Tag: choose

I have custody of my child. He’s refusing to come home. What now?

I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?

I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.

And that answer is: realistically speaking, probably nothing.

As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.

This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.

Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.

And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.

Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.

So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:

First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.

Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.

If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.

Utah Family Law, LC | | 801-466-9277

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When did you know that divorce was the option you were going to choose?

When did you know that divorce was the option you were going to choose?

First, make sure that if you reach the conclusion that you need a divorce that you really do need a divorce. Clearly, a marriage that, through no fault of your own, threatens your life, health, or safety is a marriage you don’t have wonder is worth staying in another moment. But in every other situation, divorce is not a decision to take lightly.

Some people think they need a divorce when they do not. They mistakenly believe that a divorce will be the solution to problems that the marriage is not causing or a solution to problems the marriage is causing when there are better solutions than divorce (many people have told me after their divorce that they wish they had not taken such drastic measures and had tried harder to save their marriage because they realized that 1) the marriage was worth saving and they didn’t “know what they got till It’s gone” and/or 2) divorce only made matters worse).

Even if you do not believe that individual counseling or therapy and/or marriage and family therapy will work for you and your spouse (or your whole family, if that’s a concern), you do not want to live with the regrets that come from wondering “what might have been”. Start reading the scriptures and going to church. Seek wisdom, guidance, and help beyond your own abilities (even if you think it’s a stupid idea, try it before you reject it out of hand). Before taking the drastic, painful, scarring, costly, and permanent step of divorce, try to find out whether the problem(s) in your marriage and family lie(s) with something than your spouse. Try to find out if the problem(s) can and should be solved without divorce. If, after taking these steps, you honestly conclude that your marriage cannot be salvaged, that is when you can and should file for divorce confident in your choice.

Utah Family Law, LC | | 801-466-9277

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How can I choose which of my parents gets custody of me?

How can I choose which of my parents gets custody of me?

In Utah, a child can’t choose. At least not anymore. Under current Utah law, children do not get to choose which parent will be awarded custody or what kind of custody or parent-time schedule the parents and child will follow. This is the law currently:

Utah Code §30-3-10(5):

(5)(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.


(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise.

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.


(i) If an interview with a child is conducted by the court pursuant to Subsection (5)(b), the interview shall be conducted by the judge in camera.

(ii) The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

This was not always the case, however.

Up until 1969, the law in Utah was 180 degrees different. The Utah Code formerly provided (and I’m not kidding):

‘When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.’ (Utah Code Section 40-3-5).

Utah Family Law, LC | | 801-466-9277

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Why can a child refuse to live with a parent as court ordered?

Why is it OK to allow a 14-year-old child to deny one parent access to him/her without any reason, but it is kidnapping if the child were to refuse to live with either parent and instead live with an adult that is not his/her parent?

Because your question contains a flawed premise.

It is not legal for a 14-year-old child to refuse to comply with a child custody or child visitation (also known as parent-time) order. The reason a 14-year-old child can to refuse to comply with a child custody or parent-time order and get away with it so often is because many courts don’t have the guts or a practicable way to force a child to comply.

The law does not give a minor child his/her autonomy. Minor children who are otherwise not legally emancipated are subject to the control of their parents. So if an unemancipated 14-year-old child wants to live with Person X, if a parent opposes that, and if Person X refuses either to return the child to the parent or to eject the child from Person X’s home, that constitutes kidnapping.

Utah Family Law, LC | | 801-466-9277

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Can children choose with which parent they will live?

How much input do you let your child have in deciding who they’re going to live with or which parent they’ll be spending more time with?

This is a question on which the law has gone back and forth. In my jurisdiction where I practice divorce and family law (Utah), the law in the 1960s was that a child of 10 years of age or older had, so long as he/she was of sound mind, the choice of which parent got custody of the child (back then the idea of joint custody was virtually unthinkable).

There are some people, particularly today, who believe that children should have no say in the child custody award. Some base this belief in the idea that asking children to weigh in would traumatize them, cause them to feel that they are pitting their love for one parent against the other. Some base this belief in the idea that children are not sufficiently intelligent to make the correct choice as to which parent should have custody of them.

Giving 10-year-old children the absolute right to choose which parent would have custody is probably giving a child more power than the child is prepared to wield or should wield, and puts the child in a needlessly agonizing “Sophie’s Choice” position.

