Overview
A Rhode Island criminal domestic misdemeanor or felony case is often intertwined with complex issues concerning family law, child custody, child support, visitation, restraining orders, and divorce. Similarly, a Rhode Island family law case is often intertwined with criminal law issues. In some cases, there are three or more cases proceeding at the same time: a criminal case, a Complaint Protection from Abuse, and a divorce. There also may be a child support case, paternity proceeding, or juvenile proceeding pending. This article applies to misdemeanor criminal charges.
A misdemeanor is considered domestic if it involves certain family members, a spouse, girlfriend, or boyfriend. An assault, disorderly conduct, larceny, and other criminal charges can all be charged as domestic offenses. Therefore, if there is a domestic violence component to an assault case, the case will be charged as a domestic assault rather than just an assault.
In the event that a person is charged with a domestic offense, a no-contact order will be issued. The no-contact order will preclude the accused from having any contact with the victim, his or her spouse or significant other.
A no-contact order often wreaks havoc upon the family unit, especially when the parties are married or have children. The police will remove the accused from his or her residence, which creates a whole new set of challenges for the family. In many instances, the accused is the sole support for the family. Also, there are often visitation issues that arise immediately, as the accused often wants to visit his or her children.
The victim usually has her own opinions, which may or may not include the desire for the accused to visit with the children. Furthermore, the accused often has the need and desire to obtain personal belongings, such as clothes, toiletries, tools, work items, etc. Also, the victim may seek another restraining order from the Family Court or District Court and may seek child support.
Should I get a criminal lawyer or divorce lawyer to represent me in a criminal law or divorce case in Rhode Island?
An attorney is needed but not required. The old adage is that a person who acts as his own attorney has a fool for a client. Attorneys are familiar with the legal process, the law, the judges, and the legal system. In a criminal case, you have a right to a free criminal lawyer from the Public Defender if you meet income and eligibility requirements.
What is the difference between a domestic offense and a non-domestic offense?
Any offense which is charged as a domestic offense is more serious than the same one charged as a non-domestic offense. Under Rhode Island law, a person who is found guilty of a domestic offense or who takes a nolo contendere plea with a sentence of filing, probation, or suspended sentence must take a batterer’s intervention class. If found guilty of a domestic offense or if there is a plea bargain, then a no-contact order will enter automatically unless the victim is able to drop it.
A second conviction for a domestic offense in Rhode Island may lead to a minimum ten days in jail. A third conviction for a domestic offense may be charged as a felony. Keep in mind that not all plea agreements constitute a criminal conviction. In Rhode Island, any sentence with a suspended sentence, guilty finding, plea of guilty, fine, or period of incarceration constitutes a criminal conviction. A nolo contendere plea with probation or filing with court costs does not constitute a conviction. To potential employers, a domestic conviction also will look worse on the accused’s record than a non-domestic conviction.
Moreover, sentencing is usually harsher for domestic cases than for non-domestic offenses. Additionally, in domestic cases there is an additional two-year waiting period to expunge a domestic filing.
Upon entering a plea or being found guilty of a crime with domestic implications, the defendant will be ordered to complete a batterer’s intervention program which involves attending classes. The defendant can also be ordered to pay restitution to the victim, if applicable, and may be ordered to obtain substance abuse or mental health counseling. Failure to attend the batterer’s classes, failure to pay restitution, or failure to attend counseling could be considered a violation of probation, suspended sentence, or a filing.
What is a no-contact order?
In Rhode Island, a “no-contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the order. This includes, but is not limited to, letters, emails, text messages, or messages delivered through a third party.
In other words, if a person is under a no-contact order and sees the victim in public, he or she must leave the area immediately and not acknowledge the victim’s existence. A person cannot even say “hi” if the victim by chance walks by on the street.
A person can be arrested under Rhode Island law for violating a no-contact order, even if the victim initiates the contact and calls the defendant. A person can be charged with breaking a no-contact order even if invited back to the marital home.
How is a no-contact order dropped or dismissed?
The police cannot drop a no-contact order; only a judge can do so. The victim can attempt to drop the no-contact order at the arraignment. Prior to approaching the judge at the arraignment, the victim must speak with the domestic violence counselor at court. The judge may dismiss the no-contact order at the arraignment.
