I previously have written about a New Jersey appellate decision in the case of Fawzy vs. Fawzy.  In that case, the appellate panel disallowed the use of binding arbitration to determine parenting arrangement for children in a divorce, arguing that the court can not delegate to others its own parental obligations of making sure things are done in the best interests of the children.  Arbitration is the use of a private judge to determine the outcome of a dispute.  It is optional for the parties.  Parties usually choose to arbitrate a matter because you can engage an “expert” judge who can render a decision far more quickly (and hopefully less expensively) than the court.  The disadvantage is that arbitration decisions are appeal-able only on very narrow grounds.

Last week, the NJ Supreme Court unanimously overturned the appellate panel’s decision, but added several caveats when arbitration is used in a parental setting.  The court held:

  • The constitutionally protected right of parental autonomy includes the right of parents to choose the forum in which to resolve their disputes over child custody and parenting time — including arbitration.
  • An agreement to arbitrate must be in writing or recorded and must establish that the parties are aware of and have knowingly and voluntarily waived their rights to a judicial determination. A record of documentary evidence adduced during the proceedings must be kept; testimony must be recorded; and the arbitrator must issue findings of fact and conclusions of law in respect of the award.
  • The arbitrator’s award is subject to review under the NJ Arbitration Act, except that judicial review is also available if a party establishes that the award threatens harm to the child.
  • Parental autonomy includes the right to submit any family controversy, including child-custody and parenting time issues, to a decision maker of chosen by the parents. The right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues between themselves, without state interference, does not evaporate when a marriage breaks down. It is only when the parents cannot agree that the court becomes the default decision maker. There is no basis to carve out of the right to parental autonomy the decision to submit child-custody and parenting-time matters to arbitration. Just as parents choose to decide those issues among themselves, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen. The right to arbitrate serves an important family value by allowing parents the opportunity to choose an arbitrator based on her familiarity with the family or her understanding of the values that the parents hold dear and have tried to follow in raising their child.
  • A guardian ad litem may not simultaneously or sequentially serve as an arbitrator for the parties.

This ruling gives parents a greater latitude in choices while still protecting the best interests of the children.