Can Children Express Preference in Rhode Island Custody Proceedings?

Find out if your child has an influence on custody trials.

Parents always want what’s best for their child, but when they’re embroiled in conflict, it’s all too easy to lose sight of what’s most important. In fact, when parents who have broken up can’t agree about custody, they’ll have to go to court and ask a judge to decide for them.

When a custody case winds up in court, both parents have the opportunity to explain their respective positions to the judge and argue for what they want. But what about what the child wants? Do Rhode Island’s judges ever consider the opinion of children when deciding custody cases?

Overview of Custody Decisions in Rhode Island

There are two kinds of custody in Rhode Island: physical and legal. Physical custody pertains to where the child lives, which parent provides what kind of care for the child, and how much time each parent will spend with the child. Legal custody, on the other hand, has to do with a parent’s right to help make critical decisions on behalf of the child, like the child’s medical, educational, cultural, and religious upbringing.

Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.

To make an initial custody determination, Rhode Island judges are required to consider a list of factors that were first set forth in a landmark decision issued by the Rhode Island Supreme Court,  Pettinato v. Pettinato, 582 A.2d 909, 914 (R.I. 1990). These factors collectively shape the child’s best interests. The court can’t consider just one factor in isolation; they all have to be considered together. The factors are:

  • the wishes of the child’s parents regarding 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 parents, siblings, and any other person who affects the child’s best interests
  • the child’s adjustment to home, school, and community
  • the mental and physical health of everyone involved in the case
  • the stability of the child’s home environment
  • the moral fitness of the child’s parents, and
  • each parent's willingness and ability to facilitate a close and continuous parent-child relationship between the child and the other parent.

In addition to the  Pettinato  factors, Rhode Island law requires the court to consider the safety and well-being of a child if either parent has committed domestic violence or has a history or causing physical harm to someone outside the family.

For more information about custody decisions and family law matters, see the  Rhode Island Judiciary's family court website, which contains forms and other information.

When Will the Court Consider a Child’s Preference?

Rhode Island law is clear that a child’s custodial preference will be considered, among all other factors, if the preference is reasonable and if the child is intelligent, understanding, and experienced enough to offer a reasonable opinion. There isn’t any hard and fast rule about how old or how experienced and intelligent the child has to be. The decision varies with the facts of each case, and judges have the discretion to decide whether the child’s preference should be considered.

Rhode Island case law offers some examples of when a child’s preference should and should not be considered. In one case, an eleven-year-old girl “expressed a strong desire not to see the father” because she had virtually no relationship with him and felt that visits were having a harmful physical effect on her; the court considered this testimony along with the other factors.  Africano v. Castelli, 837 A.2d 721, 729 (R.I. 2003). In another case, sixteen-year-old and twelve-year-old brothers testified that although they loved their mother, her bipolar disorder made their lives stressful and tense and they wanted to live with their father because his home was more structured and the father offered leadership and guidance; the court gave great weight to the boys’ testimony.Sleboda v. Sleboda, 445 A.2d 276, 277 (R.I. 1982). In yet another case, a nine-year-old girl testified that she loved her father more and wanted to move to Israel with him, but was willing to spend one month of the year with her mother; the court found this was a reasonable preference.  Goldstein v. Goldstein, 341 A.2d 51, 52 (R.I. 1975). Finally, where a twelve-year-old boy explained that he wanted to live with his father because he was approaching manhood and wanted to engage in hunting, fishing, and hiking activities, which he could only do with his father; the court gave weight to the boy’s preference.  King v. King, 333 A.2d 135, 137 (R.I. 1975).

All of these examples demonstrate that where a child’s preference is reasonable and intelligent, the court will take it into consideration. By contrast, if a child is too young or lacks the experience and intelligence to express a rational preference, the court will not give the preference any weight. For example, if a child testified that she wanted to live with her father because he allowed her to stay up late on school nights, the court would disregard the child’s preference.

Do Children Have to Testify About Their Custodial Preferences in Court?

Rhode Island family court judges are unlikely to require a child to testify in open court, in front of both parents. The case law is clear that judges have the discretion to allow children to testify “in camera,” meaning that they can testify about custodial preferences or other sensitive experiences in the judge’s chambers or another secure location, and they don’t have to speak in front of their parents.

Alternatively, judges might allow children to testify in court but clear the courtroom of anyone but the judge and the court reporter. Such testimony is also outside the presence of the parents. The judge will ensure that a court reporter makes a transcript of the court’s interview with the child, and may even allow the parents’ attorneys to provide a list of questions that the judge may or may not choose to ask.

If you and your former partner or spouse can’t agree about who should have custody of your child,  consider retaining an experienced Rhode Island family law attorney.  A good attorney can help you navigate the often confusing court process, and can make sure that your voice is heard and your child’s best interests are met.

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