No one gets married thinking they will get divorced; but, unfortunately, faced with challenging times or incompatibility, approximately forty to fifty percent of marriages in the United States end in divorce, according to the CDC. When they do, the legal process can be daunting and stressful, not only for the couple, but also for their children.
When a couple with children decides to file for divorce, the divorce proceedings will also include determinations about the children’s physical and legal custody. Under New York law, unless a court order determines otherwise, both parents have equal rights to the physical and legal custody of the children. However, in the event parents are unable to come up with an amicable arrangement regarding child custody, the issue will go before a court and a judge will determine the details of the child custody arrangement.
Court proceedings that involve parents who disagree over their children’s custody can be very difficult. Often, parents will argue that the other parent is unable to care for the children, which can cause extreme emotional pain and stress on the children.
Child Custody Filing
Navigating the court process concerning child custody can be confusing, and the overall emotional toll caused by a divorce generally can be very taxing. Hiring an experienced child custody attorney to counsel you and help you navigate both the divorce and custody process is highly advisable.
If you and your spouse are unable to reach an agreement regarding custody of your children, your attorney can help present the relevant facts and applicable law to the court and establish your ability to care for your children, as well as your spouse’s inability to do so, based on factors such as personality, lifestyle, parenting style, health, relationship with the children, history of alcohol or drug abuse, and other considerations. When determining the physical custody arrangement for children, the court will also take into account each parent’s place of residence and proximity to the children’s school.
Does My Child Need His or Her Own Lawyer in a Custody Case?
Aside from evaluating each parent’s ability to care for a child, the court may also ask the child for his or her opinion regarding the parental custody arrangement. If the court determines that the child is mature enough to influence the decision about his or her own custody arrangement, the court may appoint an attorney to represent the child’s best interest. An attorney may also be appointed to represent a child when it becomes evident to the court that the parents are not taking into consideration the best interests of their child during the proceedings.
Other instances in which an attorney may be appointed by the court include cases in which a spouse believes that the child’s safety would be at risk if the other parent had custody rights, due to substance abuse or violence. A court may also determine that a child requires his or her own lawyer when the child is unable to communicate his or her preference and the court would like to be provided with opinions or substantiated conclusions as to what is in the child’s best interests, offered on behalf of the child.
Whether the court decides it is appropriate for a child to have his or her own attorney, or where one of the parents requests an attorney to represent their child, a child can benefit from legal representation. An attorney for a child will listen to the parents and child, give advice, suggest and explain potential custody solutions, and discuss the consequences of various options. Further, because the child’s conversations with the attorney are confidential, the attorney can help the child clearly express his or her wishes to the court.
A lawyer representing a child in a custody case will help identify what the child wants and clearly relay information to the court during a custody hearing, supported by evidence, so that the court may make an informed decision regarding custody. Some of the investigative methods an attorney representing a child will utilize in order to gather evidence to best represent the child include speaking to doctors, family members, teachers, and social workers, and reviewing medical records.
One thing to keep in mind, however, is that while the intention of an attorney for the child is to aid the child, sometimes a child will simply leverage the attorney as a tool to manipulate their parents. It is not uncommon for children to threaten the parents with calling their lawyer if their own wishes are not met or, in extreme cases, to extort the parents.
A lawyer representing a child during custody matters may either work independently from the parents or take the side of one parent during the litigation if the attorney believes that being aligned with that parent’s position is in the child’s best interests.
Even if an attorney is appointed by the court upon the request of one of the parents, the attorney will promote the child’s wishes even if that position is contrary to the desires of the parent who requested the appointment. This is true so long as the child is capable of understanding his or her position, the child has the free will to express his or her opinion with reasoned judgment, (or the child’s attorney can substitute his or her own judgment for the child), and the position does not endanger the child.
Who Covers the Costs Involved in Hiring a Lawyer for My Child?
The cost of an attorney for a child, whether requested by the parents or mandated by the court, is borne by both parents or, in some cases, by only one parent based upon the “economic realities of the matter.”
Custody cases can be costly, and while an attorney for the child will add to the expense of the litigation, the attorney can also alleviate some of the complexities of child custody arrangements or can support the position of one of the parents at trial, as occurs in many cases. If you are unsure whether or not you should request that an attorney be appointed to represent your child’s interests, discuss the matter with your child custody attorney.
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