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Question: My sons father and I (never married) have a private, written agreement that our son could live with him full time. This was over a year ago and now my son is suicidal and wants to come back and live with me. He is 12. His father says I will be arrested for kidnapping if I have him come with me. We live in two towns about an hour apart. How can I get my son home without getting in trouble?
Response: You can have your son come and live with you with no legal repercussions. The custody agreement you signed is NOT APPROVED by the Court. So, you would not be breaking any law by having your son come and live with you. You would not be arrested because of deviation from a private agreement that you signed with the father. The Police would decline to get involved in the case and would tell the father to take the issue to the Court because it is a civil matter and not a criminal one. In the meantime, you need to file Complaint for Sole Physical Custody with the Court and give your reason for doing so. In addition, because of the age of your son, the Court would most likely want to speak with him as to his preference. However, since he is still a minor, his preference would be taken into account by the Court but not would be determinative.
In a custody case, the Court would make a decision based on what is in the best interests of the child by looking at the living arrangement of the parties to the custody dispute, their lifestyles, associations, parenting skills, etc. If the Court finds after reviewing these factors that the child would be better off living with you, the Court would rule in your favor and award you sole physical custody of your son. Otherwise, the Court may award custody to the father. So, it is very important that you tell the Court any and all reasons why the father should not have custody of the child; any witnesses should be brought to the Court to testify, you may also get affidavit from the school. Remember that the Court can only make decision based on the evidence presented to the Court.
The Complaint for Custody should be filed at your local Courthouse (Circuit Court). The forms for filing the Complaint are available at the Courthouse in the Clerk’s Office. You can use the following link to find your Courthouse:
I hope that your son gets better.
Best wishes to both of you,