However, where the alleged abuse is severe or where there is a documented history of abuse, the judge may refuse to drop the no-contact order. The order may not be dropped by the judge if the victim states that she is still afraid of the accused. It is much easier to drop the no-contact order at the pretrial hearing then it is to drop it at the arraignment. Some judges are hesitant to drop the no-contact order at the arraignment; the judge will typically ask the police present at the arraignment whether they have any objections to the no-contact order being dropped
Can the victim dismiss a no-contact order after the arraignment but before the pretrial conference?
In the event that the victim wants to drop the no-contact order after the arraignment but before the pretrial conference, the victim can go to the clerk and ask that the file be brought in front of the judge. After conferring with the domestic advocate, the judge will rule on whether the no-contact order will be dropped.
Can a no-contact order be dropped at the pretrial conference?
The victim who wants to cancel the no-contact order will have another opportunity to do so at the pretrial conference. The pretrial conference is typically scheduled a couple of weeks after the arraignment. At the pretrial conference, the victim can approach the judge and again seek to have the order dropped
Will the criminal judge in District Court resolve visitation or custody issues?
No.
The criminal court will not get involved in family-related issues such as child custody, child support, alimony, paternity, relocation out-of-state, equitable division of marital property, visitation, payment of marital bills, payment of mortgage, payment of credit cards, disposition of the marital real estate, etc. Those issues are the province of the Rhode Island Family Court, not the District Court.
The Court has the power to order restitution to a victim for any actual damages suffered by the victim as a result of the crime, such as destruction of property, medical bills, or stolen funds.
How do I recover my personal belongings when there is a no-contact order?
There are several ways for an accused to properly obtain his/her personal belongings when a no-contact order is in effect. Personal belongings usually consist of personal property such as clothes, sneakers, uniforms, and personal effects. The accused can contact the police department where the victim resides and seek to make arrangements to pick up personal belongings. The police will often escort the person to the home. The downside of this arrangement is that the police often are in a rush and enforce a severely Draconian time limit.
If the accused has a private attorney, he can contact the victim’s attorney, who in turn can contact the victim to make arrangements. This can have its pitfalls, because the victim may be hostile or the victim may have no interest in negotiating
The accused can attempt to arrange to get his belongings through a third party, although the accused must be careful not to violate the no-contact order.
When does a no-contact order in Rhode Island expire?
A no-contact order expires when the sentence period is finished. A no-contact order also expires if the case is dismissed or the defendant is found not guilty. The no-contact order expires if the judge terminates the order at the request of the victim.
Be careful, because there may also be another restraining order issued as a result of a divorce or Family Court matter or a District Court restraining order.
What happens if a person on bail, probation, filing, or suspended sentence violates a no-contact order?
A person who is on probation, bail or a probation attached to a suspended sentence must be even more vigilant in not violating a no-contact order.
A violation of a no-contact order is a crime in itself, which is also a violation of the conditions of probation, filing, or bail. A person on probation or bail can be held in jail if he or she is accused of violating a no-contact order. For example, if a person is on probation or bail, a single phone call made to a victim under the protection of a no-contact order probably means a minimum of ten days in jail.
A probationary period or filing period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble. A person must be even more vigilant if there is a no-contact order, Order Protection from Abuse, or restraining order in effect. A violation of a no-contact order or a Family Court restraining order is a violation of probation.
A person with a suspended or stayed sentence faces the most potential risk regarding violation of probation. A probation violation resulting from the violation of a no-contact order by a person with a suspended sentence could result in an order to serve the remainder of a suspended sentence at the adult correctional institution.
For example, a person on probation may get into deeper trouble when communications are resumed with a wife or girlfriend, despite the fact that a no-contact order is in effect. If there is an argument or allegations of domestic assault or abuse, the police may arrest the person and hold him as a probation violator, as well as adding new charges for domestic assault and violation of a no-contact order or restraining order.
Family Court restraining orders: “Complaint Protection from Abuse” and civil restraining orders and their relation to criminal law.
There are two types of Family Court restraining orders: “Complaint Protection from Abuse” and a civil restraining order. Both of these types of restraining orders can be in addition to divorce proceedings.
