Can my son decide to live with me if his father has child custody? 31 Answers as of August 29, 2011

My son has decided he would like to stay with me. His father has custody of him and his brother. I would like to know what rights does my 15 year old have? Whats the normal process for this?

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Neville J. Bedford Attorney at Law
Neville J. Bedford Attorney at Law | Neville J. Bedford
Once a motion is filed here in Rhode Island, the court may consider the child's desires when they are of such an age, along with the other factors that are deemed to be in their "best interest".
Answer Applies to: Rhode Island
Replied: 8/29/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
You would need to file an agreement signed by his father, or you can file a motion to have the court order it. Your son is not able to declare this, however, a guardian ad litem may need to get involved and he can certainly tell that person his wishes, and why.
Answer Applies to: Wisconsin
Replied: 8/20/2011
Law Offices of Gregory L. Laurance
Law Offices of Gregory L. Laurance | Anastasia Ganatsios
If you can obtain the father's consent to change custody, you can hire an attorney to prepare and file a stipulation (an agreement you file with the court which becomes a court order) setting forth the new custody/visitation arrangement. Absent such an agreement, you need to make a formal request with the court by filing and serving what's called an Order to Show Cause for Modification of Custody/Visitation. This will cause the court to set a hearing on the matter and compel you and the father to attend a mediation session wherein you will be called upon to try and settle the matter out of court. Though you may try this on your own, it would be best for you to seek the advice and assistance of counsel to make sure all the paperwork is completed properly and with required attachments/declarations. An experienced attorney will help you tailor the facts of your case to make sure you meet the requisite legal standards for modification of custody orders as well as present evidence at your court hearing in an organized, coherent, and persuasive manner. Since your son is 15 years old, he will be afforded the opportunity to present his wishes to the court pursuant to: California Family Code Section 3042 which reads in pertinent part: (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation. (b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child. (c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interests. In that case, the court shall state its reasons for that finding on the record. Call your local bar association referral service for the name of an attorney that will offer you a free one-half hour consultation. Make sure to give the attorney all the relevant details in your case and he/she will be able to better evaluate your chances of success. Good luck to you and your family.
Answer Applies to: California
Replied: 8/20/2011
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
I need more information to answer this question. What is Dad's position on allowing you more time with your son? The best option is for you and Dad to be able to talk openly and freely about your son's wishes, come to an agreement, and then tell your son what you have decided together. If Dad agrees, or could agree to more time as a temporary measure, then you and Dad can work out an agreement and write it up. If you and Dad are not in agreement regarding a custody change, then you would need to file a petition to modify custody to change your current orders. At 15, the court could requst your son be interviewed through Family Court Services or a separate therapist. With new legislation in California, your son could even testify (but I would advise you to avoid involving him as much as possible). I would discuss the details of your case with an attorney. In California, courthouses have a free attorney available for advice (called the family law facilitator). Check your local court's website for the facilitator's hours.
Answer Applies to: California
Replied: 8/20/2011
The Law Offices of Robert W. Bellamy
The Law Offices of Robert W. Bellamy | Robert W. Bellamy
Get your lawyer to file a rule nisi to modify the divorce agreement. Son will be old enough for judge to listen to.
Answer Applies to: Alabama
Replied: 8/19/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    You will need to file a petition to modify the parenting plan. Ask for a GAL so your son's preference can be heard.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    A petition for modification of custody would have to be filed requesting a change of custody.
    Answer Applies to: Alabama
    Replied: 8/19/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend you retain a family law attorney ASAP and discuss a child custody modification action, along with a parent selection statement. Good luck!
    Answer Applies to: Georgia
    Replied: 8/19/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Just because your son wants to live with you is not sufficient to change custody, unless Dad agrees. In order to change custody, you must show that there exists either a substantial change of circumstances since the entry of the last custody order or good cause, other than your child's preference, based on the 12 or 13 factors the court is required to look at according to State Statute.
    Answer Applies to: Michigan
    Replied: 8/19/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    To have it done legally, you would need to file a motion to modify the current plan. A GAL or attorney might be appointed for your child and depending on the results of any investigation they perform, they may recommend that your son move in with you. Ultimately, it needs to be by agreement or by court order.
    Answer Applies to: Connecticut
    Replied: 8/19/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    I have witnessed many child interviews while working downtown Los Angeles. Some children have asked the judge to live with one parent. Some children were prompted by the non-custodial parent to request such a change. Typically when this is the motive, it backfires because 1) the child is performing horribly under the non-custodial parents time or 2) the child ends up giving away the non-custodial parent as being the one who made the request.
    Answer Applies to: California
    Replied: 8/19/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Of the father will not agree to let him stay with you, you need to file an OSC requesting a change in custody. Usually a 15 year old can decide where he wants to live and you should have a very good chance of success.
