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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 88672
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My 13 year old son whom she dropped off at her parents house

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My 13 year old son whom she dropped off at her parents house 3-4 weeks ago doesn't want to go back with her. When she dropped him off she stated she was done with him and he was going to stay with them until the father (non-custodial) was able to return to Illinois. It was verbally expressed to her mother and texted to the father. She has said she is picking him up tonight and staying at a friends house. Both his family Dr. and counselor have commented on how well he looks and is behaving (the Dr. said it was the best she has ever seen him) He has an order of protection against her husband and DCFS is investigating them both. Does he have to go and what could be done to prevent this? This case is in Illinois
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your family's situation. Can you please clarify:

1) Are you the father?
2) Are there formal custody orders in place? If so, who is the managing custodian with whom the child lives the majority of the time?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Hello Ely, yes I am the father. I am the non-custodial parent she is the custodial per a court order in Illinois. He has lived with his mother at her mothers house for the past 3 years. She got mad and moved to a friends house. Within 3 days she dropped him off at her mothers and said (verbally to her mother, and texted to me) he would remain with his grandmother until I was back. This was almost 4 weeks ago he was dropped off.

Expert:  Ely replied 1 year ago.
Rob,

Thank you. Last question - am I correct in understanding that you wish to seek managing custody here? Is this the underlining question? Or, do you simply wish to know if he has to go with her or can stay with the grandparents, but you yourself do not want custody?
Customer: replied 1 year ago.

I will be seeking to be the custodial parent. However I am 30 days out from traveling ( due to neck surgery). I didn't know if he could stay with the grandparents legally or if he had to go. Also is managing custody an order that is granted or is it signed over?

Expert:  Ely replied 1 year ago.
Thank you for your clarification, Rob. Apologies in advance for the momentary wait while I type out my answer.
Customer: replied 1 year ago.

No problem Ely, Thank you for your time

Expert:  Ely replied 1 year ago.
Rob,

1) Unfortunately, a minor child cannot decide whether or not to follow custody orders. This is for the Court to do. So simply because the child does not wish to go does not mean that she cannot pick him up, if it is her custody time;

2) The way to stop him from going is to file in court for a modification of custody, and as part of this, to request that you retain temporary custody while the matter is being heard.

3) The child's preference will be taken as a factor in the Court's decision, although it is not controlling of the situation. The Court shall make a decision on custody based on the following factors:

(A) the wishes of the child’s parent or parents as to his custody;
(B) the wishes of the child as to his custodian;
(C) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(D) the child’s adjustment to his home, school and community;
(E) the mental and physical health of all individuals involved;
(F) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
(G) the occurrence of ongoing or repeated abuse, whether directed against the child or directed against another person; and
(H) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. (750 Illinois Compiled Statutes - Chapter 5 - Sections: 602, 603 and 610);

4) Because time is of the essence, it may be possible to get an ex parte order for custody:

a) The petition to modify custody is filed
b) with the petition, the filing party includes a motion for an ex parte (emergency) order that is heard on day of filing before other party (the mother) is even served
c) if the court finds that there is good cause (and it sounds like there may be here), it can order that emergency custody may go to the father (who can then have the grandparents hold on to the child for the time needed until he can get the child)
d) the other party is served with the petition/order and
e) the matter is reheard again once they have a chance to respond and the court may uphold, drop, or modify the ex-parte order, and then
f) final trial hearing is held down the line a few months later unless the parents come to an agreement.

5) If the father cannot make it to Court, his attorney can attempt to ask the court for him to appear via telephonic hearing via Motion for Telephonic Hearing (at the court's discretion).

May I recommend the Illinois Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Best of luck.

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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 88672
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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