Intersection of Family Law, Divorce & Criminal Law in Rhode Island

Criminal charges and criminal prosecutions in Rhode Island are often inextricably intertwined with child custody, paternity, visitation, property rights, restraining orders, divorce and family law issues, either directly or indirectly. There could be multiple proceedings pending in Rhode Island Courts, simultaneously. For example, there could be the following cases pending at the same time:

• criminal prosecution involving a no contact order,
• Providence Family Court complaint protection from abuse 
• A child custody battle or a divorce in RI
• Paternity case
• Child support
• Dcyf case
• Juvenile proceedings

Many proceedings at the same time

If the parties are not married, in addition to the criminal proceedings, there could be a miscellaneous petition for custody and visitation. There also may be a DCYF (abuse, neglect or dependency) proceeding pending.  There also could be a RI child support case, paternity proceeding or even a RI Family Court juvenile proceeding. If you were arrested and charged with a criminal charge in RI then you should contact a Rhode Island criminal defense lawyer.  If you need legal help with a divorce in RI, then contact Rhode Island divorce lawyer, David Slepkow.

How a no contact order affects the family?

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. This removal 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. 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 his or her 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.

What is a “domestic” criminal offense in Rhode Island?

This article applies to misdemeanor criminal charges in Rhode Island and Providence Plantations. A misdemeanor in RI is a “domestic” offense if it involves designated family members, a spouse, girlfriend or boyfriend. The following offenses can be considered domestic offenses under the laws of the Ocean State:

• assault
• failure to relinquish telephone
• harassing phone calls
• disorderly conduct
• larceny
• other criminal charges

An assault, disorderly conduct, larceny and other criminal charges can all be charged as domestic offenses. If the police assert that there is domestic angle to an assault, the prosecution will be for a “domestic assault” rather than just an “assault.” If an accused is arrested and charged with a domestic offense, a no contact order will issue in favor of the alleged victim or victims. If there is a no Contact order, it  will be a crime for the criminal accused to have any contact with the alleged victim. The issuance of no contact order may wreak havoc upon the family, especially when the alleged accused and the victim are married or have a child together. If the victim and the criminal defendant are residing together then the local police may throw the accused out of his or her residence / home. This quasi eviction creates an entirely new set of challenges for the affected family unit. In some instances, the accused perpetrator is the sole provider of support for the family and the children.

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 charge charged as a non-domestic offense. Under Rhode Island (RI) 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 batterers intervention classes. 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 the no contact order. A second conviction for a domestic offense in Rhode Island may lead to a minimum ten days at the aci! 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 RI 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 in Rhode Island!

Domestic conviction will look worse than a non-domestic conviction

A domestic conviction will look worse than a non-domestic conviction on the accused’s record when seeking employment opportunities. Also, sentencing is more harsh for domestic cases then a non-domestic offense. Furthermore, in domestic cases a one-year filing cannot be expunged at the end of the year. There is an additional two year waiting period for a total of three to expunge a domestic filing. Please see my other article concerning Rhode Island misdemeanors for a comprehensive explanation of a one-year filing in Rhode Island.

Batterer’s intervention program

Upon entering a plea or being found guilty of a crime with domestic implications then the defendant will be ordered to complete a batterer’s intervention program which involves attending classes.  This specifically includes sentences of probation, suspended sentence, one year filings and suspended sentences. Refusal to go to batterers classes as ordered or failure to pay Court ordered restitution could be considered a violation of probation, or a  a violation of the terms of a one year filing. The defendant can also be ordered to pay restitution to the victim if applicable and obtain substance abuse or mental health counseling. Failure to attend the Batterers classes, failure to pay restitution or failure to attend counseling could be considered a violation of probation, suspended sentence or a filing.

Restitution

In some cases, when there are quantifiable damages to the victim, such as damaged or destroyed property then the defendant may be ordered to compensate the victim by paying restitution. If a defendant is arrested,  then a no contact order will enter unless the  purported victim drops the nco. Unless the matter is dismissed, the victim drops the nco or the accused is found not guilty after a judge or jury trial, the no contact order will continue until the probation or suspended sentence terminates.

