Can the child choose to stay with the father if there are no child custody court papers? 29 Answers as of October 28, 2011

A mother and a father have equal rights until a court says otherwise. Since you have no court papers, you still have equal rights.

Even the Courts don't give children the power to choose where they live. If the Court determines that a child is of sufficient age and maturity, the Court can consider the child's wishes and reasons, but it is up to the Court to make the custody decision. If you don't return the child to the mother, she will probably file a custody case (divorce or paternity), and the Court could consider the father's refusal to return the child to the mother as inappropriate behavior. You would best file a custody case without delay, and allow the Court to make the decision, instead of letting the child make the decision. I can't surmise whether your keeping the child would be considered kidnapping by the court, but you would better allow the Court to make the decision in a custody case.

The child is not yet 18 years old. Therefore, he or she has pretty much no right to decide where to live. If the parents cannot agree on where the child will live, then, you are going to have to go to court to get a parenting plan.

It is best to have a court ordered custody agreement such as a parenting plan.

The father should file for custody and obtain court orders

If the couple was never married, then the father needs to file a paternity petition to establish his parental rights first. If he's not the legal father he would be kidnapping the child under the law.

If a man is not married to a child's mother when the child is born, he can become the "legal" father through the"Recognition of Parentage" (ROP) process or by Court Order. To get a Court Order establishing paternity, the dad files papers to start a paternity case in the local District Court where the child or the "defendant" lives. A court may decide what custody and parenting time rights apply based on what it believes to be in the child's best interests. Until that occurs, the mother remains the presumed custodial parent.

You would not be charged with kidnapping, but you will alienate mom and be dinged by the courts if Mom files for a custody plan. Your best bet is to work this issue out with Mom. If you two do not want to involve the court system, then set up a meeting with a mental health professional who specializes in "co-parent counseling". A 12 year-old is too young to be making adult decisions, but too old to be unheard. Perhaps you and Mom could create a plan wherein time with you is increased -or- create a plan where the child lives primarily with you. The best thing for your child is to work with Mom and come to a mutual decision (if you can).

If there are no custody order, it gives the impression that the father never legitimated the child. If this is correct, then the father has no legal custody of the child, and is not entitled to keep the child with him unless the mother agrees to it. If the mother agrees, the child can stay & the father can request termination of the child support order (due to having physical custody). If the mother does object, the father will need to file an action to legitimate the child, may request primary physical custody as an outcome of the legitimation action, and may state the child's preference as a basis for an award of primary custody.

The courts usually take the child's preference into account in deciding, but they are not bound by that. The best way to do this is to go to court and file papers for custody and get a determionation of what is in the best interests of the child. The court would look at the whole picture - e.g, would this involve a change of schools, is child care available if the father works (same for mother), living conditions of each parent, etc. If it was in the best interests of the child to be with the father, the court would so order, with appropriate visitation for the mother. But I do not recommend just keeping the child, file the court papers first and then ask the court for temporary custody while the action is pending.