Arbitration and Child Custody and Parenting Time Issues
As Seen in the Town Topics, Princeton, NJ (March 2010)
Jan L. Bernstein, Esq.
During a divorce there is nothing more emotionally challenging and complex then resolving issues concerning child custody and parenting time. Frequently, divorcing parties submit their issues of custody and parenting time to the courts for resolution. In July 2009 the Supreme Court of New Jersey allowed parents the additional option of resolving their custody and parenting time issues through arbitration. At times, parents prefer submitting their issues to an arbitrator because of the flexibility they can enjoy in choosing the arbitrator versus a judge whom they cannot hand-pick. Another component of this flexibility is the ability to schedule your time with the arbitrator instead of being available at the court’s direction. Arbitration is a process by which the parties can resolve temporary and permanent custody and parenting time issues through motions and, ultimately if necessary, tried with a neutral third party fact-finder known as an arbitrator. At the conclusion of the hearing, the arbitrator(s) render a decision as to how the issues presented should be resolved. The right of appeal is limited, and must be negotiated “up front” in an arbitration agreement.
While parties are free to choose arbitration of their custody and parenting time issues, an agreement, in writing, is required. The agreement must clearly establish that the parties are aware of their rights to a judicial determination and have knowingly and voluntarily waived them. Accordingly, a person cannot be forced to sign an agreement to arbitrate, he/she must understand the terms of the agreement.
When a party seeks to challenge an arbitrator’s decision, the party must make an application to the court. The challenging party will request that the court “vacate” or modify the arbitrator’s award/decision. Vacate means to nullify or cancel; make void or invalidate. In essence, this means that if the court does vacate the arbitrator’s decision, the parties are no longer bound to it. In order to reach the court, the challenging party must demonstrate that harm to the child will result from the arbitrator’s award/decision. If there is a finding of harm, the court’s presumption in favor of the parent’s choice to arbitrate will be overcome and the court will decide what is in the child’s best interest. Accordingly, mere disagreement with the arbitrator’s decision is not enough to satisfy the harm standard, which is a higher burden then the usual “best interest” standard. The court is not looking to see whether or not the arbitrator’s decision is in a parent’s best interest. Rather, the court is looking for actual harm to the child before then applying the best interest standard as a basis for modification of the arbitration award.
In order to make a determination of whether the arbitrator’s decision will result in harm to the child, the New Jersey Supreme Court requires that all custody and parenting time issues resolved through arbitration must be accompanied by a “complete record.” A complete record requires a record of all documentary evidence, all testimony to be recorded verbatim and that the arbitrator states in writing his/her findings of fact and conclusions of law with a focus on the best interests standard. Why would the Court require this in arbitrations involving custody and parenting time but not require a record in other arbitrations? Because courts exercise heightened jurisdiction over matters involving children and are charged with a special requirement to protect children with a record. The court can accurately and completely evaluate a claim that an arbitrator’s award/decision threatens harm to the child and avoid a complete replay of the arbitration proceedings. Without a complete record, it is almost impossible for a court to understand what facts and conclusions of law guided the arbitrator’s decision-making and whether or not harm to the child exists therefrom.
In light of this requirement for a complete record in child custody and parenting time disputes, what should prospective parties consider before submitting their issues to arbitration? Although the impact of the new requirement has yet to be fully realized, many speculate that costs to parties will increase substantially if they choose to go to arbitration. Parties will likely have to pay for a court reporter out-of-pocket, which can be costly given the length of time hearing(s) can take. The record requirement converts this ordinarily informal proceeding into a more formal one even though one of the main reasons parties prefer arbitration is because that forum is considered less formal than a court proceeding. However, arbitration is efficient, private and conducted with a hand-chosen arbitrator.
Given the above considerations, whether parents choose to submit their child custody and/or parenting time disputes to arbitration is both an emotional and complex decision. To decide if arbitration of your custody and/or parenting time issues is right for you, a family law attorney will be able to guide you through your specific case to determine which path is appropriate for your particular situation.