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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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My son is 13. I currently have primary custody in the state

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My son is 13. I currently have primary custody in the state of New Mexico. 2 years ago my son chose to live with his dad. I live in Denver, and he is here on Christmas break. He wants to stay but I know his father will object. What are the legal risks if I were to let him stay and not take him back to to his dad?
Dear JACUSTOMER - If the custody was never changed by the court and you are still listed as the custodial parent then your son can stay with you and there is nothing the father can do except file a motion for a change of custody. Whenever a child change where he lives the parents should have the court order changed but I am assuming that did not happen and there fore you still have legal custody.
Do you have any further questions?
Customer: replied 4 years ago.
Do you think a judge would be irritated with him switching schools mid-year? I wonder if we should wait until summer, although my son truly doesn't want to go back. Also, just want to be sure his father couldn't file kidnapping charges.
If you have legal custody then there can't be a "kidnapping". I seriously doubt that the judge would care which school he was going to since all the court cares about is who has legal custody and if the child is with that person. Private agreements are not recognized by the court.
Customer: replied 4 years ago.
Just to clarify, the current orders are joint custody, with me being primary. I had the school year and his father had summers. We did not change anything when we switched 2 years ago. Does the joint make any difference? Last question, I promise! Thank you!
The joint doesn't matter so long as you have the primary and your child is supposed to be with your during the school year according to the custody agreement. The fact that you switched and didn't modify the court order means that the court would still believe that you were operating under the original order so if the father tries to file something the court would simply say that the court order is being followed as written and there would be no case.
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