Arbitrating Child Custody Disputes

On July 1, 2009 the New Jersey  Supreme Court, relying on its parens patriae powers, gave legitimacy to the non-judicial of procedure of  arbitration to resolve child custody and parenting time disputes. As such Fawzy v. Fawzy, 199 NJ 456 (2009) is a groundbreaking case and, I believe, establishes a practice that is unnecessary and dangerous. When this couple divorced they mutually agreed to use binding arbitration to resolve future disputes. It is not surprising that, as the arbitration unfolded, one party became very dissatisfied. The devise that was supposed to limit litigation and legal fees wound up in the Appellate Division and then in the New Jersey Supreme Court. In order to get court review of an arbitrator’s rulings, a party must establish a prima facie case of harm to the child. This standard for court intervention is much more narrow that a “best interests” standard and makes judicial intervention much less likely. This case opens the door wider for mental health professionals, among others, to become involved in a highly emotionally charged situation. The Court built in several excellent safeguards: including having to establish that both parties understood the voluntary arbitration process they are choosing; a record of all documentary evidence is kept; all testimony must be recorded verbatim; and the arbitrator must state in writing or otherwise record his or her findings of fact and conclusions of law with a focus on the best-interests standard. If this idea catches on, I expect that more mental health professionals will be subjects of licensing board complaints. This is the danger. The issue of necessity is addressed in other articles on this website.