Often when parents who are divorcing are already in court and do not agree on custody, the court will assign an “attorney for the child.” This is an attorney who will interview both parents and the child or children. The attorney for the child will ask the child what their position is, and if the child is seven years of age or older, they will advocate that child’s position to the court.
Should the parents be low income, the attorney for the child will be assigned at no cost to them; however, should the parents be able to pay, they will have to pay the attorney for the child proportionately according to their respective incomes. Keep in mind that, despite the parents paying for the attorney, there is no control by the parents over the attorney for the child. He or she is free to advocate the child’s position regardless of whether that is what the parents wish. Needless to say, it also makes the litigation cost more.
Generally speaking, the courts will consider the “best interests of the child” in the “totality of the circumstance.” The court will make a determination as to which parent should have custody and a visitation schedule for the noncustodial parent. Unless visitation to the noncustodial parent is harmful to the child, the court will normally rule that visitation should be granted.
In a recent case that was decided in April of 2017, an attorney for the child advocated that the children should be able to make their own visitation schedule with their mother. The court granted it with respect to the seventeen-year-old, but not the twelve-year-old. The court’s reasoning was that the seventeen-year-old “had demonstrated sufficient maturity to determine when and how often he wished to visit” his mother. The court determined that the twelve-year-old was not mature enough to decide when and where to visit with his mother, as he had already shown a propensity to want to be with friends rather than seeing his mother.
When advising our clients, we encourage them to either mediate or try to negotiate and reach a settlement with the other parent, not just to save money (although that is a consideration), but also because, when you allow an attorney to advocate for your child and a judge to make a determination, both parents are not in control of the outcome and may not be satisfied with the decision. In other words, you never know what you’re going to get.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516