?
The RIUPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction other than surrogacy, you can establish parentage by signing a VAP.
All parents can establish parentage through a court order. A presumed parent or an intended parent of a child conceived through assisted reproduction can seek a judgment declaring the person a parent of the child or do a co-parent or second parent adoption. Some non-biological parents can establish parentage through the RIUPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.
How does the RIUPA help people conceiving through assisted reproduction?
The RIUPA provides important clarity and protections for children born through assisted reproduction. The RIUPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the RIUPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent.
What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?
A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Rhode Island.
What is the advantage of doing a second-parent adoption or joint adoption?
Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second-parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will and may be able to collect Social Security survivor benefits.
Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.
Do we need to do a second-parent adoption if we are married?
When a child is born into a marriage, Rhode Island law and the law of all states, presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second-parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.
Now Rhode Island couples have a second way to protect the parentage of the non-biological partner by signing a Voluntary Acknowledgment of Parentage.
If I am a parent who has signed a VAP, do I also need to do a second parent adoption?
No. A parent who has signed a VAP should not need to do a co-parent adoption to establish parentage. A VAP establishes legal parentage under state law, is the equivalent of a judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.
Since expanded access to acknowledgments of parentage is an emerging development, some parents might feel more comfortable also completing a second parent adoption in addition to or instead of a VAP. To understand what is best for your family, individualized legal advice is recommended.
How does the RIUPA address surrogacy?
The RIUPA has comprehensive provisions about how to establish parentage through a gestational carrier agreement. All parties to a gestational carrier agreement must have independent counsel throughout the process. This is a brief overview of the law for informational purposes.
Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement. This agreement is between you, any other intended parents, the person acting as a carrier, and the spouses of any of those parties (if applicable). This agreement will establish that you are the parent(s) of the child and that the carrier and their spouse, if applicable, do not have parental rights or duties. To enter into a gestational carrier agreement, the following must be true:
- All intended parents and the carrier must be at least 21;
- All intended parents and the carrier must have completed a medical evaluation and mental health consultation; and
- The intended parent(s) and the carrier must be represented by separate lawyers for the purposes of the agreement, and the carrier’s attorney must be paid for by the parent(s).
The law requires carrier agreements to incorporate several terms to be valid, such as allowing a surrogate to make their own health and welfare decisions during pregnancy and requiring the parent(s) to pay all related healthcare costs.
What does Rhode Island law say about traditional or genetic surrogacy?
The RIUPA allows in very limited circumstances for traditional or genetic surrogacy: a family member can serve as a gestational carrier using their own gametes. Someone who is not a family member cannot act in this role. Even with a family member, the law’s requirements for a valid agreement, and all of the other protections of the statute outlined above, apply.
What if I am not married?
The RIUPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the RIUPA aims to treat all Rhode Island families equally.
What if I am transgender or non-binary?
The RIUPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The RIUPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the RIUPA aims to treat all Rhode Island families equally.
What protections are there for survivors of domestic violence so that they are not pressured into establishing legal parentage?
The RIUPA aims to ensure that the establishment of parentage is fair, clear, efficient, and child-centered. Some legal parentage–such as the nonmarital presumption and de facto parentage–can arise by consent. No one should ever be pressured to consent to parentage.
The RIUPA contains provisions that allow parents to challenge another person’s parentage if the other person claims to be a presumed parent or a de facto parent but satisfies the requirements for parentage through duress, coercion, or threat of harm.
Where can I go if I need help resolving a parentage issue?
As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or call 800.455.4523 (GLAD).
Rhode Island Uniform Parentage Act: General Laws of Rhode Island | Chapter 15-8.1 – Uniform Parentage Act | Casetext.
More information about the RIUPA: Rhode Island Uniform Parentage Act (RIUPA) | Office of Child Support Services.
Protecting Families: Protecting Families: Standards for LGBTQ+ Families – GLAD.
Parenting a Transgender Child: Parenting a Transgender or Gender-Expansive Child: How to Protect Your Family Against False Allegations of Child Abuse.
Family | Relationships | Rhode Island
What role did GLAD play in the fight for marriage equality?
GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections and responsibilities of marriage but called them civil unions or registered domestic partnerships.
GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health.
This was followed by:
- Maine approved domestic partnerships in 2004, which provided some of the protections of marriage;
- civil unions in Connecticut in 2005;
- GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008;
- civil unions in New Hampshire in 2008;
- Vermont provides marriage for same-sex couples in 2009;
- Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009;
- marriage in New Hampshire in 2010;
- Connecticut converts all its civil unions into marriage in 2010;
- conversion of New Hampshire civil unions to marriage in 2011;
- civil unions in Rhode Island in 2011;
- marriage in Maine in 2012;
- marriage in Rhode Island in 2013;
- civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage.
At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996, which was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry that those marriages would not be recognized by the federal government. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.
Finally, in Obergefell v. Hodges, on June 26, 2015, the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs at oral arguments. Post Obergefell, all 50 states are required to issue marriage licenses to same-sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.
Can same-sex couples 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, that extended the right to marry to same-sex couples effective August 1, 2013.
That legislation also ended 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 keep their civil unions or merge their civil unions into marriage. Rhode Island also respects civil unions and registered domestic partnerships from other states.
For information about how to get married in Rhode Island, see: GENERAL MARRIAGE REQUIREMENTS IN THE STATE OF RHODE ISLAND.