But concluding that children should have no voice in the child custody award is as silly and irresponsible as it is cruel. Just because a child may not be old enough to be entrusted with an absolute choice of the custody award does not mean that the child cannot provide its parents and the court with uniquely crucial observations, experiences, opinions, insights, and preferences that can guide the parents and the court in formulating the most fitting and appropriate custody award. Depending upon how honest the child is with the parents and the court, and how mature the child’s reasoning is will depend upon how much weight the parents in court give the child’s desires. Regardless of how much weight the child’s desires are given, the child still gets to be a part of the process. The child knows that his/her voice is heard and considered. That alone has value for the child.

It’s not a question of whether the child gets to choose which parent has custody, it’s a question of whether we seek the child’s input in addressing and resolving the issue (and it would be malfeasance not to involve the child at that level).

Utah Family Law, LC | | 801-466-9277

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At what age can children decide which parent they want to live with?

It’s largely a matter of age and size/strength or resourcefulness.

Technically a child never legally has the power to choose with which parent he/she will live (the only person with that power is the judge). But as a matter of life in the real world, when a child knows he/she take Mom or Dad in a fight and/or knows how to sneak off to the other parent’s house, that’s usually when the child has the de facto power to “decide” where he/she is going to live, regardless of what the court orders.

Indeed, courts are reluctant to try to force kids to obey court orders of custody and visitation when they know the kids are big and smart enough to defy the court. Besides, although courts don’t like being disobeyed, they’d prefer kids living with the parent they choose rather than having the kids run away because they are so miserable living with the parent the court ordered them to live with.

Utah Family Law, LC | | 801-466-9277

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The court gave Mom full custody of me; can I live with Dad instead?

QUESTION: The court gave my mom full custody of me, can I live with my father without her doing anything about it?

ANSWER: First, we start with the obligatory “don’t break the law” disclaimer. I am not, in answering your question, telling you that you can or should break the law.

Now let’s be very frank here.

In answering your question I make a few presumptions.

I presume that your mother is not physically abusing you or physically neglecting you. If your mother is physically abusing you or physically neglecting you, you are not required to suffer that. Tell your school counselor or nurse that you’re being physically abused. Call the police. Call child protective services. Tell your father. These people can bring your physical abuse to the attention of a court to help you get immediate emergency protection and eventually permanent protection from an abusive parent.

I presume that your mother is not brutally abusing your verbally, meaning that while there may be a lot of tension between you and Mom she is not calling you an f—-ing this or that, a worthless piece of sh—-, telling you you’re less than dirt, won’t amount to anything, possessed by Satan, that kind of thing. If your mother is verbally abusing you , you are not required to suffer that either. Again, tell your school counselor or nurse that you’re being so horribly mistreated. Tell your father. If you have the ability to record your mother when she engages in the verbal abuse (and if it’s legal to record in your jurisdiction), do so—you’ll need evidence to prove your claims because most people won’t believe you without proof. A school nurse or counselor and your other parent can bring the verbal abuse to the attention of a court to help you get immediate emergency protection and eventually permanent protection from your abusive parent.

OK, so if you aren’t being physically or verbally abused, the question remains: can you live with your dad when the court ordered that your mom has custody of you?

ANSWER: Technically: no. Practically: yes (at least in Utah, where I practice).

If you are too young to take your mom in a fight, that’s usually the “power” that determines where you (or any other minor child) resides.

A court can exercise its power of compulsion and direct law enforcement officers to force a child to reside with the parent to whom the court awarded physical custody, but I’ve never seen that happen, and I doubt I ever will because if a child is so truly unhappy with the custodial parent (as opposed to being manipulated by the noncustodial parent) that the child will refuse to live with the custodial parent, run away from home, refuse to leave the noncustodial parent’s house, etc. the court usually concludes (and usually such a conclusion is wise) that if a custody award does a child and parent more harm than good, perhaps that child ought to be left alone.

Right or wrong, children who are 1) not criminals; 2) old enough to take their custodial parents in a fight (if it came to that); and 3) shown to do better (in school, at home, at work, in public etc.) residing with the noncustodial parent than with the court-ordered custodial parent are effectively de facto ungovernable and have the power to vote with their feet. There is a certain kind of equity and justice in this.

Utah Family Law, LC | | 801-466-9277

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