Attorney for the Child Assigned in Custody Cases
The hardest thing about a divorce, especially for your children, is the fact that the family unit is no longer going to exist. 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 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. Maybe that is no longer possible as not both parents will now be at work providing for individual households. Whatever the circumstances may be, the best option is for the parents to sit down and work this issue out between themselves. If this issue cannot be resolved, the courts and lawyers will come to a resolution which, to a certain extent, will be out of the parent’s control.
The first thing that a court will do if custody is an issue for them to decide 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 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 their judgement for their client’s judgement. The AFC’s opinion is simply one of many factors which the court will weigh in making a determination. 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 this 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 he parents dictate what is in the best interests of the children is always better than to have strangers, i.e. lawyers and the court, make that determination. Focus on your outcome, stay strong and keep taking ground.