To: Friends, Forwarders and Fellow Professionals

From: Todd M. Sahner, Esq.

Dated: September 10, 2009

 Re:  Arbitration of Child Custody and Parenting Issues

Our Supreme Court has recently issued a significant decision affecting the right of parents to choose to arbitrate issues regarding custody and parenting time for their children.  In Fawzy v. Fawzy, decided July 1, 2009, the Supreme Court held that:

  1. Parents have the right to choose to arbitrate disputes over child custody and parenting time, as opposed to having them decided by a Judge.
  2. Any such agreement to arbitrate must be in writing or otherwise recorded in permanent form.
  3. The arbitration agreement must clearly establish that the parties were aware of their right to a judicial determination and that they have knowingly and voluntarily waived that right.
  4. The arbitration proceeding must be conducted with a full record and all documentary evidence introduced must be maintained; testimony must be recorded, and the arbitrator must issue findings of fact and conclusions of law explaining his award.
  5. Any arbitration award is subject to review under the narrow provisions of New Jersey’s Arbitration Act, except that if any party can establish that the award threatens harm to a child, the issues can be addressed de novo by the trial judge without regard to the arbitration award.

This is the first Appellate decision in the state determining that these child-related disputes can be arbitrated.

Needless to say, this procedural option presents an attractive alternative in many contested child custody/visitation cases.  Arbitration generally is less expensive, more expeditious and less emotionally draining than a trial in Court.  Litigants who are unable to resolve their child-related issues consensually should give careful consideration to the arbitration option before proceeding to litigate their claims in court.

Please feel free to call Todd M. Sahner, Esq. at (973) 232-0604 or MaryJane Dobbs, Esq. at (973) 232-0605 if you have any questions.  You may also contact Todd M. Sahner, Esq. and MaryJane Dobbs, Esq. via email at the following addresses: tmsahner@marcusbrodylaw.com and mjdobbs@marcusbrodylaw.com.