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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 18396
Experience:  B.A.; M.B.A.; J.D.
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My 16 year old step son resides with his mother in Colorado.

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My 16 year old step son resides with his mother in Colorado. My husband and his ex-wife have joint custody and joint decision making regarding the child. He has come to North Dakota to visit his father (my husband), me and his brother for the summer. He has decided that he wants to live with his father now and informed his mother of his intentions of "staying in North Dakota with Dad, Barb and Tomie." When he spoke to his mother (over speaker phone, with myself and my husband present) she said "Ok, when are you coming to get your stuff?" He told her it would be toward the end of summer. She again said "Ok." She even posted on my step sons facebook page that he needed to "change his profile since he no longer lives in Colorado and no longer goes to Windsor High School." She is now threatening my husband saying if my step son is not in Colorado by Monday that she will be pressing charges (what charges could be pressed??) My step son DOES NOT want to go home. He texted his mother today to make sure everything would be ok with him staying. She now denies ever saying he could stay, although she has sent an e-mail stating that "if he comes home and my husband goes through the proper channels through the court that if he wants to live with his father then that would be ok." He continues to say that he wants to stay with us here in North Dakota and does not want to go back to his mothers house. (I believe there may be some dischord in his mothers home in Colorado. There was an investigation done regarding domestic violence within the last 1-1 1/2 years.) My step son is fearful of his mother and does not wish to return home. Are we breaking the law by allowing him to stay with us here in North Dakota while we petition the court for change of residence? Also, since he is a very mature 16 year old, does the court take into consideration what his wishes are?
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Does your step-son still have the posting on Facebook by his mother regarding changing his profile?
Customer: replied 4 years ago.

Yes, my step son does still have the posting she had put on facebook and I also took a "screen shot" photo of her posting. My step son had commented back to her "so that means I can stay here with no problems?" and she commented back on her posting saying "No. I never said that! You MUST come back and your dad MUST go thru the proper channels before you can move up there or he will have to face charges. But if he does things proper you can go back up there if that is what you really want."


 


What sort of charges would she be able to press against my husband if they have joint custody and joint decision making?

Thank you for the information:


Yes, my step son does still have the posting she had put on facebook and I also took a "screen shot" photo of her posting. My step son had commented back to her "so that means I can stay here with no problems?" and she commented back on her posting saying "No. I never said that! You MUST come back and your dad MUST go thru the proper channels before you can move up there or he will have to face charges. But if he does things proper you can go back up there if that is what you really want."

What sort of charges would she be able to press against my husband if they have joint custody and joint decision making?


Response: None. There would be not charges. Police would more than likely not get involved because this is a civil matter especially when both parties have joint custody and when a 16-year old who can speak for himself is involved. The father would not be charged with anything. However, if the 16-year old does not return as the mother demanded, the mother may file Contempt Action against the father and the father would be ordered to show cause why he should not be held in Contempt of Court and sanctioned. Where there is evidence that the 16-year asked and received the mother's permission to stay and later the mother tries to deny it, the Court would not hold the father in Contempt. The mother is being very disingenuous here for inexplicable reasons.

If the 16-year wants to stay and the mother is/was in agreement, the father does not have to go to Court first in order for the son to be living with the father. The son can stay with the father and the father with the cooperation of the mother can then file joint petition for modification of custody and ask the Court to make the father the primary custodial parent. If the mother does not want to go along, then the father must file complaint/motion for modification of custody and ask the Court to give him physical custody of the son. Because of his age, the son would have the opportunity to tell the Court why he wants to live with his father instead of his mother. The Court would take his preference into consideration, but his preference would not be determinative. He is still a minor and subject to undue influence by both parents.

The modification of custody must be filed in Colorado where the son resided with the mother and where the mother still resides. Click on the link below for Court forms. Scroll down to “Modify Existing Order” for proper forms:


http://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Domestic


http://www.courts.state.co.us/Forms/renderForm.cfm?Form=770


http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=72

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