Visitation and custodial issues with a no contact order

If there are minor children involved then visitation and custodial issues may arise, immediately. The father or mother who was accused of  a criminal offense may desire visitation and parenting time with his or her child. The alleged victim may or may not want the alleged criminal to visit with the children. The defendant may need his personal belongings such as clothes, jacket, personal papers, bills, toiletries, tools, computer, work clothes etc. In some cases the victim obtains a restraining order from the Providence Family Court or the 6th Division District Court. The victim may also demand child support. Often the criminal defendant has difficulty affording child support after retaining a Rhode Island criminal lawyer.

Should I get a top Rhode Island Criminal defense lawyer or Divorce lawyer to represent me in a criminal law or divorce case?

A Rhode Island attorney is definitely needed for serious matters such as divorce, child custody and criminal causes of actions. The old adage that is often bandied around is that a person who is their own lawyer has a fool for a client. Rhode Island divorce attorneys and RI criminal defense lawyers are intimately familiar with the court process, RI laws, the judges and magistrates. Lawyers are familiar with the inner workings of our system of justice. If you are facing criminal charges in Rhode Island and Providence plantations, you may have a right to a free RI criminal defense attorney from the Public Defender’s office, if you meet income and eligibility guidelines.

Violation of bail or 2nd domestic conviction

A bail violation could mean 10 -13 days at the ACI. A 2nd conviction for a domestic criminal offense in RI could result in a minimum of ten days at the adult correctional institution! A 3rd criminal arrest in Rhode Island for a domestic criminal offense, may be charged as a felony in Providence Superior Court. NOT all plea agreements constitute a criminal conviction. In Rhode Island and Providence Plantation, any sentence with a suspended sentence, guilty finding, plea of guilty, fine or period of incarceration constitutes a criminal conviction. A nolo-contendere plea bargain sentence with a period of  probation or  a one year filing with court costs does not constitute a conviction in RI!

A criminal conviction characterized as a domestic offense will look more menacing then a non-domestic on the accused’s criminal record when seeking employment opportunities. A Justice of the 6th Division District Court will usually be harsher than sentences for non-domestic offense. Furthermore, a one year filing in the Ocean State which is a domestic offense is not eligible to be expunged at the end of the year filing. There is an additional 2 year waiting period to expunge a domestic filing in RI.

RI criminal lawyer

If an accused defendant in Rhode Island is under a no contact order and inadvertently is in the presence of the victim in public place, he or she must get out of that place as soon as possible and not acknowledge the victim’s presence. The defendant may not even say “hi” or exchange any sort of pleasantries if they saunter by the purported victim by happenstance on the road, at the mall or anywhere.

A criminal defendant could be pinched under RI criminal law for violating an NCO when the alleged victim initiates the communication and texts, Facebook chats or calls the defendant on his cell phone. A defendant in a criminal cause of action could be arrested and criminally charged with violating an NCO even if invited by his wife to live in the home with the kids.

Dismissing the no contact order

Once the no contact order is issued, the local police department cannot drop a no contact order. Only a judge can drop a no contact order.  The judge may dismiss the no contact order at the arraignment. The purported victim may try to dismiss the no contact order at the criminal arraignment at Providence 6th Division District Court.  Prior to approaching the judge at the arraignment, the victim must speak with the domestic violence counselor at Court.  It is nearly impossible for a victim to drop a NCO at an arraignment. Before addressing the Providence District Court judge or magistrate at the arraignment hearing, the alleged crime victim must converse with the domestic violence (DV) counselor at Courthouse. Sadly, this is normally a perfunctory conversation because the judge, not the advocate, decides whether to quash the NCO.

Can a no contact order be dropped at an arraignment in Rhode Island?

