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Litigation. Collaborative Law. Mediation.

What to Expect When Custody is Litigated


In pursuing a divorce, you have choices with respect to the process that you use to reach a global resolution. There are four different process choices: (1) litigation; (2) negotiations without judicial intervention; (3) mediation; and (4) Collaborative Law.

If you and your spouse cannot agree on a custody arrangement through negotiationsmediation, or in the collaborative process, you may have to litigate the issue in court. It is important to note that there are two different types of custody – residential custody and legal custody. Residential custody refers to how parenting time is divided between you and your spouse. Legal custody is the right to make major decisions for the children. This includes medical, educational, and religious decisions.

If no agreement is reached out of court, the judge appointed to your case will eventually make a determination. Importantly, just because you are in litigation, it does not mean that the judge will necessarily make the final determination. You and your spouse are free to settle custody at any time during the court proceeding.

However, if the case does not settle, here are the steps that you can expect:

The appointment of an attorney for the children

Generally, in custody litigations, the judge will appoint an attorney to represent the children, often referred to as an “AFC.” This attorney will not be used as a tiebreaker between you and your spouse; rather, the role of the AFC is to advocate the children’s wishes and best interests in your divorce. The AFC will meet with your children and become familiar with their interests. They will likely maintain somewhat regular contact with your children throughout the proceeding and answer your children’s questions and concerns about the process. The AFC will be part of conferences and court appearances with the judge.

If your children are older, and capable of making thoughtful decisions, the AFC will generally be guided by the wishes of your children. In some circumstances, if the AFC determines that a child is incapable of making knowing and voluntary decisions, and they determine that what the child wants is not in the child’s best interest, they can substitute their own judgment.

Forensic evaluation

If custody remains unresolved during the litigation process, the judge is likely to appoint a forensic evaluator to conduct and prepare a custody evaluation of the parents and the children. The specific parameters of the evaluation will be determined by the judge in the appointment order, but generally the evaluator is directed to assess each parent’s capacity for parenting, the needs of the children, the ability of each parent to meet those needs and the ability of each parent to provide a stable and loving home.

In connection with the evaluation, which often spans over the course of several months, the evaluator will conduct interviews with the children, each parent together with the children, each parent alone, and any collateral sources that may provide helpful insight such as caregivers, therapists, or teachers. The evaluator may ask each party to provide certain documents as well.

After the evaluator has completed the interview and investigation process, the evaluator will prepare and submit a report to the judge, detailing their findings and recommendations. This report is usually lengthy, sometimes totaling over 100 pages.


After the forensic report is issued, custody often settles based on the recommendations of the evaluator. If custody still cannot be settled, your case will proceed to trial. At trial, you and your spouse will each have the opportunity to testify, call certain witnesses, and present evidence. The forensic evaluator will likely testify as to the report and recommendations, and will be questioned by both parties’ attorneys. The trial will likely take place over the course of several days or weeks. Following trial, the judge will issue a decision on all issues of custody.

Berkman Bottger Newman & Schein, LLP can help you navigate your custody issues. To schedule a consultation with a New York City matrimonial law attorney, please calls us at (212) 466-6015, or reach out to us through our contact form today. We maintain offices on 5th Avenue in Manhattan, in White Plains, and in Bergen County, New Jersey.