Can my daughters will be taken into consideration in a child custody case? 8 Answers as of January 24, 2011

My 17 year old daughter moved in with me (father) after her mother agreed. She allowed her to un-enroll from her high school, and we enrolled her where we live. Now three months later the mother has changed her mind and is threatening kidnapping charges. No paperwork has been filed to change custody, can our 17 year old state she does not want to go back to mothers residence when and if Sheriff dept show's up at our door?

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Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
file a motion in court to obtain the proper paperwork now.
Answer Applies to: California
Replied: 1/24/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
I seriously doubt you have to worry about kidnapping charges. IN general, if you file a motion to change custody, your 17 year old daughter will be allowed to stay with you. If you are concerned about police involvement or the mother's threats, than you should file an Order to Show Cause to gain a new custody.
Answer Applies to: California
Replied: 1/24/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Your daughter's "will" might not be considered by the sheriff, but could be considered by the Family Law Court in appropriate proceedings.

If the Child Custody orders in the Judgment of Dissolution of Marriage award your daughter's physical and/or legal custody to your wife, you and your daughter may be at risk if the sheriff knocks on your door.

Under the circumstances, you should promptly retain a Family Law Attorney to file an Order to Show Cause to modify child custody in the divorce case,including a request for appointment of minor's counsel, so that your daughter's voice and wishes can be heard by the Court.
Answer Applies to: California
Replied: 1/23/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
Please relax about the kidnapping charges, but bring it up to the Court if and when you go to hearing on the custody issue. I am never amused when someone threatens this type of unethical and underhanded action and the Court should be similarly unimpressed. Your daughter could easily move for emancipation at her age, and yes, her will or preference will be considered. If fact,at the age of seventeen, it essentially controls, absent some unsuitability on your part such as history of domestic violence, drug use, etc. Absent any red flags, your daughter is old enough to choose where she wants to live. Do not wait for the Sheriff, however. You absolutely cannot trust law enforcement to know what to do, or even to necessarily follow the law. If they are armed with a trumped-up Ex Parte Order, they will enforce it. Instead, file an Ex Parte Order to Show Cause, re: Custody, in your jurisdiction. Provide the mother with proper notice.

Then, law enforcement would really be wrong to take your daughter from you when there was a Court date pending in your jurisdiction. Many officers (or their Supervisors) will get it right, but I have seen a lot of arbitrary, ego-based abuse.
Answer Applies to: California
Replied: 1/23/2011
Cutter & Lax, Attorneys at Law
Cutter & Lax, Attorneys at Law | Matthew E. Lax
Yes, your 17 year old daughter's wishes will be taken into consideration in custody proceedings. Although the court could find reasons that it is not in your daughters best interest to testify at a hearing, the court could do a number of things in order to ascertain your daughters wishes such as the appointment of a minor's counsel to represent your daughter and to inform the court of what your daughter desires.
Answer Applies to: California
Replied: 1/22/2011
    Pisarra and Grist
    Pisarra and Grist | David T. Pisarra
    Yes, your daughter tell the officers what she wants and where she wants to live. I assume you have joint legal custody. A child can be emancipated at 12, and a 17 year old is for all intents and purposes an adult. You may want to go to court and file an Order to Show Cause to change custody based on the changed circumstances and the fact that your daughter is living with you full time, frankly you should do that anyways to make sure you are not being charged with child support, even though your daughter is with you. If the mother has a child support award from the court, you will be responsible for that support, even if your daughter lives with you, until you have it changed.
    Answer Applies to: California
    Replied: 1/21/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    I would suggest immediately filing a motion to modify the custody and visitation order. Although the Sheriff's office may or may not enforce the order, you are better off modifying the order immediately to avoid any problems. I would be happy to assist you. Please contact me for a free consultation.
    Answer Applies to: California
    Replied: 1/21/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    The short answer is "yes," a 17 year old can decide to live with either parent she wants, assuming her decision is not unsound because she wants to live with a parent that, for instance, does not require her to do homework, or stay out all night, etc. Based on the facts you stated, it's not kidnapping (as mother previously agreed to the change, which the child could attest to). It is also highly unlikely a sheriff will put a 17 year old child in the back of a police car and escort them back to another parents home, which would upset her school schedule (as you've described in your question).

    If you feel it is necessary, you have the option to file a custody modification motion with the court to get orders on custody, which would protect yourself from false allegations of kidnapping. Yet, if the child will be turning 18 in the next few months, then by the time you got to a court hearing, the issue may be moot.

    If you'd like to discuss other options, feel free to contact my office.
    Answer Applies to: California
    Replied: 1/21/2011
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