Can I Demand My Son Go To School?

Question:

My son is 16 years old (17 in Feb ’09) and I am currently paying both child and spousal support to my ex-wife. She has primary custody as he lives with her in CA and I’m in CO.

My son, who decided to do the independent study program with his High School last year last trimester, dropped out of the program at the beginning of this school year (Sept ’08). I recently confirmed this with his High School who indicated that my ex-wife said he had moved to CO to be with me. That is absolutely untrue. I wish it was true because he would be in school and a lot better off with me!

His plan was to take his GED, but so far he has not passed. I want him in school immediately, but she’s allowing him to sit at home doing nothing, not even working. Without a HS Diploma or GED and being under 18 years old, isn’t that illegal?

I’m about ready to stop making child support payments since he’s nothing more than a HS drop-out at this point and she’s fueling the fire for his lack of direction and discipline. I talked with the on-site school police officer that handles truancy, but he said he can’t do anything without a court order, charges and etc. I would love some advice and a referral for an attorney in Ventura County, CA that is known for successfully representing men with children. I want to press charges against her, modify my child support accordingly and force him to go back to school.

Answer:

You raise several different legal issues, all of which are dependent upon the laws of California, Colorado, and, if you divorced elsewhere, possibly a third state.

The mandatory school attendance age varies by state.  As the truancy officer has indicated that he is unable to take action, it would appear your son is passed the age of mandatory school attendance in California, as 16 is a common age at which school enrollment is at the discretion of the custodial parent.  As it appears your ex-wife has authorized the “non-enrollment” of you son, neither he nor she can not be prosecuted for truancy.

Whether his situation constitutes child neglect or endangerment is also determined by California law and would require the State to intervene and commence juvenile proceedings, which appears to be what the truant officer was referencing.  Unless your son has committed a criminal act, most states will not intervene in the type of parenting issues you have identified as to a 16 or 17 year old, as they might for a younger child.

As to your child support and seeking a change of custody to get him back on track, you need to commence modification proceedings in the appropriate state or states.  You will need to take all of your divorce court documents to a qualified attorney to evaluate the terms of your divorce and the history of your situation to determine which state or states have been involved and which would be the appropriate forum for which issue, as child support and child custody issues are governed by slightly different jurisdictional rules.  The lack of direction and education of your son would generally be sufficient grounds for a change of custody, although you can expect your ex-wife to assert mitigating circumstances and perhaps your son to object to being reigned in.

Cordell & Cordell has offices in Colorado that may assist you in these preliminary reviews of the issues, after which you may be able to determine in which state you need to obtain counsel.