Rhode Island child support modification can be a frustrating situation not only for clients but also for lawyers.
CONSIDER THIS SCENARIO
Imagine that you are a client who has placement of three children. Your ex-spouse is making considerably more money than when you divorced and the cost of living has risen.
First, you contact a lawyer about your child support rights and whether modification is appropriate.
Second, after finding out that modification is appropriate you speak with your ex-spouse and he is unwilling to agree to give you a dime more than you are already receiving in court ordered child support. So you resort to having your attorney send a letter to your ex-spouse asking for agreement of a small increase and that if you cannot agree that a Motion to Modify will have to be filed with the court.
Sounds simple enough doesn't it? If the ex-spouse doesn't agree then you file a Motion to Modify and the court will modify your child support if you meet your burden of proof, namely that there has been a substantial change in circumstances since the last order was set.
Enter the ex-spouse who gets an attorney friend to serve the placement parent with 6 motions on the day a response is requested. The placement parent's attorney files a Motion for Contempt and a Motion to Modify Child Support.
The ex-spouse concocts even more and more motions as the initial filing party and the Motion for Child Support which is truly the issue is placed on the back burner by the court. Despite the efforts of the placement parent's counsel, more and more motions are filed by the ex-spouse to further cloud the issues and take the court on so many tangents that no judge could see the forest for the trees even if he or she wants to.
Here's the clincher for the attorney representing the placement parent. How do you explain to your client after 3 years of fighting and after the ex-spouse's attorney has filed 35+ motions that there is no end in sight and the family court judge has literally refused to hear the placement parent's Motion to Modify Child Support despite countless direct requests that a hearing be held on the subject?
It is not only a child support issue but a legal frustration both for the client seeking the modification and for the lawyer representing the client. This is not simply because it makes the lawyer appear inept when he or she may have done everything within his or her power necessary to obtain a hearing, but also because the client is entitled for child support relief for the benefit of the children.
I have had the displeasure of seeing several unfortunate circumstances similar to the one described. In truth the problem is caused not only by the system but by lawyers who may be questioned as to whether they are acting within the boundaries of their ethical obligations and are abusing the system.
Unfortunately one lawyer usually has no control over another lawyer who is trying to bury a valid Motion for Child Support Modification under a mound of motions so deep that the court will never see it and never address it.
The question then becomes, does the placement parent who is moving for the modification of the child support have an entitlement or right to a hearing on the subject.
Rhode Island law regarding child support gives family court judges discretion as to whether to award the moving party child support retroactive to the date the motion was filed. Assuming for a moment that the motion is heard 3+ years later by the court, what do you think the chances are that the non-placement party will be ordered to pay 3+ years of retroactive child support?
As a Rhode Island lawyer, I can tell you quite frankly that it is slim to none that the placement parent will be given the rightful award of child support retroactive to the date of filing. This is most likely because the amount of retroactive support is likely to be seen as so large as to appear to be punitive. Since the court does not award child support as a punitive measure and judges are afforded this retroactive discretion the award of retroactive child support is unlikely at best.
As a lawyer, it is not an enjoyable task to explain to your client that a retroactive award of child support for the children is unlikely without even having had a hearing. Perhaps the more difficult part for an attorney is realizing that when a family court judge fails to hear a Motion to Modify Child Support in a timely fashion and otherwise may fail to exercise his or her discretion to grant support retroactive to the date of the Motion to Modify, that judge is more than hurting the placement parent, that judge is depriving the minor children of support that they are entitled to from the non-moving parent.
It should always be remembered, both by lawyers and by the courts that child support, and thus Motions to Modify Child Support, relate to the parent's exercise of rights on behalf of the children. Thus, if a Motion to Modify Child Support is granted, shouldn't it also be correct and proper to grant the child support retroactive to the filing date. It causes one to question why a retroactive ruling is not always the case and why the family court judiciary are afforded discretion in this regard which deprives minor children of child support to which they are entitled.
What then can a lawyer or pro se individual do when faced with a Motion to Modify Child Support that he or she seemingly can't get before the court?
Stay the course! Do not diverge from the purpose of your motion to modify. Continuously bring the court's focus back to this Motion over and over again. Make every effort not to let the court get side-tracked by opposing counsel, opposing motions and other obstacles that are not as crucial to the well-being of the minor children. Emphasize to the court that the longer the motion goes unheard the longer the children go without necessary child support in an ever worsening economy.
This is a situation where you must have laser-like focus and purpose to insure to the best of your ability that the Motion to Modify Child Support is heard. The court has often focused on the fact that one of it's foundational tenets is the best interests of the minor children. Most assuredly the financial best interests of the minor children are among the most important. Food, clothing, education, shelter and medical care are all part of the financial aspects of child support. Without increases when warranted by the court and awarded by the court, the minor children suffer.
Though there are no guarantees, this is the best avenue of focus, for your client seeking modification and for the children who NEED the modification.
Authored By:
Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893
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