Arbitration for divorce-related disputes prior to the final judgment can be an efficient, cost-effective way to settle most pre-judgment issues.  Certain issues, however, may be better off tried in court; other issues must be brought before a judge as a matter of law.  One of the more confusing aspects of arbitration requirements is the issue of custody disputes, which are complicated as a general rule.  In many cases, it may be in everybody's best interests to go before the judge, but whether the laws require court intervention is another matter.  A thorough examination of this issue was made in 2009 in the New Jersey Supreme Court ruling of Fawzy v. Fawzy.  The case involved a divorcing couple who had agreed to binding arbitration for all issues related to their divorce proceedings.  The defendant, however, objected to arbitration when they disagreed on custody and parenting time issues, arguing that the courts had to step in order to prevent harm to the child. 

Per the law, the courts do have a duty to prevent harm to the child, but the Supreme Court's ruling stated that there were no circumstances in this case to warrant court intervention according to the existing laws.  New Jersey Court Rule 5:15 lists six categories of cases that can only be settled through arbitration upon consent from both parties: 1) the entry of a final judgment of divorce or annulment; 2) cases involving the Division of Child Protection and Permanency; 3) domestic violence actions; 4) juvenile delinquency cases; 5) family crisis situations; 6) adoption actions.  As you can see, these are very serious family law actions with far-reaching consequences for many parties, which is why either party has the right to proceed with litigation. 

In addition to a lack of qualifying circumstances, the court could not ignore the fact that both spouses had been fully counseled on their arbitration rights and legal options prior to agreeing on binding arbitration.  In fact, the process of agreeing to arbitration is quite thorough, involving an “Arbitration Questionnaire” that thoroughly lists the the requirements and legal implications of arbitration.  Thus, the courts concluded that there was no reason not to have the couple's custody dispute resolved via arbitration.  However, the ruling did stress the possibility of such disputes needing to be reviewed and modified by the courts.  With that in mind, the Supreme Court advised the need to keep a thorough record of all documentary evidence, for all testimony to be recorded verbatim, and for the arbitration award to state findings and facts that focus on the best interests standard, in accordance with statutory and case law.  Even with these guidelines, it's important to understand that divorcing spouses can agree to other methods of dispute resolution, such as mediation, during the course of the divorce.  Thus, it is highly recommended that you discuss all your available options with an experienced attorney.  For more information on pre-judgment dispute resolution, please speak with the attorneys of Villani & DeLuca, P.C.