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Can a non-custodial parent change custody of a child without the custodial parent's consent at the child's request?

Fairfield, CA |

I have sole custody of my 16yr old daughter and she has lived with me since she was 13yrs old. She is upset with me because I punished her by taking away her cell phone. She has left to go live with her mom against my wishes and has been living there for about two weeks now. At this point her mother has changed the school she was attending and I have no phone number or address to contact my daughter with the exception of her mom's email address. Her mom is now claiming to CPS that I have been emotionally abusing our daughter because our duaghter has attempted to harm herself twice in the past but had also been receiving physciatric treatment as a result. I am not sure what my next course of action should be. Possibly partition the courts for an Ex-Parte hearing to sort things out???

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Attorney answers 3


I would not skip the hiring of a family lawyer especially if CPS has been called. This is not an ex-parte action and no Judge will talk to you exparte.

Providing general answers are meant to help the poster to understand some complex legal concepts and in no way creates an attorney-client relationship.


If you have a court order signed by a judge giving you physical custody, you may call police and go to moms house, or daughter's school, and pick up your daughter. However, it sounds like you and daughter might have to patch things up. And your daughter might just leave again. If so you will need to bring a motion in family court for a mediated parenting plan. Unless your daughter is missing school then you don't have grounds for an emergency exparte so bring a normal motion. If your daughter tells the mediator that she wants to live with mom then the mediator and court will give her request lots of consideration (though she does not get to make the ultimate decision who she lives with). Much would depend on whether the reason(s) daughter gives for wanting to move are valid to the mediator and court and the effect on grades or school attendance and if she would have to change her school. Re CPS; when they say jump you say "how high" and work with them sand do exactly what they ask or say because they have total power and you have no effective recourse. You should seek an experienced local family law attorney.

Thomas Neil is a Sacramento attorney, with 20 years experience, representing clients in Sacramento, the Bay Area, and surrounding counties. Or, if you cannot afford full representation then Mr. Neil can instead write you the forms and declaration you need, help you serve them, and tell you what to say and you can go to court by yourself. A well written declaration by an attorney, supported by proper evidence, will GREATLY increase your chances of success in court. Our office takes credit cards.

Thomas A Neil
3224 El Camino Avenue
Sacramento, CA 95821
(916) 446-4153


Mother is not permitted to change "custody" without a court order or your consent. If you have sole custody, I cannot imagine how she was permitted to change your daughter's school, so I am guessing you have joint legal custody, with your daughter living primarily in your care.

I am not clear from your question what you would like a court to do for you. I would suggest that you set up a joint counseling session for you and your daughter right away, and notify your daughter and her mother in writing. This communication should be open to working things out and not hostile or angry or blaming either of them for the current predicament. If they refuse to come to the table - you should file a motion, and you can ask the court to set it on an ex parte basis. The fact that Mother has removed her from your care against your will, that she has changed her school in the middle of the school year, involved CPS, that your daughter is suffering from emotional difficulties, that she is not permitting contact or cooperating with therapy, etc... - depending on the department you may be able to get an ex parte or an order shortening time. It may be worth a shot.

With all that said - and with the CPS allegations pending - I think you may want to hire an attorney. You really need to get some actual legal advice based on the complete facts of your case - and this Avvo forum doesn't really allow for that.

Best of luck to you and your daughter.

Please be advised that this answer in no way constitutes legal advice, and is only intended to guide you in determining an appropriate direction for individualized legal consultation and/or representation. This answer should not be relied on, as each legal matter, and the appropriate course of action, is entirely dependent on the specific facts of your particular case. You are encouraged to seek the advice and guidance of a respected and experienced attorney practicing in your community to assist you. Please be advised that this answer does not create an attorney-client relationship and these communications are neither privileged nor confidential.