Child custody disputes are often the most difficult conflicts to resolve in divorce. Both parents are trying to act in the best interests of their child yet, oftentimes, they cannot find a compromise when they disagree. Courts prefer that parents settle custody matters on their own. When that isn’t possible, however, the first step is for the court to appoint an attorney for the child(ren). While parents may see the attorney as interfering in their dispute, the attorney can actually be very helpful in facilitating settlement, much like a mediator would do in resolving a financial dispute.
What Is the Role of the Attorney for the Child?
The attorney for the child interviews the children to determine their wishes and concerns and reports back to the judge. Parents will also be interviewed by the attorney to understand their respective views and evaluate what each parent is seeking. Generally, the attorney just relays what the children said and doesn’t give an opinion. However, in certain instances, the attorney may provide an opinion known as substituting judgment. If the attorney for the child substitutes judgment, he or she must still first make known to the court and the parties what the children’s wishes are and explain why he or she wants to substitute his or her judgment over that of the children.
Judges oftentimes give significant weight to the attorney for the child’s report(s). Consequently, parents should take these findings seriously and consider them if and when they are discussing settlement.
How Can an Attorney for the Child Facilitate Settlement of Custody Disputes?
The fact that the attorney for the child will deliver a potentially influential report to the judge can encourage parents to settle rather than allow the matter to go to a forensic psychologist which would be the next step in a custody dispute. A forensic evaluation is a very invasive process that deeply involves the children in the custody aspect of the divorce – something that most people prefer to avoid.
In addition, parents may see the attorney for the child as providing unknown and neutral information about their children’s feelings. Children may not necessarily be honest with parents during divorce or they may find it difficult to listen to kids with an unbiased ear because of the emotions surrounding the divorce. The attorney’s report can help parents find a resolution because it provides their children’s unfiltered perspective.
Can an Attorney for the Child Mediate Custody Disputes?
Mediators are neutral third parties specially trained to help the parties in a divorce find common ground and negotiate a settlement that meets their needs. While they are very helpful in resolving conflicts, they are not used in child custody matters. However, an attorney for the child can play a similar role and has training in communicating with families in custody disputes.
Attorneys can meet with parents to share the children’s views and try to encourage parents to take those views into account when they are negotiating. Parents can benefit from a neutral party keeping them focused on what is best for their children.
In addition, the attorney for the child can help inform the parties about how the judge may read his or her findings and the process for determining custody disputes. If parents cannot settle, it’s the judge who will ultimately decide these issues and they lose control.
While some conflicts cannot be resolved without a judge, parents should make every attempt to decide issues together rather than leaving it to the court.
If you are considering divorce, you want an attorney who will advocate for you inside and outside the courtroom and help you achieve a positive outcome for yourself and your children. Please contact us to learn how we can assist you with your divorce.
