Child Custody – Is It Only The Courts That Can Decide?

The Long History of Child Custody Disputes

The New Jersey Courts have always determined that matters involving the best interests of children can only be determined by a Judge if the parties cannot come to an agreement. No third party has been allowed to make those determinations under the theory that it is a Superior Court Judge that stands in the shoes of parents if they cannot come to an agreement to determine what the best interests of the parties are. This has often resulted in long and arduous and very expensive custody battles which often consisted of dueling mental health professionals.

In yet another far reaching and cutting edge opinion by Justice Virginia Long of New Jersey Supreme Court in the matter of Fawzy v. Fawzy, Justice Long only a few years ago, determined that “the constitutionally protected right of parental autonomy includes the right of parents to choose the forum in which to resolve their disputes over child custody.” The holding of the Court has far reaching effects over the way attorneys can work with their clients to resolve custody and parenting time disputes. This may include binding arbitration which is a much expedited proceeding whereby the parties may introduce a broader range of evidence and information to an individual jointly agreed upon by the parties who will make the ultimate decision with regard to child custody, parenting time, and other issues surrounding children. However, the Court has not completely adopted a hands off approach. Even with arbitration, the New Jersey Supreme Court has concluded that the arbitration determination must be in writing or recorded and must establish that the parties are aware and having knowingly and voluntarily waived their rights to a judicial determination. In other words, the Court wants to be certain that the entry into arbitration and the understanding of the arbitration rules and any agreement that may result was understood by the parties in advance and they have agreed to be bound by it.

Likewise, a record of any evidence adduced during the proceedings must be kept, testimony must be recorded and the arbitrator must issue his or her findings of fact and conclusions of law. Rather than a Court reviewing any challenge to same, the arbitrators award is subject to review under the Arbitration Act under our New Jersey Statutes, in this case, N.J.S.A. 2A:23-B-1 to -32. Judicial review is also available if a party establishes that the award threatens harm to the child.

This is a tremendous movement forward on the part of the New Jersey Supreme Court recognizing the child custody disputes should have alternate methods of resolution as do matters of economics and other issues in a divorce proceeding.

I would urge that any time that there is a dispute about custody and parenting time which cannot be revolved by meetings between parties and counsel or mediation through the Court system, that parties with their counsel consider this process. It has the benefit of saving thousands of dollars, much time and should often result in a resolution just as fair and equitable as if determined by a Court.