The Justice of the Court could dismiss the NCO during the arraignment hearing.  Most judges refuse to do so at the arraignment, but it could happen. If the allegation of domestic abuse is severe or there is an established history of domestic violence, then the justice may reject the victim’s pleas to vacate the NCO. The restraining order will not be dropped by the RI judge if the victim declares that she is afraid of the allege perpetrator. It is sometimes easier to get the nco dismissed at the “pretrial. ”  The Justice of the Court will usually seek to ascertain whether the police department, the prosecutor or the city solicitor have any objections to the no contact order being terminated. Some judges in Rhode Island refuse to drop no contact orders under nearly any circumstances. The modern trend is judges making it very difficult for the victim to drop a  no contact order. If the case is dismissed or the accused is found not guilty the NCO is terminated.

Documented history of abuse

However, in the event that the alleged abuse is severe or there is a documented history of abuse then the judge may refuse to drop the no contact order. The no contact 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 who are present at the arraignment whether they have any objections to the no contact order being dropped

Can the victim of an alleged crime dismiss the nco after the arraignment hearing but the pretrial?

In the event that the victim wants to drop the no contact order after the arraignment but before the pretrial 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 the no contact order be dropped at the pretrial conference?

The person being protected by the no contact order will have another chance to quash the NCO at the criminal pretrial conference hearing. The pretrial conference in Rhode Island is typically scheduled a couple of weeks after the arraignment. At the pretrial conference, the victim can approach the judge and again to have the no contact order dropped. The judge will look at the same factor  to determine whether to drop the NCO. The modern trend is for judge to refuse to drop no contact orders. Some judges will look at whether the accused has taken batterers intervention classes.

Will the judge in the Sixth Division District Court determine visitation, child support, paternity or custodial issues?

No. The  District Court will not get immersed or involved in any family, divorce or custodial related issues such child support in RI, spousal support, paternity, relocation, equitable division of marital property, visitation and marital expenses. The District Court Judge in the criminal case will not determine who is responsible for payment of  the mortgage, taxes, insurance and credit cards. Those family law issues are the sole province of the Rhode Island Family Court, not the District court!

Obtaining personal property, clothes and belongings when there is an NCO

There are numerous appropriate and legal manners for a criminal accused to obtain his personal belongings when there is an NCO. Personal belongings usually consist of personal property such as clothes, work related equipment, tools, personal papers, sneakers, uniforms and personal property. The criminal accused can notify the local police department and seek appropriate assistance.  The local police officer or patrolman may escort the defendant to the home. Often the police will rush the person and only allow them to recapture limited property. In some cases the officer cops a serious negative attitude and enforces a very draconian time limit.

If the accused has a private  RI criminal defense attorney or a RI divorce lawyer, he can contact the victims attorney who 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. The accused must be careful not to violate the no contact order.

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 no contact 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 they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance 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 by his wife to come back to the marital home.

In RI, A “no contact order” is often termed an “NCO” and means that the person accused of a criminal charge may not have contact and / or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, Facebook posts, instant messages, tweets, emails, text messages or messages delivered through a 3rd party.

When does a no contact order in Rhode Island (RI) expire?

A no contact order (NCO) in Rhode Island and Providence Plantations expires when a sentence of filing, probation, deferred or suspended has ended on its own terms. An NCO also ends if the criminal case is dismissed by the prosecution or the judge. The NCO also terminates if he criminal accused is found not guilty by a judge after a trial on the merits. The no contact order expires if the judge terminates the no contact order at the request of the victim. Be extremely careful, there could be another different abuse Restraining order from the Providence Family Court or a 6th Division District Court abuse civil restraining order!

What are the implication if a criminal defendant on probation, bail, filing or a suspended sentence violates an NCO or restraining Order?

A defendant  subjected to bail or probationary period needs be extremely cautious not to violate the NCO. A NCO violation is a separate crime. It also constitutes, if it can be proven, a violation of probation, 1 year filing or a bail violation.

