Last year, in the Fawzy decision, the New Jersey Supreme Court put procedures in place approving parents’ ability to arbitrate child custody opinion.  This specifics of this decision was the subject of a prior blog at the time of the decision.  One of the procedural safeguards required by Fawzy was a verbatim record of the proceedings so that there could be meaningful review of the decision by a court.  Yesterday, the Supreme Court revisited this issue in the case of Johnson v. Johnson.  In May of this year, I previously blogged about this case though at that time, we all thought that the bigger issue for the court’s consideration was whether Fawzy could be retroactively applied.

In Johnson, there was no verbatim record as was required by Fawzy, for the simply reason that the parties had agreed that there was not going to be a verbatim record.  They did, however, agree that the arbitrator would provide detailed findings of fact.  In fact, the arbitrator did provide extremely detailed findings both in the initial opinion and upon a motion for reconsideration.  After Fawzy was decided, an appeal ensued and the arbitration award was set aside for no verbatim record. 

The Supreme Court in Johnson started by reminding us of what Fawzy requires with regard to an agreement to arbitrate:

must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1.
In addition, it must state in clear and unmistakable language: (1) that the parties
understand their entitlement to a judicial adjudication of their dispute and are
willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree
to those limitations; (3) that the parties have had sufficient time to consider the
implications of their decision to arbitrate; and (4) that the parties have entered into
the arbitration agreement freely and voluntarily, after due consideration of the
consequences of doing so.


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The Supreme Court has granted certification and will hear argument in the case of Johnson v. Johnson.    In essence the Supreme Court has agreed to decide whether retroactive application is warranted of its ruling in Fawzy v. Fawzy  that parents can arbitrate child custody issues if a thorough record is kept. We have blogged

Previously we blogged on alternate dispute resolution methods ("ADR") such as mediation and arbitration. "Collaborative Divorce" is another ADR method.

"Collaborative Divorce" is defined as  a form of alternative dispute resolution for divorcing couples where a  team approach is used to reach a settlement. Both parties to the divorce are supported by their lawyers; however,

Last week news broke the Jon and Kate Gossellin, stars of the Lifetime television program “Jon and Kate Plus Eight,” were divorced in Pennsylvania. Judge Arthur Tilson entered an Order making it official.  To read previous blog entries on this celebrity divorce click here.

While many news articles reported that the couple used an arbitrator, few actually differentiated or explained the roll of the arbitrator. Sometimes divorcing couples use an arbitrator to decide issues in a divorce rather than go to the Court. While in New Jersey only a Judge can enter an Order actually divorcing a couple – hence dissolving the marriage, an arbitrator can decide almost any other issue, including alimony, child support, equitable distribution, college expenses, graduate school costs, medical expenses, counsel fees and tax-related issues. (The only caveat is that both parties must agree that the arbitrator has the authority to decide the issue.)

In NJ when it comes to custody and parenting time arbitration, there are specific requirements for this process that our Supreme Court has set forth in the Fawzy v. Fawzy matter. To read prior blog entries on this case and arbitration, click here or here.


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Previously both Jennifer Millner Weisberg and I blogged on a highly publicized New Jersey family law case, Fawzy v. Fawzy.  To read my prior post on this case, click here.  To read Jennifer’s post, click here.

For those of you who may not be familiar with Fawzy, this matter involves parties who opted to participate in binding arbitration as to all outstanding issues in their matter, including a determination of custody and parenting time, as opposed to proceeding with a trial.

Alternate dispute resolution is another method by which parties who have outstanding legal issues between them can select a mutually agreeable individual to serve as a mediator and decide the issues, rather than sit through and bare the expense of an expensive and often lengthy trial.  Alternate dispute resolution methods, such as arbitration, are available in nearly every area of the law and not limited to family law matters. People prefer arbitration because it may resolve issues more expeditiously than otherwise having a trial.  In addition, the arbitration process can be more informal than deciding issues in a courtroom before a judge.  Our courts encourage arbitration as a substitute for litigation.  Arbitration conducted by an individual of the parties’ own choosing is often less antagonistic than litigation and may minimize the harmful effects of divorce litigation on a family.

In Faherty v. Faherty, 477 A.2d. 1257 (1984), the New Jersey courts approved the arbitration of alimony and child support issues.  So when the Fawzy’s decided to arbitrate the issues of custody and parenting time- what was the problem?


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On Tuesday, February 3, the New Jersey Supreme Court heard arguments on the Family Law case of Fawzy v. Fawzy. This case was originally reported by Sandra Fava of our Roseland office this past summer when the Appellate Division determined that a court did not have the ability to permit parents to submit to binding arbitration on the issue of custody. To read Sandra’s original post, click here.  To read the full text of the Appellate Division’s decision in the case, click here

The Supreme Court granted certification. Both sides offered excellent arguments for and against the issues.

In this case, Mr. and Mrs. Fawzy agreed, in the courthouse, and in front of a judge, to submit the issue of custody to an arbitrator.  As Sandra mentioned, the parties were scheduled for a trial date in early 2007.  When they appeared in Court on this date, they agreed to submit all issues in contest to an arbitrator for binding, final, non-appealable arbitration pursuant to this state’s statute governing arbitration (N.J.S.A. 2A:23B1 to 32).  They, along with their respective attorneys appeared before the judge that same day and placed this agreement on the record.  The judge clearly advised them that the arbitrator’s decision would be final and could not be changed.  The parties agreed and went forward. They went to a well respected arbitrator who specializes in family law. Subsequently, Mr. Fawzy, who did not like the way things were going, moved to vacate the arbitrator’s decision, contending that issues such as the custody of children could not be subject to arbitration. The Appellate Division agreed. 

 

But what of the future? Arbitration can proceed with the same formality as a court trial or in some cases, with a more relaxed structure. However, the process is something that is agreed to by the parties in advance order to insure fairness. In a nutshell, the strong public policy in New Jersey is such that the Courts favor settlements between parties through alternative dispute resolution, of which arbitration is one example. In arbitration, the parties agree to have an arbitrator, rather than a judge, decide issues. There are many instances other than the matrimonial context in which arbitration is utilized and has been for many years in New Jersey. There are laws concerning the use of arbitration. However, it is only in the relatively recent past that arbitration has been commonly used to resolve matrimonial issues. This is obviously due to the sensitive nature of family proceedings. At the current time, there is no statute which specifically governs arbitration in family cases.  Utilizing arbitration for custody seems to be the next logical step in alternative dispute resolution for matrimonial cases.

 

The central issue is whether a judge, who stand in a parens patriae, or protective role, can in effect delegate his or duty to make a determination as to custody to an arbitrator. There have been previous cases in which the courts have been prohibited from allowing a parenting coordinator from making decisions as to custody and parenting time. Is it right for  litigants to be able to agree to allow a third party other than a judge the authority to make a custody determination on these issues? There are certainly arguments for and against.


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