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Child Custody In Divorce Cases

A child custody case may be filed in Family Court, or it may be litigated as part of a divorce case in Supreme Court. What should you expect if custody is an issue in your divorce?

First, if you and your spouse cannot reach an agreement as to custody and visitation, the court is likely to appoint an Attorney for the Child (AFC). The AFC used to be known as the "Law Guardian" and many still use this title to refer to the attorney who will represent your child(ren). The AFC's only duty is to represent the desires and interests of their child client. Unless the AFC has good cause to believe the child is at risk of serious harm should the child's desires be followed, the AFC should advocate for the child's stated wishes. When the child is too young to communicate their desires or chooses not to take a position in the custody and visitation litigation, the AFC may advocate a position they believe is in the best interest's of the child or may choose not to take an active position on behalf of the child at all. While the AFC may often meet with both parents at some point in the case, the AFC has no duty to discuss the case with either parent and the only person the AFC must meet 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 different than family court where the State of New York pays the AFC's fees. In most instances, the divorce court will award the AFC an initial retainer of $1,500-$2,000. The parties will share this expense pro rata, meaning that if you earn less than your spouse you will pay a smaller portion of this retainer. The AFC will bill the parties according to the AFC's usual hourly rate, and if the AFC's charges exceed the initial retainer, the parties will be responsible for the additional amount owed, also payable pro rata.

In many cases, especially when the children are older, custody matters can be resolved soon after the AFC has interviewed their clients. If the children take a strong position, and are of sufficient age to make an intelligent decision, the court will give great weight to the children's desires. Therefore, many times attorneys will speak to their clients after hearing from the AFC and recommend that they agree to a custodial arrangement which is close to the children's stated desires.

When the parties still cannot reach an agreement after involvement by the AFC, usually the matter is scheduled for trial. If there are other unresolved issues in the divorce (property distribution, support, etc.), most often these issues will be tried along with the custody matter. However, sometimes people cannot make decisions about all the other issues until custody is decided (i.e., parent only wants to keep the home if they are awarded custody), and therefore custody is tried prior to any of the other issues.

At trial, both parties present whatever proof they have regarding who is better suited to be the primary custodian of the children, or proof regarding what visitation is appropriate if custody is not in dispute. Usually, the proof comes in the form of witness testimony. Both parents will certainly testify, and usually other witnesses are called such as family members, friends, neighbors, or teachers. Sometimes, documentary evidence is presented such as report cards, medical reports, or written communications between the parties. Psychological experts may be hired to evaluate the parties and/ or the children, and may testify as to who is best suited to parent the children.

Once all proof is received from the parties, generally the judge hearing the case will meet with the children prior to rendering a decision. This meeting is usually referred to as an "In Camera" meeting. This means that parties' children 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 (and on occasion the judge's clerk/ court attorney). While a transcript of the In Camera meeting is available in case of future appeal, neither parent is told exactly what was said during the meeting. However, with the children's permission, the judge or AFC may reveal some details to the parties, including what the children said they wanted in terms of custody and visitation.

After the trial and In Camera meeting, the judge will issue either a written or oral decision. Written decisions are more common, but the judge may sometimes tell the parties of the decision in court. Where the judge believes the decision is clear or where circumstances demand a quick end to the custody litigation, the judge may tell the parties of the decision immediately following the end of trial. In other cases, the parties may have to wait weeks or even months to receive the decision.

The court is required to base their decision upon the "best interests" of the child. Because "best interests" is a very general term which can be interpreted differently from judge to judge, the final decision is sometimes a surprise to the parties and very often involves terms which both parties believe are negative. A custody decision, because the judge has great leeway as to their determination, is very difficult to overturn on appeal.

As there is always risk to both parties in litigation, and rarely does either party get exactly what they want after trial, it is best to resolve custody disputes before trial whenever possible. Custody trials can also be very expensive and emotionally exhausting. Children are usually caught in the middle of the turmoil. Custody trials always increase animosity between the parents. Therefore, it is in everyone's best interests to make every attempt to reach a solution rather than have a custody trial.

If a trial is necessary, you need to be prepared not only with evidence for trial, but also emotionally and financially. As mentioned above, appeals of custody decisions are difficult, and you must be prepared for the fight now as you may not get another chance to achieve what you believe is best for your children.

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