A person who violates their probation, bail or one year filing  may be held at the ACI  if he or she is arrested  for violating a no-contact order, District Court abuse restraining order or RI family court abuse restraining order. For example, if a person is on probation or bail, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI. A probationary period or filing period is a time of tremendous risk for a defendant. The Defendant must be careful to stay out of trouble!

Accused must be vigilant

A criminal accused subject to a nco or an Family Court abuse restraining order must be careful. A violation of a NCO or a Family Court abuse restraining order is a violation of probation! It is also a violation of bail. 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 defendant with a stayed, suspended, or deferred sentence has the most exposure because that person is on probation. concerning violation of the terms and conditions of probation. If a criminal defendant violates his probation as a result of violating a no contact order or abuse restraining order, a person with a suspended sentence could be ordered to serve the remainder of the suspended sentence at the adult correctional institution (ACI) A person who is on probation, bail or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order.

The victim who has a no contact order as a result of the criminal charges may also file a complaint protection from abuse in RI Family Court. The  Providence Family Court’ jurisdiction includes issuing a protection from abuse RO for three  years.(one year if there is a restraining order on behalf of a child, also) The Kent County, Washington County, Newport County and Providence Family Court may issue restraining orders for litigants who are married, divorced, certain family members or people who have children in common as well as other jurisdiction set forth in the statute. If the parties do not have a child and have been in a dating relationship then the jurisdiction for the RO is at the  RI District Court.

What happens if a person on bail, probation, filing or suspended sentence violates a no contact order?

A person on probation or bail can be held at the ACI if they are accused of violating a no-contact order. For example, if a person is on probation or bail, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI. A probationary period or filing period is a time of tremendous 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 from The Rhode Island Family Court 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 in RI. As a result of a probation violation of violating a no contact order, a person with a suspended sentence could be ordered to serve the remainder of the suspended sentence at the adult correctional institution (ACI)

For Example, a person with probation may get themselves deeper into trouble when they resume communications or contact with their 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/her at the aci as a probation violator as well as new charges for domestic assault and violation of a no contact order or restraining order.

Violation of Family Court Complaint protection from Abuse restraining order is a crime in itself

Violation of an abuse complaint in Providence Family court or a District Court abuse RO may be a violation of probation,  conditions of bail or conditions of a one year filing. There are two types of  Rhode Island Family Court Restraining orders, (1) “Complaint Protection from Abuse” and  (2) a civil restraining order.

Is Violating a Family Court civil restraining order, which is not an order protection from abuse, a crime?

No. A violation of a Newport, Washington, Kent or Providence County civil, domestic Family Court restraining order that is NOT a Complaint Protection from Abuse RO is not a crime.  The police will not make an arrest if someone violates one of these RO unless the actions and conduct of such violation is a crime in itself. If a husband, wife or other domestic litigant violates this kind of RO, it may be is punishable by a contempt finding and contempt penalty. Civil  domestic Restraining orders are not as powerful nor effective as Complaint protection from abuse restraining orders. Civil  domestics restraining orders are usually an order in a  RI divorce, post divorce or miscellaneous custody or visitation cause of action.

In a complaint protection from abuse may the justice issue orders concerning visitation, child custody and child support

Yes. In a Complaint Protection from Abuse case, the  RI Family Court can award temporary child support, visitation, and temporary custody of the children. The Court can also award visitation and in some instances may order supervised visitation. The Court can order that the Defendant vacate forthwith and remain out of the household. The Court can also order that a person take batterers classes or drug and alcohol counseling. The Court can order drug and alcohol testing. The Court can also order the Defendant to surrender possession of all firearms / guns to the Police department.

Is a violation of a Rhode Island District Court Restraining order a crime?

Yes. These types of cases are not criminal cases yet a violation of this RO is a crime in itself.

What is the RI District Court jurisdiction for Restraining orders?

If the RO in Rhode Island and Providence Plantations is sought against a current boyfriend or  current gf or an ex-bf or ex-girlfriend who you had a substantive dating relationship within the prior year but you have no child or children with, then  the RI District Court is the correct court for litigating the restraining order. If a litigant has child with a current or ex-boyfriend/ ex-girlfriend then the RO needs to be pursued in the RI Family Court system of justice. AN RO against a roommate that you currently reside with is a District Court matter.

