Risa A. Kleiner, Esq.

September 3, 2009

Arbitration has been commonly used in many types of court cases, but until recently, was never viewed as a method for resolving custody disputes.   However, as more and more parties seek alternatives to litigation to save time and money, it was inevitable that eventually someone would want to turn over their custody decisions to an arbitrator.

Unlike mediation, in which the mediator is only there to facilitate a decision that the parties themselves make, arbitration allows the selected arbitrator to be the “decider.”  And, since most parties who are using arbitration are trying to save time and money, they commonly agree that the  arbitrator’s decision shall be binding. 

But recently, when one litigant did not like the custody decision that the arbitrator made by granting residential custody of their child to his wife rather than to him,  he appealled.  The resulting opinion by the New Jersey Supreme Court in Fawzy v. Fawzy has cleared the way for many more couples to use arbitration in their custody disputes.  The court went so far as to raise the “choice of forum” to a constitutionally protected right of parental autonomy. 

Mr. Fawzy lost.  He argued that no one can deprive the court of its parens patriae obligation to oversee the best interest of the children.  The court disagreed and allowed the decision of the arbitrator to stand, thereby reversing the decision of the Appellate Division.  So, custody matters may be submitted to arbitration.  But the court reserves its right to review the decision if it can be shown that it threatens harm to the child.

Whether custody decisions are submitted to the court or to an arbitrator, the parents lose the ability to determine what is in their children’s best interest.  In both mediation and Collaborative Divorce, the parties remain the primary decisionmakers on these issues.  The importance of putting aside differences to make these decisions jointly cannot be overemphasized.  Disagree as they may, the parents know their children far better than any judge or arbitrator will ever know them.

For more information on Collaborative Practice and Mediation, click on the corresponding Tabs on the left side of the Home Page or contact our office at 609.951.2222.