For most of my divorce clients, their priority is their children. Their first question is often, “What will happen with the kids?” The answer: a lot depends on the parents and whether you can reach an agreement.

Let’s start with the basics. There are two aspects of child custody. Legal custody is the right to make important decisions for the child, like academic, health, and religious decisions. Physical custody is where the child will live and/or spend his or her time. In many cases, the parents share joint legal custody and they also share time with the children according to a schedule that works best for their family. The schedule of sharing time with the children that the parents follow used to be referred to as “visitation.” Now, how parents divide time with the children is commonly referred to as “parenting time,” or a “parenting schedule.”

If the two parents can agree on custody and parenting time, an attorney will put the agreement in writing for both parties to sign. Once signed by both parents, the custody and parenting agreement will become an order of the court.

It is best if you, as parents, can reach an agreement without getting the court involved. Do you want a judge to dictate the times and days of the week you are able to see your children? By reaching your own agreement, you eliminate the possibility of a judge making decisions and imposing a schedule upon your family that you do not want, and/or that does not work for your family and lifestyle.

There are resources that your attorney can provide to help you and your spouse in reaching a custody and parenting agreement. For example, if you and your spouse agree, you can use the collaborative process to negotiate an agreement. Alternatively, your attorney can refer you to a family counselor, or a mediator to assist you in your spouse in reaching a parenting plan that fits your family needs.

But what happens if you and your spouse cannot agree? When you are involved in a contested divorce or custody case in court, and you and your spouse are not able to come to an agreement about custody and parenting time, the court will appoint an attorney to represent your children. Attorneys appointed to represent children, formerly referred to as “law guardians,” are called “AFCs,” attorneys for the children. When the judge is informed that the parties to a divorce cannot agree on custody, the court will randomly appoint an AFC from a list of attorneys trained to perform this role. The AFC is responsible for representing the children. That means that the AFC must meet with the children. The attorney for the child must maintain the children’s confidences just like your attorney must maintain your client confidences. And, the AFC is responsible for advocating for whatever the children would like.

Many parents become frustrated by an AFC, especially when they find out that the attorney for the children is not required to meet with or speak to either parent. It is important to understand that the AFC, does not have any legal obligation to either parent. The AFC is free to determine whether a meeting or discussion with the parents is necessary. An AFC has the discretion to represent the children as that attorney sees fit.

The AFC plays a very important role in the court’s decision-making process. The attorney for the children will report the children’s wishes to the court, and the court will take that into account when deciding custody and parenting time in your divorce. If you and your spouse cannot settle custody, the court must conduct a trial. The judge will hear sworn testimony and receive evidence, and if necessary, the judge will meet privately with the children and their attorney to discuss what the children want. After hearing all of this, the judge will decide custody and parenting based upon the “best interests” of the children. For further information about how the court determines the children’s best interests, click here.