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RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 11994
Experience:  Experienced in multiple areas of the law.
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I have joint custody with my ex husband. He was the primary

Customer Question

I have joint custody with my ex husband. He was the primary residential parent when we were divorced (I understand FL laws are now equal 50/50, but this was back in 2007-08). My son was visiting with me for the summer (Philadelphia), and we are supposed to drive down to Florida to return him over the weekend. I will be continuing on to Phoenix, relocating to live with my mom and sister. My son is now refusing to return to his father, has told me that he is 16 and can decide where he wants to live and tell the court and his dad that. He is adamant. His older brother, 20 (US soldier), agrees with him that he would better with me.
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Case is out of Florida
JA: Have you talked to a lawyer yet?
Customer: not yet. he has just told me tonight that he won't go back
JA: Anything else you think the lawyer should know?
Customer: I was laid off in May (had worked the past year in Florida), returned to Philadelphia where I had a place to live and was trying to clear things up here, look for work, etc. My family situation in Phoenix is stable, and I will be going to start a substitute teaching role at the high school in my family's area. So, I will have a safe, stable housing situation for my son and myself, and employment. My goal was to have a chance to start over, re-establish my teaching credentials there (would have done so in Florida, but no family or a place to get on my feet there).
Submitted: 3 months ago.
Category: Family Law
Expert:  RobertJDFL replied 3 months ago.

Thank you for using Just Answer. My name is ***** ***** I am a licensed attorney. I look forward to helping you.

I've reviewed the facts you've provided. Can you tell me what your legal question is this evening? Are you asking if you can keep your son?

Customer: replied 3 months ago.
He is refusing to go back, I do not want him to run--either from me, or if I forcibly take him back to then run from his dad. His father had previously threated to kick him out, due to attitude and told me to "take him." (Note, when I said, "yes" my ex suddenly changed his mind.)I cannot simply abandon my son. I am trying to convice my son to change his mind, or if not, to discuss the matter with his dad to repair the situation. As I am going to relocate to Phoenix, within mere days, I am very worried. If I drive from Philadelphia, bring my son back to Florida, leave and drive to Phoenix--only to have my son disappear, I couldn't forgive myself. I know that he would try to make his way across the country alone, but no child should do that. He has told me of his intention to do this. He has said that if he ran to Phoenix on his "own," that then "no one" could stop him, and he would be waiting for me there when I arrive. He has said that if he goes back, he would just "leave," and no one could stop him.It is easy for someone to say that I have to "make him" go back, but the consequence of my doing so is him running (or something potentially more tragic). As an aside, the volatility of the situation is made worse in that my ex has over 30 guns (including at least one AR-15) at the home. There is only one gun safe, so only a percentage of the guns are secure. My ex lives at his parents home, with his brother, and my 13 and 16 year old sons. I am frightened that someone (any of the adults, or either of my boys) might get too emotional and angry during the resulting confrontations. Accidents happen. :(Question part a) So, the question is both "can I keep him," and "how can I not keep him knowing the consequences to my son (at the least, the promise of running - at the worst, violence)?" If he won't let me take him back, what on earth can I do?? He's 16, and bigger than I am (being realistic), with a very singular and focused refusal to return. I am NOT travelling to Phoenix to "kidnap" him from his dad, but this move to my family is my only hope of basically having a stable roof overhead and a confirmed job, with a support structure for myself.Question part b) I understand that a modification of custody (and support) would need to be filed to officially keep the 16 year old. Since I am leaving Philadelphia so soon, I don't think that filing it in a state I will only be in for a few days is the right thing to do, but I don't know! Being unemployed, and trying to move across the country I do not have the funds (candidly) to retain an attorney. I would have to contact a legal aid agency, which will not be quick. Do I go to Phoenix and try to get legal aid there to file a modification, do I try to file something in Philadelphia on Friday (7/29) myself?(I am still hoping for the best case scenario, where he agrees to go back and everybody gets along...but that seems unlikely.)
Customer: replied 3 months ago.
My son has told me that in Florida, at 16, no judge can "force" him. That the state of Florida basically allows a 16 year old to live where they want (he cites a friend of his who changed his mind and lived with the other parent or something, also a divorce situation with a residential custody agreement).Question part c) IF my ex agrees to let him come with me, what next? (pretty unlikely, but possible)Please understand, that the decision to go to Phoenix has only *just* happened, it was not in the cards when I brought my son up for the summer. But, my living situation in Philadelphia has suddenly changed, and I've not been able to find full time employment that would allow me to stay here (meaning enough for rent, etc.).
Customer: replied 3 months ago.
What steps can I take/should I take? What's the likely things that will happen? What's the worst that could happen?
Expert:  RobertJDFL replied 3 months ago.

My apologies for the tardy reply -I lost internet connection last night after replying to you and was unable to reply to you.

Under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) jurisdiction to hear the case would actually be in Florida, because your son has lived there for the last 6 months and also because the other parent still lives there.

Your son is incorrect that he gets to decide with what parent he wishes to live with. He's legally still a minor, and the court still gets to decide what it is in his best interest. Knowing a friend who had success is not indicative of every case. While it is true that at*****can, and likely would, give great weight to his wishes, that is not the deciding factor. In the absence of agreement between parents, that is left to the judge.

I'm going to assume that the father is not willing to consider stipulating to a modification of the custody/visitation order. So that essentially leaves you with two options. One, you and dad present a united front and explain to your son that he's a minor and not responsible enough to make his own choices about whom he gets to live with and that he must return home, or two, you don't return him home.

I would agree that at 16 he's much too big to simply put on a car or a plane, I get that. He should realize however that violating a court order for custody could result in the other parent filing a contempt motion against you which can result in sanctions from the court, up to an including you being put in jail. Highly unlikely for a first time violation, but within the realm of judicial discretion. That's really the worst that can happen. What is more likely is that if a court were to impose sanctions, they would be along the lines of additional time to the father or you being ordered to pay his attorney fees for him having to filing the contempt motion.

If your son absolutely refuses to return, as it sounds like he is, keep the father fully informed about what is going on, to avoid any appearance that you are trying to alienate the child, etc. I understand that isn't your intention at all. Then, you really need to speak with a Florida attorney about filing a motion to modify the custody/visitation order. Ideally, you and ther other parent can work together to stipulate to a new agreement -at 16 years old, we're talking about just another couple of years before your son can make that decision on his own, and very likely a situation where the court will give great weight to his wishes now. It's hardly worth protracted litigation on both parts at this point, but that's my opinion as someone who does family law. I'm sure you can each find a lawyer to charge you $300+ an hour who would be happy to take this on and run up a bill.

The easiest way to find a lawyer in Florida is to contact the Florida Bar lawyer referral service at 1***-***-****. They'll charge $25 for a 30 minute consultation (which can be done over the phone) with a qualified and licensed family law attorney, and of course there's no obligation.

If you need clarification or additional information, please REPLY and I'll be happy to assist.Otherwise, kindly remember to leave me a positive rating by clicking on the stars, so that I am credited for my time and information today. Thank you!

Expert:  RobertJDFL replied 2 months ago.

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