Will other states and the federal government respect my marriage?
Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.
Can I obtain Social Security survivor benefits if my spouse dies?
Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.
However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.
To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security).
These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.
The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal.
What happens if we need to end our marriage?
After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Rhode Island applies its divorce statutes to same-sex couples.
However, spouses should note that when Rhode Island courts divide marital property and award alimony, one of the factors a judge considers is the length of the marriage. The judge cannot include as marital property, property held in the name of one spouse if held by that spouse prior to marriage. Unfortunately for spouses whose partnership predated marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.
If you are going through divorce proceedings in Rhode Island and believe your division of assets may be unfairly affected by the length of the marriage, contact Glad Answers.
Does Rhode Island still allow civil unions?
Not anymore. Rhode Island stopped offering civil unions in 2013, but did not automatically convert them to marriage. If you have a civil union (or registered domestic partnership) from Rhode Island or another state, Rhode Island will grant you the same rights and benefits, and hold you to the same responsibilities, as a married couple in Rhode Island. However, with the exception of Social Security, the federal government will not recognize your civil union.
What is domestic partnership?
Although it is a term used in many contexts, “domestic partnership” 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 insurance 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.”
Does Rhode Island offer domestic partner benefits?
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 unmarried couples.
In order to qualify, both partners must certify by affidavit that (1) they 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 two 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 these: (i) joint ownership of a motor vehicle; (ii) a joint checking account; (iii) joint credit account; (iv) joint lease; and/or (D) 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 and COBRA health insurance benefits for a state employee’s domestic partner; 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.”
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.
Also, On July 1, 2018, the Healthy and Safe Families and Workplaces Act went into effect requiring employers with 18 or more employees to provide at least one hour of paid sick leave for every 35 hours worked.
Employers with fewer than 18 employees must provide sick time, but it does not need to be paid. The law guarantees eligible workers up to 24 hours of sick time per year beginning in 2018 before increasing to a maximum of 32 hours in 2019 and 40 hours in 2020. This law allows employees paid sick leave for themselves or to care for family or anyone they are living with, including a domestic partner.
Are other benefits available to domestic partners of public employees?
Under Rhode Island law, various death benefits or annuities, accidental death benefits or retirement benefits are available to the domestic partners of judges, teachers, police officers, firefighters and some other workers. If you believe you fall in one of these categories, you should consult a lawyer.
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 insurance plan.
What other protections does state law provide to domestic partners?
In January 2010, the Rhode Island legislature passed legislation 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.” 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.
What kinds of domestic partner benefits may private employers provide?
Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.
Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of his or her partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.
As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.
However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if his or her partner decides to name someone else 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 his or her partner’s designation of another person for survivor benefits.
What steps can a couple take to legally safeguard their relationship in Rhode Island?
There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.
- 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. 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 (such as one’s partner) as their “attorney-in-fact” for financial matters in the event that one becomes incapacitated or disabled. The law provides a “short form” which allows you to mark the kinds of transactions you wish your partner (your “attorney-in-fact”) to perform. These include: (a) real estate transactions; (b) chattel and goods transactions; (c) bond, share and commodity transactions; (d) banking transactions; (e) business operating transactions; (f) insurance transactions; (g) claims and litigations; (h) benefits from military service; (i) records, reports and statements; and (j) all other matters. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. This power of attorney does not include health care decisions.
- Health Care Power of Attorney: 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 statute provides a “statutory form” that you can use for your Health Care Power of Attorney.
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 either by one notary public or by two witnesses. None of these signers may be your designated or alternate agent; a health care provider or a health care provider employee; or the operator of a community care facility or an employee of such a facility. 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.
- 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.
- Will: Without a will, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next of kin cannot be located, to the state. If you wish to provide for others, such as your partner, a will is essential. Even if you have few possessions, you can name in the will who will administer your estate. If you have children, you can nominate their future guardian in a will.
- 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. The document must be signed by the individual and should be notarized. 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.”
In 2018, Rhode Island passed a law that requires the death certificate to reflect the gender identity of the decedent as reported by the next of kin, or the best qualified person, or by a document memorializing the decedent’s wishes. To ensure that this happens, it is best to give the person you appoint as your “funeral planning agent” a notarized document that attests to your gender identity.
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents.
Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better 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 an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.
If an unmarried couple separates, what is the legal status of a relationship or 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.80 Written agreements offer vastly greater security, however, providing the court with a roadmap as to the intentions of the parties.
PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, 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 your present wishes.
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 LGBTQ+ 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 outcomes;
- 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 standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families.
How does a court generally go about making custody determinations?
In Rhode Island, the leading case regarding the best interests of the child is Pettinato v. Pettinato. 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.
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.”
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.
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.
If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?
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.” Specific acts of parental misconduct are relevant to determinations of child custody.
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.”
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.
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.
History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia.
Civil Union and Domestic Partner Benefits: Domestic Partner / Civil Unions Benefits | Human Resource Administration.
Rhode Island Estate Planning Laws: Rhode Island Estate Planning Laws – FindLaw.
Divorce: The Basic Divorce Process – RILS.
Rhode Island Child Custody Laws: The Basic Divorce Process – RILS.
Cases & Advocacy
To see Family cases or advocacy which GLAD has been directly involved with in Rhode Island, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Rhode Island.”
News & Press Releases
To see news and press releases about Family in Rhode Island, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Rhode Island.”