If you are parting ways with your spouse and you share a child, it’s important to know what to expect during the legal process. Neither parent has a greater right to child custody in divorce — and these matters can often be contentious and emotionally overwhelming. If you are facing a divorce, it is essential to understand how custody is decided, when an Attorney for the Child (AFC) is appointed, and what your options are to reach a resolution.
Child custody in divorce doesn’t always require litigation. In fact, courts encourage the parties to a divorce to reach a settlement outside the courtroom regarding the issues that must be determined, including child custody matters. By using mediation, parents can work together to find a custody solution that works best for themselves and their family. While the mediation process is not adversarial, it allows the parties to keep the focus on the best interests of their children and resolve custody disputes amicably in order to preserve the co-parenting relationship.
Typically, child custody in divorce is determined as part of the matrimonial action in the Supreme Court. But before a divorce action is filed, a child custody case may be filed in Family Court — as opposed to the Supreme Court, which has jurisdiction over all divorce cases. Significantly, the Family Court is less formal and offers a broad scope of support services to families, but it does not hear divorce matters.
If you and your spouse cannot reach an agreement regarding child custody in divorce, the court may appoint an Attorney for the Child (AFC). Their only duty is to represent the desires and interests of the child, who is their client. The AFC must advocate for the child’s stated wishes unless they have good cause to believe the child would be at risk of serious harm if their wishes were carried out. In cases where the child is too young to communicate their desires or chooses not to take a position, the AFC may advocate a position they believe is in the best interests of the child — or may choose not to take an active position on behalf of the child at all.
The AFC often meets with both parents at some point in the case. However, they have since they are the child’s legal representative, they have no duty to discuss the case with either parent. The only person the AFC has an ethical obligation to is their child client.
In most divorce cases, the parties will be expected to pay the AFC’s fees, in addition to their own attorney’s fees. This is in contrast with child custody matters that are brought in family court, where the State of New York pays the AFC’s fees. The parties will share this expense pro-rata, meaning the spouse who earns less will pay a smaller portion of this retainer. The AFC will bill the parties according to the AFC’s usual hourly rate. If the charges exceed the AFC’s initial retainer, the parties will be responsible for any additional amount owed, which can also be paid pro-rata.
In many cases — especially when a child is older — child custody in divorce can be resolved soon after the AFC has interviewed their client. If the child takes a strong position and is of sufficient age to make an intelligent decision, the court will usually give great weight to their desires. Attorneys will typically speak to their clients after hearing from the AFC and recommend that they agree to a custodial arrangement that is close to the children’s wishes.
When the parties still cannot reach an agreement after involvement by the AFC, the matter may be scheduled for trial. If there are other unresolved issues in the divorce, these issues will be tried along with the custody matter. It should be noted that sometimes parties cannot make decisions about the other issues in the case until custody is decided. For example, a parent may only want to keep the marital home if they are awarded custody. In such cases, custody can be tried prior to any of the other issues.
If a child custody case goes to trial, both parties can present whatever evidence they have concerning who is better suited to be the primary custodian of the child or proof regarding what visitation is appropriate if custody is not in dispute. Witness testimony from family members, teachers, neighbors, and others may be presented, along with documentary evidence such as medical records and report cards. In addition, psychological experts may be hired to evaluate the parties and the children.
Courts consider the best interests of the child first and foremost in child custody in divorce. A judge will evaluate a variety of factors to make a determination, including the following:
In addition, the judge hearing the case will generally hold an “in-camera” meeting with the child. This means the parties’ child will meet individually with the judge, and the only other persons who will be present at this “private” meeting will be the court reporter and the AFC.
If you are facing a dispute concerning child custody in divorce, it’s crucial to have a skillful and compassionate family law attorney by your side who can protect your rights and ensure the best interests of your child are met. At Duke Law Firm, P.C., we are dedicated to providing our clients with reliable representation for a wide variety of family law and divorce matters, including those involving child custody.
Offering personalized legal services and experienced counsel, we welcome you to contact us today to schedule a consultation to learn how we can help.
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