Need Advice...

[Sherry1]

OSS is 17 1/2 years old, turns 18 in December.  He will be starting high school as a Senior.  Court order is in Arizona.  Mom and dad have physical legal and joint custody, mom is residential parent.

OSS has been here in an adjoining state since May 26.  He has a job and has been working since then.  He does not want to return to his mother's after the summer.  He wants to stay here and begin and graduate from his school.  Mom remarried about 18 months ago and things have not been good between all 3 kids and mom.  OSS is the only child still residing in the house, he isn't happy and just doesn't want to live there anymore.  OSS lived with us during 7th and 8th grades so he knows we have rules and he has to follow them.  This isn't merely him looking at the grass is greener on the other side.

Mom will not be happy with this and will fight it tooth and nail.  But legally, does she have a leg to stand on?  Can she really file for contempt on DH and attempt to win?  Or, based upon the age of the child would it be null anyway?

Do we have to bother filing for custody?  No CS is currently exchanging hands because YSS has been living with us for a year.  

[mistoffolees]

I can only speculate and this is not legal advice - so see an attorney.

As I understand it, he is scheduled to go back to Mom in August or September, but turns 18 in December. You already have one younger son with you and have joint legal and joint physical.

Let's say he doesn't go back. Mom files in court for contempt of court. First, it probably won't even get in front of a judge until December - at best (you can always delay a bit if necessary). At that time, judge says 'it's moot, anyway since the kid is 18'. Even if the judge wants to hear it, all the other kids have already left mom's house and OSS will tell the judge he couldn't stand it there any more.

However, if the CO says that she's the residential parent and you're supposed to send OSS back to her before school starts, then you would TECHNICALLY be in contempt - which could (in theory) be punished by fines and/or jail time. I guess it's possible that you'd get a screwball judge who would want to make an example of you.

My gut tells me that her chances of getting anywhere with the case are slim to none.  Seems to me that the only way you could get burned is if mom files for contempt and OSS changes his mind - and refuses to testify. So I guess you could get him to sign something (perhaps witnessed by a minister or someone) saying that it's his idea and you didn't force him.

As I said, that's not legal advice, just a gut feel. I would ask an attorney (you could cover it in a brief 1/2 hour consultation) to be sure.

[Sherry1]

There is no spelled out visitation in the court order, it just says mom gets 30 days with the son that lives with us and DH gets 30 days with the son that lives with her.  It is going to be 60+ days before mom is going to be looking to have him back, so the court order has already been "compromised" if you will.  It is a real small town that the court order is in and she could probably get a hearing within 3 weeks, however, I do like your idea of possibly getting it extended.  We already have an attorney that we used last year for YSS coming to us.  DH will probably just call him, but I would like to not have to spend money on him filing for custody if we can get away with it.