ATTORNEY FOR THE CHILD(REN)

One of the hardest things about parents divorcing is where the children will live. Most likely this issue will be at the forefront of your children’s minds and yours of course.  You need to ask yourself if you and your spouse can work this out among yourselves?  For the sake of your children, I hope that you can decide which parent will be the residential parent because if you cannot your children will be assigned to an attorney and will be interviewed.  Objectively look if one spouse has been out of the house working while the other spouse has primarily been a stay at home parent. If so, then perhaps this parent should be the residential parent of the children.   However, if both parents did work or will now need to work because you are divorcing then this may no longer be possible.   Whatever the circumstances may be, the best option is for you and your spouse to sit down and work this issue out. If this cannot be resolved, the courts will come to a resolution for you and your family.

As stated above 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 your children’s interest in the divorce action.  This attorney will be paid by you and your spouse on a pro rata basis.  Consequently, 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/her judgement for your children’s judgement.  The AFC’s opinion is simply one of many factors which the court will weigh while deciding about custody.  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.  Now there will be four or more attorneys on your case.

The AFC will meet with his or her client, your child or children. The job of the AFC is to advocate for your children.  The children—without their parents—will be able to speak to the AFC and discuss the case, about how they feel and any other 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 help it decide custody. 

Before going down the long road of a custody battle and involving your children in choosing which parent is the preferred parent to live with, do everything you can to try to work it out with your spouse.  Having your children state which parent they prefer to reside with is a huge burden to place on a child. Additionally, having parents dictate what is in the best interests of their own children is always better than having the Court decide regarding your family’s  lives.