Posted by: Stephanie Hunnell
July 10, 2009
Topic: Custody and Parenting Time

In the case of Fawzy v. Fawzy, the Supreme Court has determined that "within the constitutionally protected sphere of parental autonomy is the right of parents to choose the forum in which their disputes over child custody and rearing will be resolved". Justice Long wrote the opinion for the Court and held that within this sphere is a parents' right to submit the issue of custody and parenting time to arbitration. In doing so, the Court expanded the parameters of judicial review to include the narrow provisions of New Jersey Uniform Arbitration Act (N.J.S.A. 2A:23B-1 to 32), as well as to include instances where a party establishes that an arbitrator's award "threatens harm to the child." To be clear, the traditional "best interests" standard is not the standard for judicial review of an arbitration award. Only a showing of a threat of harm will warrant judicial infringement upon parents' fundamental rights to decide how to resolve disputes over custody and child rearing. An agreement to arbitrate must be in writing or recorded and the writing must establish that the parties are aware of and have knowingly and voluntarily waived their rights to a judicial determination. A record of documentary evidence adduced during the proceedings must be kept, testimony must be recorded, and the arbitrator must issue findings of fact and conclusions of law in respect of the award.

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