CUSTODY OF THE CHILDREN

For children, one of the hardest things about parents divorcing is where they will live. First, really ask yourself if you and your spouse can work this out among yourselves?  This would be ideal.  If one spouse has been out of the house working while the other spouse has been a stay-at-home parent—tending to the daily needs of the children—then you may be able to continue this. However, if both parents need to work, 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 out. If it cannot be resolved between the two of you then the Court will decide. This important decision will now be out of your control. 

The first thing that the 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. He or she will be your child’s own attorney.  This attorney will be paid for by you and your spouse on a pro rata basis.  Now you have 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 their judgement for your children’s judgement.  The AFC’s opinion is simply one of many factors which the Court will weigh while determining 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 another AFC to represent each child. Now you and your spouse are paying for at least four attorneys to resolve custody, as each child may need their own attorney.

The AFC will meet with his or her client and is there to advocate for the children.  The children—without their parents—will be able to speak to the AFC and discuss the case, about how they feel.  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 decide custody. 

Before going down the road of a custody battle, if possible, work it out with your spouse.  Having your children publicly state which parent they prefer to reside with is a huge burden to place on any child. Additionally, having parents dictate what is in the best interests of the children is always better than having the Court make a final determination regarding the lives of your family.