By Hope Tuber
The hardest thing about a divorce, especially for your children may be where will they live, i.e., physical custody. This will be at the forefront of your children’s minds. It should be this way for you as well. Can you and your spouse work this out among yourselves? This would be ideal. If one spouse has been out of the house working while the other primarily has 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 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 work this issue out. If this cannot be resolved, the courts will come to a resolution which, to a certain extent, will be out of your control.
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 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. The younger the children are, the more likely that the AFC will substitute their judgement for their client’s judgement—your children. 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 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, how they feel 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 decide custody. Before going down the road of a custody battle, if at all possible, work it out with your spouse. 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.