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Can You Arbitrate Custody and Visitation?

The NJ Appellate Division decided this matter in an opinion published today.  Arbitration is an alternative (or complementary) dispute resolution method.  In a nutshell, instead of a court acting as the judge in a dispute, a private neutral acts as such.  The main advantage is that the rules are more relaxed than the court’s, which should lead to an expedited process.  The main disadvantage is that the decision has very narrow grounds to appeal (basically, arbitrator misconduct).

In the case of Fawzy v. Fawzy (A-5337-06T1), the court looked at whether parties in a matrimonial action can agree to binding, non-appealable arbitration of child custody and parenting time issues. The court concluded that such an agreement violates the court’s “parens patriae” (responsibility of the government to protect individuals in need) obligation to protect the best interests of the children and is void as a matter of law.  That (parens patriae) role requires the trial court to determine the best interests of
the children regardless of any agreement as to custody and parenting time (which could also include agreements negotiated in mediation or by attorneys).

The court did go on to say that as the courts gain experience in the arbitration of child support and custody
disputes, it may become evident that a child’s best interests are as well protected by an arbitrator as by a judge.

The appellate court remanded the case back to the family part in Middlesex County for a plenary hearing.

Categories ArbitrationDivorce Mediation and Law
Tags child custodyDivorce Mediation and Lawvisitation
Marvin Schuldiner :