Figure in shape of people and wooden gavel on light table. Family law concept

In my last blog post, I reviewed the requirements for parties to submit their marital disputes to Bais Din under New Jersey law, which is provided for under New Jersey Court Rule 5:1-5(b).

However, special considerations are contained in Rule 5:1-5(b) for arbitrated custody and parenting time matters.

First, additional provisions must be present in any agreement to arbitrate custody or child support disputes, as follows:

(B) …in all family proceedings involving child-custody and parenting-time issues, the Agreement or Consent Order shall provide that:

(i) a record of all documentary evidence shall be kept;

(ii) all testimony shall be recorded verbatim; and

(iii) the award shall state, in writing, findings of fact and conclusions of law with a focus on the best-interests of the child standard.

(C) Further, in all family proceedings involving child support issues, the Agreement or Consent Order shall provide that the award shall state, in writing, findings of fact and conclusions of law with a focus on the best-interests standard, and consistent with R. 5:6A and Rules Appendix IX.

Case law provides additional clarification on these issues. In 2009, in Fawzy v. Fawzy, the New Jersey Supreme Court first authorized the use of arbitration proceedings for the resolution of custody matters in family court. The Fawzy court recognized the benefits of arbitration in the family law setting and, in particular, the potential to “minimize the harmful effects of divorce litigation on both children and parents.” In ruling, the Court reaffirmed the constitutional right to parental autonomy in child-rearing:

Deference to parental autonomy means that the State does not second-guess parental decision making or interfere with the shared opinion of parents regarding how a child should be raised. Nor does it impose its own notion of a child’s best interests on a family. Rather, the State permits to stand unchallenged parental judgments that it might not have made or that could be characterized as unwise. That is because parental autonomy includes the “freedom to decide wrongly.”

At the same time, the Fawzy Court recognized that “[t]he right of parents to the care and custody of their children is not absolute,” and that “the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child.” 

As the Court said in Moriarty v. Bradt, “interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child.”  Indeed, that harm standard “is a constitutional necessity because a parent’s right to family privacy and autonomy are at issue.” 

In short, potential harm to a child is the constitutional imperative that allows the State to intervene into the otherwise private and protected realm of parent-child relations. With that as a backdrop, the Court concluded that

the bundle of rights that the notion of parental autonomy sweeps in includes the right to decide how issues of custody and parenting time will be resolved. Indeed, we have no hesitation in concluding that, just as parents “choose” to decide issues of custody and parenting time among themselves without court intervention, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen.

Procedurally, a party aggrieved by an arbitrator’s award regarding custody or parenting time must move pursuant to the Arbitration Act (N.J.S.A. 2A:23B–23, 24) to vacate or modify the award on the basis of harm to the child. Such directive clarifying the “harm” standard in Fawzy was as follows:

Mere disagreement with the arbitrator’s decision obviously will not satisfy the harm standard. The threat of harm is a significantly higher burden than a best-interests analysis. 

Although each case is unique and fact intensive, by way of example, in a case of two fit parents, a party’s challenge to an arbitrator’s custody award because she would be “better” is not a claim of harm. Nor will the contention that a particular parenting-time schedule did not include enough summer vacation time be sufficient to pass muster. 

To the contrary, a party’s claim that the arbitrator granted custody to a parent with serious substance abuse issues or a debilitating mental illness could raise the specter of harm. Obviously, evidential support establishing a prima facie case of harm will be required in order to trigger a hearing. Where the hearing yields a finding of harm, the court must set aside the arbitration award and decide the case anew, using the best-interests test.

While custody arbitrations are permitted under New Jersey law, one should think critically about whether to bring their custody case to a Bais Din for resolution. In that regard, you should specifically consider the following:

  1. Do you know and trust the Dayanim? If you agree to arbitration, you are putting your children’s future into the hands of a collective of three rabbis, who may or may not have the necessary training or qualifications to make reasoned decisions regarding your children. Care should be taken to scrutinize the backgrounds, track records, and disposition of each Dayan that is proposed or selected.
  2. Gender. Consider how your gender and the gender of your children could sway Dayanim in favor of giving custody to a mother over a father and vice versa.
  3. You may not have viable recourse for review in court. If you disagree with the Bais Din’s decision, a civil  court will not review the matter to determine if it thinks the custody decision right or wrong. Rather, a civil court will only upend a decision made in Bais Din if it causes harm to the children. This is a high burden that not every decision a Dayan makes will overcome.
  4. Breadth of custody arbitrations. You may or may not realize it, but if you give arbitrators full authority to make decisions about your client, they could possibly make a decision that takes custody away from you, temporarily or otherwise. To put this conundrum in better context: do you want to give a private citizen the ability to potentially take your child away from you, with your only option for redress available only if there is demonstrated harm in that decision? Because arbitration is a creature of contract, rather than a government-created process (like courts), you can and should specify in your Agreement to Arbitrate how far the arbitrators can go in their decisions relative to custody.

My next post will focus on the prohibition against an arbitrator in custody matters taking on certain “dual” roles that would ultimately disqualify them from serving in a fact-trying role.


Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or