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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 17887
Experience:  B.A.; M.B.A.; J.D.
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My son is 9yrs old and has continually stated through tears

Customer Question

My son is 9yrs old and has continually stated through tears that he no longer wants to go to his father's. He feels as though his father doesn't love him due to things his dad says to him such as,"the second son is the best on" referring to his little brother from a different mother and "what are you stupid or something?" He has also shared recently about his father's fights with a new girlfriend in front of the children (once involving him grabbing her hair and leading her into the house by it) and alcohol use in his presence which is actually against the current court order (I have no way to enforce...if I do, how?).
This breaks my heart to no end and I continue to encourage my son that his father loves him and wants to spend time with him although I am concerned a bit about his father's recently choices since the split from his brother's mother back in early 2016. He has had three different women living there over the past 6-7 month and leaves my child with each of these women just after meeting them for days at a time while he is working without me ever consenting.
Things have been much better over the past few years regarding co-parenting and flexibility of our schedule. However, I am becoming more and more concerned and not sure what to do as we do not have a great communicating relationship and my son is encouraged to lie or not tell me what is happening over there. I am afraid if I try to speech with the father, he will come down harder on my son who already feels he is not loved.
1) At what age do the courts listen to a child? I have read the Code 3042 but are there any cases to reference wherein a nine year old's views are considered?
2) Would the lifestyle (drinking and fighting with girlfriends) be enough to decrease visitation or would they simply say it's his right to parent his way since we have joint custody?
3) Is there a clause I could add to a future modification order to say something about first right of refusal and who is acceptable as custodians during his time there (i.e. family members)?
Please advise! Thank you so graciously.
PK - California
Submitted: 3 months ago.
Category: Family Law
Customer: replied 3 months ago.
Note: I really hate the idea of returning to the court room. We had a grueling first five years... Are there out of court alternatives?
Customer: replied 3 months ago.
Pardon my typos... speak not speech of course
Expert:  Phillips Esq. replied 3 months ago.

Hello: This isCustomer Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 3 months ago.

I am sorry to read about your difficulties.

Unfortunately, you must go to Court to resolve this issue. There are no out-of-court alternatives for your situation. You must apply to the Court to get the custody and visitation Order modified and either ask for supervised visitation or not give the father visitation at all until the father has straightened out his acts.

Your specific questions:

1) At what age do the courts listen to a child? I have read the Code 3042 but are there any cases to reference wherein a nine year old's views are considered?

Response 1: Generally age seven. However, based on the circumstances, the Court can listen to a child younger than seven. The Court can also appoint a representative for the child, a Guardian ad litem to advocate for the child's interest. I do not have specific cases to site within the confines of this forum because it costs hundreds of dollars to access the premium databases.

2) Would the lifestyle (drinking and fighting with girlfriends) be enough to decrease visitation or would they simply say it's his right to parent his way since we have joint custody?

Response 2: The first. Lifestyle makes a difference in custody and visitation cases. If he is drinking and bringing different women to "look after" the children, that is not a safe environment for the children to be in. The Court is not going to look very kindly on him for putting the children at risk.

3) Is there a clause I could add to a future modification order to say something about first right of refusal and who is acceptable as custodians during his time there (i.e. family members)?

Response 3: You can tell the Court about your issues and ask the Court for the things that you need done to prevent future disputes.

Customer: replied 3 months ago.
Are there certain terms I would use in the modification order request? I was hoping you would share more legal terminology that I might could use in the paperwork. I will be representing myself if we go back to court. I have had two attorneys and represented myself. I did much better on my own.
Expert:  Phillips Esq. replied 3 months ago.

I am sorry, but I cannot comply with your request because that amounts to giving you legal advice, which I am prohibited from doing by the terms of service. However, I will opt out in the hopes that another Attorney may have additional suggestions for you.

Best wishes,

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