The hardest thing about a divorce, especially for your children may be what parent they will live with. This will probably be at the forefront of your children’s minds and probably be this way for you as well. The first thing is to try to work it out with your spouse. This would be ideal for you should try to avoid having the Court decide the future of your family. If one spouse has been out of the house working while the other has primarily been a stay-at-home parent—tending to the daily needs of the children—perhaps that should continue subject to parenting time for the other spouse. However, this may no longer be possible as both parents may now be working to provide for individual households. Whatever the circumstances may be, the best option is for you and your spouse to sit down and try to resolve this issue.
The first thing that a court will do if custody is an issue is to assign your children an attorney, commonly referred to as the “Attorney for the Child” or AFC. The role of the AFC is to represent the interests of your children. This attorney will be paid for by you and your spouse on a pro rata basis. Thus, there are now at least three attorneys working to resolve custody. The older the children are the greater voice they will have through their attorney and the greater the court will listen to what they have to say. The younger the children are, the more likely that the AFC will substitute his or her judgement for your children’s judgment. While carrying great weight, the AFC’s opinion is simply one of many factors which the court will weigh while making a determination about the custody of your children. In instances where there is more than one child and if the children’s interests diverge, the court may assign an AFC to represent each child. Now there will be four or more attorneys getting paid on your case.
The AFC will meet with your children without you and your spouse to discuss the case and how they feel about any issues. Should your matter go to trial, the court will also speak to your children directly, with the AFC present, to gather any information the court deems necessary to decide custody. Before going down the road of a custody battle, if at all possible, work it out with your spouse. Despite the any ill feelings that you may have towards your spouse during your divorce, having parents dictate what is in the best interests of the children is always better than having a judge make a final determination regarding your children’s lives—and yours.