Custodial Parent Wants Minor Child to Live With Older Brother - Can NCP Get Custody

[KonaKula29er]

My question involves a child custody case from the State of: Utah

Thank you in advance to any and all those who read my post, evaluate the circumstances and offer advice. I will do my best to provide a summary of information that will give the most accurate picture possible.

My wife’s 14 year old son has been living with his father out of state since 2003. They currently reside in Virginia. We are located in Utah. In January of this year, we received a call from dad indicating the son had not been attending school for several months. In fact, he had missed the majority of the fall semester for his 8th grade year and the first month of the second semester as well. Dad was calling because the school district’s truancy office was on the verge of filing charges against him for the son’s truancy. Dad was looking for a way to avoid the charges and asked if we would fly the son out to Utah and enroll him in school. He would live with us until the semester was complete.

Understand too that the son has had a history of truancy throughout his entire school career. He has been absent as many as 44 days in one semester, excessive tardiness 30+ times in one semester (not just a few minutes tardy, but hours late), poor grades, terrible behavioral problems at school that have led to disciplinary action (documented reports, detentions, in-school suspensions, possible police involvement), and at least three episodes where the son stopped attending school altogether for months on end with dad's support. During these occasions, dad and son would take long trips to Florida or the Smokey Mountains.

Once the semester was complete, the son did not return to Virginia and continues to live in our home at this time. Since living with us, the son completed the semester of school with a 3.82 GPA, did not have one absence and the handful of tardies he did have were for being late to class by a few minutes. Throughout the summer, the son has been involved in our church, scouting and workouts with the local high school football team. He has thrived in our home and progresses more and more each day.

His dad recently contacted us and said he was coming to Utah for a visit. He indicated once he arrived, he would be moving the son out of our home and into an apartment that the son would share with an older brother. The older brother lives here and is attending a graduate program at the local university. Dad states he will move both boys into an apartment and will fly from Virginia to Utah from time to time to visit with them and make sure they are doing well.

My wife has joint custody of the son, but not primary custody. Dad is the custodial parent. Again, dad does not live here in Utah; he is not a resident and is not planning to move here permanently. Dad will be taking some courses at the local university as part of a distance learning program, but will continue to live in Virginia. His visits to Utah will be for the courses and to visit his sons.

Of course we believe the son's would be better off remaining in our home.

So here are my questions.

Would my wife’s joint custody of the son supersede dad’s intention of moving the son into an apartment with the older brother? The way I see it, the older brother has no parental rights/authority at all. Just because dad wants to move the younger son in with the older brother doesn’t automatically give the older brother those rights.

Since dad is a permanent resident of Virginia, isn’t his visit here to Utah exactly that, a visit? Wouldn’t my wife be considered the custodial parent as long as the son lives in Utah and the dad lives in Virginia?

Lastly, if dad shows up at our door and insists the son leave with him so they can move him into this apartment, do we have to relinquish the son to his care or can we refuse and have the law (police) on our side?

Again, thank you for taking the time to consider my situation.

[aardvarc]

Mom needs to get into court and petition for a change in primary custody.

Would my wife’s joint custody of the son supersede dad’s intention of moving the son into an apartment with the older brother? The way I see it, the older brother has no parental rights/authority at all. Just because dad wants to move the younger son in with the older brother doesn’t automatically give the older brother those rights.

Moving in with a sibling, or anyone else for that matter, doesn't change anything from a legal perspective. Mom and dad would retain the same exact legal rights regarding the child. The only thing that would be different would be the physical location where the child was living. Just as when parents allow a minor to go live with "friends"...the parents retain all parental rights, and can choose to exercise them at any time and have the child return home (or go elsewhere).

Since dad is a permanent resident of Virginia, isn’t his visit here to Utah exactly that, a visit? Wouldn’t my wife be considered the custodial parent as long as the son lives in Utah and the dad lives in Virginia?

Parents aren't "considered" anything - they need to be NAMED, in a court order. If the order says "joint" currently, then it's "joint", and stays "joint" until the order is amended - thus the reason mom needs to get back into court to get an order issued that reflects the current state of affairs. Since the child has already BEEN living with mom, and especially in light of the issues that occurred when living with dad, it shouldn't be overly problematic to get the wording (and thus mom's rights and ability to exercise them) altered - BUT, without doing so, there's really nothing to stop dad from continuing to operate as usual, up to and including moving the child back to VA with him.