The RO: Intersection of Criminal Law & Family Law

Will the criminal judge in District Court resolve visitation or custody issues?

No. The criminal Court will not get involved in any 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 District Court is where criminal misdemeanor cases are heard. The Court has the power to order restitution to the victim for any actual damages suffered by the victim as a result of the crime such as destruction of property, medical bills, stolen funds etc. The District Court in a criminal case cannot be involved in setting visitation or dealing with issues concerning divorce or custody of the minor children. The Rhode Island Family Court is the proper Forum for dealing with issues related to divorce and child custody such as: child support, visitation, financial restraining orders and issues concerning marital property, marital real estate and debt.

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 Family Court. The Family Court can set visitation and child support as part of a Complaint protection from abuse restraining order. In some instances when domestic violence is alleged or there are issues concerning alcohol, drug abuse or mental health then the Family Court may order supervised visitations. These Supervised visitations may occur at the Providence Family Court or may be supervised by a third party.

Rhode Island Family Court restraining orders: (1) Complaints Protection from Abuse and (2) ‘Civil restraining orders’ and how they relate to criminal law

A defendant must be careful! There may be a separate order protection from abuse restraining order that issued from Rhode Island Family Court as a result of a complaint protection from abuse. The Family Court has jurisdiction to issue an order protection from abuse restraining orders for up to three (3) years. The Family Court can issue restraining orders for persons who are married, are divorced, are family members or who have children in common as well as other jurisdiction 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.

Violation of Family Court Complaint protection from Abuse restraining order is a crime in itself and also may constitute a violation of probation, bail and violation of conditions of a filing. There are two different types of Family Court restraining orders, “Complaint Protection from Abuse” and a civil restraining order. Both of these restraining orders can be in addition to divorce proceedings.

Is Violating a Family Court restraining order which is not an order protection from abuse a crime?

No. A violation of a Family Court restraining order which is not a Complaint Protection from Abuse is not a crime. Violation of this type of order is punishable by contempt. If a person is found in willful contempt, they could be held at the aci to compel compliance with an order. However, If the restraining order contains language that violation of the order is a crime then 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. If someone is in need of a restraining order in Providence then he or she should contact a Rhode Island restraining order lawyer

In a complaint protection from abuse case in Rhode Island 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 also award visitation and in some instances may order supervised visitation. The Court can order that the Defendant vacate forthwith and remain out of the household. The Court can also order that a person take batterers classes or drug and alcohol counseling. The Court can order drug and alcohol testing. The Court can also order the Defendant to surrender possession of all firearms / guns to the Police department.

Is a violation of a Rhode Island District Court Restraining order a crime?

Yes.

When should a Restraining order be filed in District Court?

If the restraining order is against a current boyfriend or girlfriend or an ex-boyfriend or girlfriend who you had a substantive dating relationship within the prior year, but you have no child with, 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.

RI Superior Court Restraining orders:

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. Violation of a Superior Court Restraining Order 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 issued as a result of a criminal charge. A no Contact order 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; a person is found not guilty or after any sentence expires. The no contact order will expire 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 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 a no contact order!

Can the defendant testify in The 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 / her attorney and weigh the pros and cons of testifying in the hearing. A defendant in a criminal case has the right to take the Fifth Amendment and not testify in the case. 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.

What County in the Rhode Island Court system will criminal law and divorce cases be heard?

All the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures. Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol, North Smithfield, Woonsocket and other towns and cities. Kent County includes Warwick & North Kingston, East Greenwich as well as other towns. Newport County includes Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield etc.

David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, criminal law, restraining orders, child support, hair relaxer lawsuit, custody and visitation. David has been practicing for over 25 years and is licensed in Rhode Island, Massachusetts and the United States Supreme Court. Free initial consultations. Credit Cards Accepted.

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