The hardest thing about a divorce, especially for your children, is the fact that the family unit will no longer be one. Where the children are going to live, i.e. physical custody, will be at the forefront of your children’s minds. It should be that way for you as well. Can the two spouses work this out among themselves? This would be ideal. If one spouse has been out of the house working while the other has primarily been a stay at home parent perhaps that should continue if it is financially possible and of course subject to parenting time for the other spouse. Maybe that is no longer possible and now both parents will be working to provide for their own individual households. Whatever the circumstances may be, the best option is for the parents to sit down and decide this issue between themselves. If this cannot be resolved, then the courts and lawyers will come to a resolution which, to a certain extent, will be out of the parents’ control.
The first thing a court will do if custody is an issue is to assign an attorney, for the child or children. This is commonly referred to as the “Attorney for the Child” or “AFC.” The role of the AFC is to represent your children’s interest in the divorce action. This attorney will be paid for by the parents 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. The younger the children are, the more likely that the AFC will substitute his or her judgement for their client’s judgement. This means that the younger your child is the more input your child’s AFC has. The AFC’s opinion is simply one of many factors which the court will weigh in making a determination but has a great deal of weight. In instances where there is more than one child and if the children’s interests diverge, the court may assign another AFC to represent each child.
The AFC will meet with his or her client and is there to advocate for the children. The children—without the parents—will be able to speak to the AFC and discuss the case and any issues that come up during the action. Should your matter go to trial, the court will speak to your children directly, with the AFC present, to gather any information the court deems necessary to make the determination with respect to custody. Before going down the road of a custody battle, if at all possible, work it out with your spouse. Having the parents dictate what is in the best interests of their children is always better than to have strangers such as lawyers or the court make that determination.