In a decision released for publication on June 16, 2008, the New Jersey Appellate Division held that parenting or custody issues can not be submitted to binding arbitration notwithstanding the parties agreement or even a Court Order. (Fawzy v Fawzy, Judge Simonelli)
In Fawzy the parties agreed, on the record and in open Court, to submit their parenting disagreement to binding arbitration. The parties agreement was then reduced ot a Court Order.
The husband, apparently believing that the arbitration was not proceeding according to his liking, applied to the Court to be released from his agreement to arbitrate the matter and, instead, to have his day in Court.
The Trial Court held Mr. Fawzy to his agreement to arbitrate, but the Appellate Division reversed.
The Appellate Division reasoned that submission of parenting issues to binding arbitration deprived the Court of its parens patrie jurisdiction, and that only the Court (not an arbitrator) can determine what is or is not in the "best interests" of the children.
In all due respect to a very learned panel of the Appellate Division, their decision, although, perhaps, technically correct based upon the time worn doctrine of parens patrie (the assumption that the State is the ultimate parent of all children with rights which are superior to and even exceed those the child’s parents) is contrary to public policy which dictates in favor of divorce litigants resolving their disagreements by alterative resolution techniques (mediation or arbitration).
Virtually all experienced Divorce Attorneys would concur that in cases involving custody or parenting issues litigation is often an ineffective means of resolving the issues. It is not uncommon for competent counsel to advise their clients that such matters do not belong in the Court system and should be resolved between the parties and by alternate means. The Fawzy case could certainly be taken a setback to the mediation and arbitration process which is so desperately needed in the Family Courts.
There are any number of very experienced Arbitrators in new Jersey. Some are extremely competent practicing Divorce Attorneys. Some are experienced mental health professionals. Many have served as Family Court Judges, Appellate Judges or even Supreme Court Justices.
Many have extensive background, understanding and training in matters involving the "best interests" of children.
For the Appellate Division to apparently assume that only a sitting Family Court Judge (even one who has little or no experience or background in such matters) can fulfill the State’s Parens Patire responsibility of protecting the best interests of the State’s children is, at best, premised upon little more than the assumption that a black robe vests the wearer with a innate understanding that can not be delegated to competent counsel, a skilled arbitrator or even well meaning parents seeking to avoid the emotional trauma and cost of litigation.