A defendant must be careful to determine whether there is a separate order from the Rhode Island Family Court, as the court has jurisdiction to issue a protection from abuse restraining order for up to three years. The court can issue restraining orders for persons who are married, divorced, family members, or who have children in common, as well as other situations set forth in the statute. There may also be a restraining order issued by a court of another state or another court.
A protection from abuse case is not a criminal case. However, the violation of a Family Court Complaint Protection from Abuse restraining order is a crime in itself and may also constitute a violation of probation, bail, and violation of conditions of a filing.
A violation of a Family Court restraining order which is not a Complaint Protection from Abuse is not a crime. The violation of this type of order is punishable by contempt. However, if the restraining order contains language that violation of the order is a crime, there might be criminal implications.
Civil restraining orders are not nearly as effective as Complaint Protection from Abuse restraining orders. Civil restraining orders are typically part of a divorce.
In a Complaint Protection from Abuse case, can the court get involved in child custody, visitation, and child support?
Yes. In a Complaint Protection from Abuse case, the Family Court can award temporary child support, visitation, and temporary custody of the children. The court can order that the defendant vacate and remain out of the household. The court can also order that a person take batterer’s classes, undergo drug and alcohol testing or counseling, and surrender firearms to the police.
Is a violation of a Rhode Island District Court restraining order a crime?
Yes.
Should a restraining order be filed in District Court, Family Court, or Superior Court?
If the restraining order is against a current boyfriend or girlfriend, or against an ex-boyfriend or girlfriend with whom there was a substantive dating relationship within the prior year but where there are no children, then Rhode Island District Court is the proper forum.
If you have a child with your current or ex-boyfriend/girlfriend, then the restraining order should be filed in the Family Court.
A restraining order against a current roommate can be filed in District Court.
If you are seeking a restraining order against a prior friend, neighbor, landlord, or anyone else, then the restraining order must be filed in Superior Court. Violation of a Superior Court restraining order does not constitute a crime, but is punishable by contempt, which could potentially lead to a period of incarceration.
What is the difference between a restraining order and a no-contact order?
A no-contact order is an order resulting from a criminal charge, and issues at an arraignment, either at the police station or at court. Violation of a no-contact order is a crime in itself and may constitute a violation of probation or a filing. A no-contact order expires when the case is over (dismissal or not guilty finding) and at the end of any probation, filing, or suspended sentence.
A restraining order stays in effect until the date designated on the restraining order. A restraining order will stay in effect even if the defendant is found not guilty or the criminal case is dismissed.
If there is a no-contact order protecting me, should I also obtain a restraining order?
It depends. A no-contact order expires when a case is dismissed, when a person is found not guilty, or when a probationary period or filing or suspended sentence is over. If you feel you need protection in case the no-contact order expires and you are in fear of the person, then you may consider seeking a restraining order in addition to the no-contact order.
If there are issues concerning child support and visitation, then you may want to seek a restraining order in addition to the no-contact order.
How are family-related issues, such as child custody and visitation, resolved when a criminal case is pending?
If your spouse or girlfriend or boyfriend is preventing you from visiting or talking to your child as a result of a criminal case or no-contact order, then you may need to file for divorce or a separate action for custody or visitation in the Family Court.
The Family Court can set visitation and child support as part of a Complaint Protection from Abuse restraining order. In some instances, where domestic violence is alleged or where there are issues concerning alcohol, drug abuse, or mental health, the Family Court may order supervised visitations. These visitations may occur at the Family Court or may be supervised by a third party.
Can a defendant testify in a Complaint Protection from Abuse hearing when he or she has a pending criminal charge?
This is an important determination for the defendant. The defendant must consult with his or her attorney and weigh the pros and cons of testifying in the hearing. A defendant in a criminal case has the right to invoke Fifth Amendment protections and not testify. Therefore, a defendant in a Complaint Protection from Abuse case must be careful, because any testimony in the abuse case can be used against the person in the criminal case. The defendant can seek to continue the abuse case until the criminal case is resolved.
In which Rhode Island county will criminal law and divorce cases be heard?
All the counties in Rhode Island follow the same general rules and procedures.