    Answer Applies to: California
    Replied: 8/19/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    There is a common misconception about children deciding where they want to live. Depending on who you talk to, people will tell you that the child can decide at age 12. Some will say 13. Some will say 16. All of these are wrong. The child does not have control over where he or she lives until he or she is an adult at age 18. To child where someone under age 18 lives, you must accomplish one of two things. Either you most get the other parent to agree to the change or you must get the court to modify the parenting plan through the parenting plan modification process. This can be very difficult to do.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    The 15 year old has NO rights. You have the right to seek a change in custody. In that case the child's opinion will generally but not always affect the outcome. But it takes you to file a case.
    Answer Applies to: Georgia
    Replied: 8/19/2011
    The English Law Firm
    The English Law Firm | Robert English
    You can file an Order to Show Cause for change of custody. A 15 year old will likely be able to indicate a preference, which will be a factor in the court's decision. The standard that the court will apply is "best interest of the minor child."
    Answer Applies to: California
    Replied: 8/18/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    In Texas, the Court must take into consideration the desires of a child over the age of 12. Note, take into consideration does not mean the child picks. I describe it this way, if a child tells the judge I want to live with Mom or I want to live with Dad, that parent is half way to the finish line before the race begins. Note, the interview is done in a face to face interview, not in writing and the parents are not present - just the child and the judge.
    Answer Applies to: Texas
    Replied: 8/18/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In Washingtion, a 15 year old doesn't have rights in regards to custody.His opinion might be considered, but it will never control where he lives.Petition to modify the parenting plan iif you want him to live with you.
    Answer Applies to: Washington
    Replied: 8/18/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    you would have to move to modify the custody
    Answer Applies to: Connecticut
    Replied: 8/18/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    Courts will generally allow the testimony and consider the reasonable preference of a 15 year old. But the preference of the child is only one consideration as the court will ultimately have to determine what is in the best interest of the child, not what the child wants. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
    Answer Applies to: Florida
    Replied: 8/18/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    The normal process is to file a motion to change the custody arrangement.
    Answer Applies to: New Jersey
    Replied: 8/18/2011
    Bagwell Holt Smith Jones & Crowson, P.A.
    Bagwell Holt Smith Jones & Crowson, P.A. | John G. Miskey IV
    The analysis will depend on whether you have an agreement, a Court Order or no formal arrangements at all. However, in any circumstance, you can attempt to change custody and, very likely, the minor child's opinion will be relied on by a Judge.
    Answer Applies to: North Carolina
    Replied: 8/18/2011
    Law Office of Kathryn L. Hudson
    Law Office of Kathryn L. Hudson | Kathryn L. Hudson
    To modify and existing child custody order you must show there has been a material change in circumstances, in your case that would be that your son has expressed his desire to live with you. At his age the court would consider his reason for wanting to live with you and generally the court will allow and order the change unless it is clearly not in the child's best interest, such as your living situation was not stable or suitable.
    Answer Applies to: Arkansas
    Replied: 8/18/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    The question to be answered, either by mutual agreement between you and the father or by a judge, is what is in the child's best interest. A 15 year old child has no "rights" in the decision of what is best for him, but his wishes are one of the relevant factors a judge will consider. Nothing will change simply because the child wants a change. If the father does not agree that it is a good idea for the child to live with you and won't agree to a modification of the parenting plan, you will need to file a motion to modify the current parenting plan arrangements and convince a judge why the change is appropriate. You need to consult an attorney to obtain an opinion about how successful you might be so that you have an option based on a careful review of all relevant information.
    Answer Applies to: Colorado
    Replied: 8/18/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    The court can consider a minor's decision. In a case where the child is 15 years old, the court can listen to child and take into consideration where the child wants to live. However, the court is not bound to follow the minors opinion.
    Answer Applies to: California
    Replied: 8/18/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Once a child reaches the age of 14, under Georgia law they do have the right to decide which parent they want to live with, and the judge will respect that decision as long as it is not detrimental to the child. You need to retain a lawyer to file a custody modification action.
    Answer Applies to: Georgia
    Replied: 8/18/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    No. Any change of custody would require a showing of endangerment as a threshold before the desires of the child are ever considered.
    Answer Applies to: Minnesota
    Replied: 8/18/2011
    Lewis, Pfanstiel & Williams, PCLO
    Lewis, Pfanstiel & Williams, PCLO | Ryan J. Lewis
    You would need to file an Application to Modify. The judge would take into consideration your sons wishes.
    Answer Applies to: Nebraska
    Replied: 8/18/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You have to go to Court to get custody, but the Judge will listen to what a 15 year old wants a lot more than listening to what a 4 year old wants. I can help you with this. And I will tell you up front what it will cost to do this for you. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 8/18/2011
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