NJ Supreme Court Rules Parents Can Use Binding, Non-Appealable Arbitration to Resolve Custody and Parenting Time Issues (Brian G. Paul).

In a precedent setting decision, Fawzy v. Fawzy, 199 N.J. 456 (2009), Brian Paul successfully convinced the New Jersey Supreme Court that parents in New Jersey should be permitted to utilize binding, non-appealable arbitration, with a decision maker of their choice, as a means of resolving custody and parenting time disputes. Arbitration is a process where litigants choose a mutually acceptable individual (it does not have to be a lawyer or retired judge), to render a binding decision resolving their dispute. The public policy goals of arbitration are to provide litigants with a speedier, less expensive, more private, final alternative to traditional litigation through the judicial system. The Appellate Division had previously ruled that an arbitrator’s binding, non-reviewable custody and parenting time award was void as against public policy on the basis that it usurped the Trial Court of its obligation to insure that the children are being protected from harm. Brian argued that a per se bar on the use of arbitration to resolve custody and parenting time disputes violated parents’ constitutional right to raise their children without interference from the State.

The New Jersey Supreme Court agreed with Brian that parents have a fundamental constitutional right to make decisions involving their children, and that a Court could only interfere with the parents’ decision if there was evidence that it would place the children at risk of harm. Included within the constitutionally protected right of parental autonomy is rights of parents to choose the forum, and individual, who will resolve their custody and parenting disputes. Accordingly, the New Jersey Supreme Court agreed with Brian that the Appellate Division was wrong in holding that an agreement to arbitrate custody and parenting time was void as against public policy, and instead set forth procedural safeguards so that parents could knowingly utilize arbitration as an alternative to litigating through the judicial decision. In so doing, the New Jersey Supreme Court adopted Brian’s proposed test requiring a parent seeking to set aside an arbitrator’s decision to overcome the difficult task of demonstrating that the arbitrator’s ruling places the child at a threat of harm. Such a test properly balances the parents’ right to have an individual of their choice resolve their dispute in an alternate forum than the formal court system with the need to insure that children are protected from harm.