State Laws and Legislation

Rhode Island Custody and Visitation Law

There are no published cases specifically dealing with gay, lesbian, bisexual or transgender parents. Rhode Island courts, however, do not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Rhode Island law states: “In regulating the custody of the children, the court shall provide for the reasonable right of visitation by the natural parent not having custody of the children, except upon the showing of cause why the right should not be granted. The court shall mandate compliance with its order by both the custodial parent and the children. In the event of noncompliance, the non-custodial parent may file a motion for contempt in family court. Upon a finding by the court that its order for visitation has not been complied with, the court shall exercise its discretion in providing a remedy, and define the non-custodial parent’s visitation in detail. However, if a second finding of noncompliance by the court is made, the court shall consider this to be grounds for a change of custody to the non-custodial parent. …

“Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. The provisions of this chapter applicable to the father and child relationship shall apply as far as practicable.”

In a 1990 case, Pettinato v. Pettinato, the mother appealed the trial court’s award of custody to the father. Although the father was named on the child’s birth certificate, he was not the biological father. The mother never questioned paternity until the divorce proceedings. The state Supreme Court noted that the Legislature had never defined what “best interests of the child” meant — rather, the courts had developed this concept in Rhode Island. The high court noted that the best interests of the child included: 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; and the moral fitness of the child’s parents. After applying these factors, the state Supreme Court agreed with the trial judge that the best interests of the child would be served with the father having custody.

Custody and Visitation for Same-Sex Co-Parents
Rhode Island courts will allow a former same-sex partner (with no legal or biological relationship to the child(ren)) to petition for visitation.
In one 2000 case, Rubano v. DiCenzo, a same-sex couple had a child during their relationship. After the relationship dissolved the biological mother refused to honor a written agreement to allow her former partner visitation with the child. The family court, unsure whether it had jurisdiction to resolve this matter, referred the case to the state Supreme Court. The high court held that the family court did have jurisdiction to determine whether a de facto parental relationship existed between the non-biological parent and, if so, what visitation rights the non-biological parent should have. The state Supreme Court concluded: “The mere fact of biological parenthood, even when coupled with the biological parent’s ongoing care and nurture of the child and that parent’s fundamental right ‘to make decisions concerning the care, custody and control of [his or her] children’ does not always endow the biological parent with the absolute right to prevent all third parties from ever acquiring any parental rights vis-à-vis the child.” Furthermore, even though a written agreement existed between the couple, the court held that even if the order had not existed, the former partner would have been entitled to prove that she was a de facto parent and eligible for visitation rights.

Citations: R.I. GEN. LAWS §15-5-16(d)(1); R.I. GEN. LAWS § 15-8-26; Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990); Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000).


 


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Last Updated: 10/13/2004 

Updated: Tue, October 12, 2004 - 11:00:18