Is it worth going to court?

[hopeful_25]

Hi Socrateaser--I am not sure where to begin in order to give you the full scoop.  My 12yo ss is crying out for help and my DH and I don't know what to do.  We are in IN.

We have joint legal custody with BM having physical custody.  SS wants to go to school in our town this year.  BM seemed open to the idea until last weekend.  She will not even discuss the possibility.  Hangs up when it comes up.  Decree states that both parties shall agree.

SS is refusing to go back to her house when our time is up.  He even wrote a message on our shower wall last night that was quite disturbing.  Fear he may run away from her house.

The history---ss watched former stepdad die.  Mom promised him she would never remarry.  Now she is getting ready to marry another man with some kind of cancer.  He moved into her house in May along with his 2 kids and dog.  ss now sleeps on couch due to new kids getting his room.  An aunt is living with them as well who does not have custody of her children.  Total of 8 people in 4 bedroom house.  Choas.

BM is constantly calling and telling us how out of control ss is but refuses to let him come to school here.  She has tried having him diagnosed with ADHD and medicating--didn't work.  He is only having problems at her house.  The counselor even noticed that.

Questions:
1.)  She is absolutely unwilling to work/talk this out.  Is it contempt?
2.)  Is there enough to even go to court when the child is begging to stay here for this school year?
3.)  Isn't the age 14 to voice opinion of choice to judge?  Will they listen to a 12yo?

Thank you so much for listening.

[socrateaser]

>Questions:
>1.)  She is absolutely unwilling to work/talk this out.  Is it
>contempt?

No. If you don't agree, then your recourse is to ask the court to decide for you. That's not the same as violating a court order.

>2.)  Is there enough to even go to court when the child is
>begging to stay here for this school year?

Yes, if you can prove that the child sleeps on the sofa, and is in serious mental distress over staying in the house with the new stepparent, then I'd say you have a substantial change in circumstances.

>3.)  Isn't the age 14 to voice opinion of choice to judge?
>Will they listen to a 12yo?

There is no age barrier. The child's ability to reason and voice his wishes in an informed and intelligent manner is all that is required. Either he's got it or he ain't. If he doesn, then the court will listen. If not, then the court will appoint an evaluator to try to figure out what's up.

If you can record your child on video, discussing this with you, then you could present that to the court. Better would be to go to a psychologist and have him discuss the issue with the child and then testify to it in court.

But, if you go in with just your word against the other parent, you'll be rejected.

I suggest you retain an attorney, but if you want to try it on your own, it's certainly within your rights to do so.

[hopeful_25]

SS12 is sleeping on the couch and is about to have new stepdad.  Visibly upset by circumstances at Mom's.

Question:
1.)  When video taping child discussing this, do you do it without child knowing he is being video taped or more like an interview?
2.)  ss yesterday said to make him an appointment with the judge because he wants to tell the judge what is going on.  How do you go about it?  We have a lawyer--does he file something?
3.)How do you protect the child after this plays out?  He is somewhat fearful of consequences and action of mom.
4.) School starts in 4wks.  Do we need to get an emergency hearing?  



Thank you in advance.  You are a great help!!

[socrateaser]

>Question:
>1.)  When video taping child discussing this, do you do it
>without child knowing he is being video taped or more like an
>interview?

In a perfect world, I would have the child videoed while being interviewed by a child psychologist, and without the child's knowledge. Unfortunately, the psychologist would probably refuse to participate in the exercise.

It's really your choice. It may be difficult to get the child to be "real" for you, once he knows he's on video, because he will be more interested in the camera than in his problems.

>2.)  ss yesterday said to make him an appointment with the
>judge because he wants to tell the judge what is going on.
>How do you go about it?  We have a lawyer--does he file
>something?

You have the right to subpoena witnesses, and the child is a witness. The problem is that usually, the court views a parent who offers a child's testimony as acting against the child's interests by drawing him/her into the eye of the hurricane, if you follow my metaphor. There is also the secondary problem of children being highly unreliable witnesses, i.e., you can't really count on what they will say when they actually get to the courtroom -- and you could end up with egg on your face, and a sanction from the court.

But, if the child wants to testify, and the child has the maturity to testify in an informed and reasonable manner, then there's no reason not to ask the judge to hear the testimony.

My preference would be to have a psychologist interview the child, and then testify as to his/her expert opinion about the child's mental state and desire to relocate. That way, you have an independent professional giving the judge something to chew on, and then the judge may want to speak with the child, or appoint a Guardian ad Litem or evaluator.

This is expensive, but as insurance policies go, it's a pretty good investment.

>3.)How do you protect the child after this plays out?  He is
>somewhat fearful of consequences and action of mom.

If you are suggesting that the after effects will be worse than the current circumstances, then maybe you shouldn't be doing this.

>4.) School starts in 4wks.  Do we need to get an emergency
>hearing?  

Maybe. An emergency order requires a showing of irreparable harm to the child or a party to the case. I don't think that you can meet that burden without an expert's testimony. But, your attorney will have greater knowledge of the local practices of judges, and how easily they grant emergency custody orders in cases like this.