Child Custody Rights and Child Support Payments for Older Sibling

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“I currently live in the state of Florida, and my mother and 16-year-old brother live in California. My mother told my brother that he needs to find a place to live because she doesn’t want him anymore. He called me and wants to come live with me. His father, who lives in Pennsylvania, pays child support for him every month. I would love to have him, and with his child support I would have more than enough money to support him.

Can you please tell me what the procedure would be to get my brother to me? Would I be in trouble for kidnapping if I paid for a car to the airport and a plane ticket for him to come here now without taking any legal action? Would we have to go to court in California for his custody hearing and then to Pennsylvania for his child support to be changed? I am 25 years old, I’m married, I have a 2-year-old son of my own. My husband and I both work full-time jobs but we work opposite shifts so someone is always home. We’ve done that since our son was born because we don’t want to send him to day-care. My mother rarely has a job and relies on the child support that she receives for my brother and is always struggling to make ends meet and for no reason. She could work if she wanted to. I feel he would have a better life with me and explained to him that he would have to tell a judge what happens at home and that he wants to live with me, if thats what he wants. I appreciate any information you can give me.”

This is a very complicated situation, unfortunately, but let’s try to break it down into pieces.

The first issue is, can your brother choose where to live. There is a real dichotomy here in the California family law system (and most other systems) because first, despite popular misconception, a child of divorced parents does not get to choose where they want to live when they attain a certain age. Many people believe that once a child reaches the age of 12 or so, that they are allowed to choose with which parent they want to live. And that’s just not so.

However, that said, most judges recognize that a sixteen-year old, less than two years away from being an “adult”, and being able to make their own living decisions anyways, is not going to go where they don’t want to go. In the case then of choosing between parents, if your brother decided to go live with his father, a court would be unlikely to order him to stay with your mother.

This is complicated, however, by the fact that you are not one of his parents, you are his sister. And so even though you are family, you don’t have the same rights as does a parent. For that reason if at all possible it would be best to at very least have something in writing from your mother saying that he can come to stay with you (even if it’s not formal – even just an email would be better than nothing) before arranging for him to come to you.

Adding yet another layer of complication is the issue of child support. It may be that your mother will not be willing to give you anything in writing because, as you say, she relies on the child support which she receives for your brother. She may not want to jeopardize that.

Then too, even if your mother’s desire for the child support were not an issue, unless you obtain an order giving you at least temporary custody of your brother, your brother’s father will be under no obligation to pay child support to you. In fact, even with such an order, if it doesn’t specifically spell out that he should pay child support to you, he will be under no obligation to do so.

Finally, the issue of jurisdiction. Presently, assuming that the most recent orders in your mother’s case with your brother’s father have come from California, California has jurisdiction over this matter, including over the matter of child support. Thus with respect to the legal system, you would need to find a way to bring an action in California, most probably having an attorney file a motion under your mother’s existing case (they stay open until the children are eighteen), and asking the court to allow you to join the case as an interested party.

Alternatively, if your brother comes out to you in Florida, it may be that Florida has laws which would allow you to bring an emergency action for custody in Florida, because he is there, but you absolutely must consult with an experienced Florida custody attorney in that regard to find out whether that is an option.

It’s unlikely, given everything you’ve stated, that you would get in trouble for kidnapping, but it’s not impossible and, again, you really need something in writing to protect yourself.

Given all of these issues, your two most likely options are either to work an agreement out with your mother and get something in writing, and then attempt to work out an agreement with your brother’s father as well, or to bring a legal action in California.

Please also note that if your brother’s father agrees outside of court to send child support to you, that the only way to ethically have child support paid directly to you is to have your mother agree to stop receiving child support, have an agreement to that effect drawn up between your mother and your brother’s father, and then have that entered as an order by the court. Otherwise, your brother’s father may end up sending the support to you, but he would still be legally on the hook to keep paying your mother, which would be extraordinarily unfair to your brother’s father.

All of that said, you may want to consider having your brother come out to stay with you, and not bring up the issue of child support at all for a while – just get something in writing saying that your mother knows that he is coming out to stay with you. Wait until he has been with you for several months, and then bring the action in California. At that time your brother will have already been with you for many months, and your odds of having a favourable decision by the court will be much better, and by not rocking the boat over child support, it is less likely that your mother will cause problems for you and your brother.