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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 100047
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have joint custody and visitation of my 12 year old son.

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I have joint custody and visitation of my 12 year old son. His mother has residential and joint custody. earlier this year she moved to another county with him and lied about her residence to keep him in his old school against my wishes and advice. he school caught on to the fact that he does not reside in his town and they gave him 1 week to leave the school and enroll in his town. he does not live in a good area at all and has shown resistance to going to that new school. what are my rights as his father now? Can I make application to the court to ask for residential custody to be given to me? I live in a wonderful neighborhood with a great school system and my son has expressed a desire in wanting to live with me. do I stand a chance?
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. There may be a slight delay between your follow ups and my replies as I reply.

I am sorry for your situation.

what are my rights as his father now? Can I make application to the court to ask for residential custody to be given to me? I live in a wonderful neighborhood with a great school system and my son has expressed a desire in wanting to live with me. do I stand a chance?

Yes, but, there is no guarantee, of course.

In order to get one's petition for modification of custody approved, one needs to show two things:

CHANGE OF CIRCUMSTANCE
There has to be a change in circumstances between the original time that the order was granted, and now. Braiman v. Braiman, 44 NY 2d 584 - NY: Court of Appeals 1978. This change means something that modifies the factors that lead to her getting custody. Her relocation may qualify as this.

THAT THE REQUEST IS IN THE BEST INTEREST OF THE CHILD
The modification has to be in the best interest of the child. For a detailed list of the factors considered, see here.

Do you have a good chance? Yes. However, it is best to show that your would be a better custodian not only due to the school, but to household stability, financial ability, plans for the future etc - see the factors listed in the link. The more you can prove this, the better of a chance it is.

Best of luck.

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