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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 19636
Experience:  Attorney with experience in family law.
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HOW OLD DOES CHILD NEED TO BE TO DETERMINE IF HE/SHE DOES/DOESNT

Resolved Question:

HOW OLD DOES CHILD NEED TO BE TO DETERMINE IF HE/SHE DOES/DOESN'T WANT TO SPEND TIME WITH A NON-CUSTODIAL PARENT? AND WHAT IS THE lAW CODE THAT STATES THAT.? wHERE CAN i REFERENCE IT.
Submitted: 2 years ago.
Category: Family Law
Expert:  Lucy, Esq. replied 2 years ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

There isn't a specific statute that deals with this issue. If there is a court order in place, the child has no ability whatsoever to choose not to comply with it until the child becomes an adult. This is because the court order is directed at the custodial parent, not the child. If the custodial parent doesn't turn the child over to the non-custodial parent - whether the child wants to go or not - the parent is in violation of the court's order and could be fined and/or jailed. See Cal. Code Civ. P., Section 1209. The parent is expected to be able to ensure compliance with the court's order until the child turns 18 and is legally an adult.

If the child does not want to spend time with the non-custodial parent, it is up to the custodial parent to request a Modification of the Custody Order. The modification must be based on a material change in circumstances. The judge will determine whether modification is in the child's best interests. What the statute says is "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." Cal. Fam. Code, Section 3042. So, there isn't a specific age in the law. If the child is a teenager, the judge will grant more weight than if the child is a three year-old. What the judge will do is determine whether the child is old enough to understand the difference between the truth and a lie, ask which parent the child wants to live with, and attempt to determine why (if it's because one parent lets the child eat only candy, for example, that's relevant). Here is more information on requesting a modification, with forms:
http://www.courts.ca.gov/1187.htm

Good luck.
Customer: replied 2 years ago.

My step daughter does not want to spend time with her father all the time, she is 15 and it is because he is not so nice to her all the time, he is demeaning and condescending and mentally abusive to her. He has been warned many times by there mom to stop how he treats the girls. they know there father is an ass sometimes. But they also know that he want to see them only when he wants to, and when it fits into there lives. Is there a presetent on this subject like case study or many cases that way in the childes wants and wishes?

 

Expert:  Lucy, Esq. replied 2 years ago.
I can certainly understand, under the circumstances, why she doesn't want to spend time with him. However, the answer is in the very first statute I posted - the mother cannot refuse to hand the child over to the father, for any reason, because she will be found to be in willful disobedience of the court's order. She has no ability to determine on her own whether to follow the custody order - she has to do it, or suffer the consequences.

What she can do is seek to modify the court's order, using those links above, and based on Family Code Section 3042. If the child is 15, the judge will listen to what she has to say. He'll listen to why she doesn't want to spend time with her father, and he likely will modify the order.
Customer: replied 2 years ago.

The mo is not refusing to klet her see her father, the 15 year old is just not wanting to go and spend time with him. She refuses to get into the car when he comes to pick her up. How is that her ooms fault?

Expert:  Lucy, Esq. replied 2 years ago.
A parent is expected to be able to exercise control over her minor child. I realize that it can be difficult to control a teenager. She will be held responsible if she doesn't make the daughter go, as unfair as that sounds. Maybe it would help to explain that to the child? It would also probably help if she told her that she was trying to get the order changed. But the father can take her to court if she doesn't do whatever she can to try to get the girl to get into the car (short of physically forcing her into the vehicle).
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 19636
Experience: Attorney with experience in family law.
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