16 yr old wants to stay with father 1/2 time. Mother has custody. Does he have to file for change or father?
4 attorney answers
There is a very, very EASY answer for this post which an out-of-state lawyer would not know about: at the age of sixteen (16), a child can choose which parent he/she wants to live with WITHOUT the permission of the Court. There is ample case law to support what I have said.
This is why the Courts in New York, based on a 'normal fact pattern,' most likely will not conduct a trial based on an application to change sole residential custody. The Court will appoint an Attorney for the Child (AFC) to ask the child which parent he/she wants to live with. That is the route that you should take.
1. An appeal from 2008 cannot still be active; if it was abandoned, it has been dismissed; if it was perfected but unsuccessful, it is long since concluded.
2. Father can petition for a change of custody, but if he has failed to comply with court directives, the chances of success are slim.
3. A 16-year-old boy's preference will be taken into account by the court, following a so-called Lincoln hearing, wherein the judge will talk privately with the boy and his attorney, without the parties or their attorneys. The transcript remains under seal, available only to the courts and the attorney for the child.
I am not your attorney and any posts/messages or responses to posts/messages can not and do not establish an attorney-client relationship. You should not rely upon free legal advice, and I disclaim any liability for the outcome if you do. Any opinions offered on matters outside New York State are for general informational purposes only.
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A 16-year old has no standing in this case; it is between the parents. If the father failed to comply w/the orders of the court, there is little basis for him seeking custody now.
The foregoing is for general information purposes and does not establish an attorney-client relationship. Those seeking such a relationship are directed to the contact form on my website.
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