Lastly, if dad shows up at our door and insists the son leave with him so they can move him into this apartment, do we have to relinquish the son to his care or can we refuse and have the law (police) on our side?

Custody orders are civil. Police aren't going to get involved unless there's a disturbance or a crime. If dad shows up, he can demand whatever he wants, but if mom's got joint custody, police SHOULD tell him that it's a civil matter and he needs to address it in family court. Note that what SHOULD happen isn't always what DOES happen - thus, it's REALLY in mom's best interest, in light of the extreme changes in the child's circumstances since the court last looked at the case, to get NEW orders drawn up based on CURRENT circumstances.

[KonaKula29er]

Ms. NeSmith,

Thank you for your response and the information you provided. I certainly agree with everything you said. Believe me, if I had the finances right now to hire an attorney, it would have been done yesterday. That was one other aspect of our situation I did not mention. When my step-son came to us last January, my employer was implementing FTE reductions company wide. My department got hit hard and, unfortunately, I suddenly found myself without a job. I have not found full time employment since then, but am working part time and continue to look for a position. With the situation as it is, we would be hard-pressed to come up with enough money to retain an attorney at this time.
At this point, if dad shows up at our door and demands to remove my step-son, I will call the police and hopefully they will require dad to pursue his intentions through court. If for some reason they require us to allow the boy to leave with his dad, we are thinking that after dad can move him into an apartment with the older brother, but once dad leaves the state, we would then go to the apartment and bring him home again.
If you have any further thoughts or suggestions, please feel free to let me know.

[aardvarc]

if dad shows up at our door and demands to remove my step-son, I will call the police and hopefully they will require dad to pursue his intentions through court.

Absolutely. I would simply, politely, tell dad THOUGH the door, to wait a moment while you summon police. Have a copy of the court order that indicates JOINT custody handy (keep a copy or copies handy, it's not unheard of for parents to try to nab kids while walking around with the other parent at the grocery store, etc. and if a confrontation happens, you want to be able to whip out a court's order indicating the joint nature of the custody order). If your state issues ID cards to minors, get the child one ASAP, with the address where he's been living. The more things you can do in order to document that the child is and has been living with YOU, the better case you'll have.

And, although attorneys can be expensive, you have a lot of challenges here and really DO need legal guidance from a licensed professional in your state. Most legal aid societies these days are swamped, under-staffed, and woefully under-funded, so the vast majority will only handle custody issues that relate to domestic violence cases...but you absolutely should TRY - contact your local domestic violence program for a referral - they are likely to know where in your community low cost aid can be obtained for family law matters. Also, if you happen to have a law school in your community, give them a call and ask if they have a legal aid clinic. Many schools make law students available, working under licensed attorneys, to help in situations like this.

[PQN]

Try calling the law schools in your area. Many have free or lowcost clinics that offer services for the unemployed.

[KonaKula29er]

Absolutely. I would simply, politely, tell dad THOUGH the door, to wait a moment while you summon police. Have a copy of the court order that indicates JOINT custody handy (keep a copy or copies handy...

One last question. We have a copy of the court order in hand that shows both parents having joint custody, but the document also indicates dad is the custodial parent. I am concerned about the "custodial parent" part. If the police see that, will they require us to release the boy to his dad?

[aardvarc]

Only the individual police officer standing at your door at the time can answer that. Because it's a CIVIL matter, police SHOULD, because the child is already in your care (being inside your home) tell dad that he needs to leave and pursue the matter in the family courts. However, stranger things have happened, and police are trained in CRIMINAL law, not FAMILY law - so their response to such things can be a little shakier. There's also the issue that dad could theoretically try to take custody at some place OTHER than your home, and then the same problem would arise - in that when there is joint custody, possession is 9/10th of the law - whomever the minor is with at the time is going to be seen as the one "in custody" and the other side gets told to take it back to the court. The only way the child won't be at risk of being snatched up by dad every time he walks out the door is if you get back before the court and get that order amended to make you the custodial parent (or sole physical custody).