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.


Everyone knows someone who is divorced. But not everyone knows what will happen in your divorce. Every divorce is different.  Your divorce is not like your neighbor’s it will be based upon the particular facts in your situation. You definitely can’t believe everything you hear! These are a few of the divorce myths that I hear most often.


This is false. You do not have to be physically or legally separated from your spouse before you can get divorced. In New York State, you can get divorced on the grounds that there has been an “irretrievable breakdown” in the marriage for a period of 6 months or more, and you no longer wish to be married. This is often called the “no fault” grounds for divorce. That means that you are not claiming that your spouse committed some act that is the reason for divorce, just that the marriage is broken.

If you and your spouse can agree on all issues necessary to resolve your divorce, you can get an uncontested divorce, without either of you going to court.  Click here for more information about uncontested divorce.

Even if you have to go through the court process because you and your spouse cannot agree on everything, you can still get divorced based upon an irretrievable breakdown of the marriage. You do not have to claim that your spouse is at fault for the divorce, and you do not have to be separated for any period of time before filing for divorce.


This is a misleading myth. You can leave the marital residence without waiving any rights you have with regard to the home or the property that you have at the home.

“Abandonment” is one of the grounds that can be asserted to get a divorce in New York. To allege abandonment, you must state that your spouse abandoned you for a period of 1 or more years. However, since the law allows you to get a divorce based upon the irretrievable break down of the marriage for a period of 6 months, it is now uncommon for people to allege abandonment.  Most divorces are based upon an irretrievable breakdown of the marriage.

*It is important to note, however, if you have children, leaving the marital residence can have an impact on custody in the divorce.

To be safe, it is best to consult with a lawyer before leaving your marital residence.


This is false. Custody of the children is decided by a judge based upon the best interests of the children. Custody can also be agreed upon by the husband and the wife.

How will the judge decide custody?

A judge will consider the specific facts of your situation before making a decision about custody. The types of things that the judge will consider are: maintaining stability in the child’s life, the wishes of the child, each parent’s fitness and ability to provide for the child’s intellectual and emotional development, the willingness of each parent to foster a relationship with the other, each parent’s past performance, and the quality of the respective home environments.

A court will also consider the child’s wishes. However, the child’s wishes are not determinative. When considering the child’s wishes the judge must consider the age and maturity of the child and the potential for influence having been exerted on the child by one of the parents.

The judge will also take into account financial status and the ability to provide for the child.

Perhaps, the most important thing the judge will consider is the quality of the home environment and the parental guidance the custodial parent provides for the child.

What does “custody” mean?

A word of caution: 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 spend his or her time, or live.

In many cases, parents share joint legal custody and they share time with the children (also called “parenting time”) according to a schedule that works best for their family.

Don’t believe everything you hear!

There are many more common myths about divorce that clients repeat to me.  Friends and family may try to be helpful by giving you their advice.  However, your situation is unique.  It is best to get (and follow) advice from an experienced divorce lawyer before you make any decisions about your separation and/or divorce. Call me for a complimentary initial consultation by phone or video conference: (315) 216-0176.