As discussed in Part I, the party taking issue with the arbitration would ask the court to “vacate” or toss out the decision stemming from the problematic arbitration.

Unlike the statutory grounds in New Jersey to vacate an arbitration award which deal with defects in the conduct surrounding the arbitration itself and/or arbitrators themselves, when custody is an issue, the focus turns to the award itself.

As stated in Fawzy v. Fawzy, which was the decision first permitting custody arbitrations in New Jersey, “the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child.” 

Fawzy bestowed upon a court an obligation to intervene and correct an arbitrated custody determination only if it will cause “harm” to a child.

However, this should not be mistaken for a chance to take a “second bite at the apple” for someone who is dissatisfied with an arbitrator’s award. Nor should it be mistaken for a court’s ability to review a case under the ubiquitous “best interests of the child” standard.

As Fawzy explained: “[t]he threat of harm is a significantly higher burden than a best-interests analysis.”

The “harm” standard is described as follows in Fawzy:

Mere disagreement with the arbitrator’s decision obviously will not satisfy the harm standard. The threat of harm is a significantly higher burden than a best-interests analysis. Although each case is unique and fact intensive, by way of example, in a case of two fit parents, a party’s challenge to an arbitrator’s custody award because she would be “better” is not a claim of harm. Nor will the contention that a particular parenting-time schedule did not include enough summer vacation time be sufficient to pass muster. To the contrary, a party’s claim that the arbitrator granted custody to a parent with serious substance abuse issues or a debilitating mental illness could raise the specter of harm. 

If this “harm” standard is met, the court must set aside the arbitration award and decide the case anew, using the best-interests test.

The takeaway: if a custody decision is harmful to your child, you have grounds to seek the assistance of the court. If not, you are bound by the arbitrator’s decision, even if you do not agree with it.

It is for that reason that you should seriously consider the following before agreeing to arbitrate custody:

1. The parameters of the authority given to an arbitrator: Are you comfortable with the arbitrator making all decisions relative to custody and parenting time, or do you want to limit the decision to a specific custody or parenting time issue – i.e. holidays, vacations, etc.
2. Consider what professionals you wish the arbitrator to rely on: Do you want the arbitrators making a custody decision with or without a full forensic custody evaluation?
3. Set forth the particular standard utilized that the arbitrator must be bound by: Some familiar Agreements to Arbitrate use “halacha” or Jewish law as the guidepost for custody decisions. That is a somewhat amorphous standard that can be very hard to pin down. Consider designating New Jersey’s “best interests of the child” standard in your Agreements to Arbitrate.
4. Think about designating an appellate arbitrator to review the case for abuse of discretion: A finding of harm is the primary way to vacate an arbitrated custody determination (in addition to the statutory grounds). However, parties can designate another mutually agreed upon arbitrator to use a different standard of review. Remember, arbitration is aa creature of contract, so you can tailor this process to your family’s specific needs, provided the other party agrees.
5. Know your arbitrators in advance and name then in your Agreement to Arbitrate: You are placing your future in the hands of three rabbanim who are not familiar with you or your family, and may not have specific training in custody, child development, etc.  Know who your arbitrators are and ask around about their track records with custody decisions before signing on the dotted line.

As always, “an ounce of prevention is worth a pound of cure” and the best you should have an attorney review any agreement before it is signed.

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