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These days divorce proceedings often involve alternative dispute resolution. Arbitration or mediation can be available in lieu of court proceedings, can be mandatory steps in the divorce process, or can be used to decide specific issues within a divorce. A growing number of states are facing the question of whether decisions about child custody and parental visitation can be decided through binding arbitration. Today, New Jersey became the latest state to answer yes.
Despite all the upsides to alternative dispute resolution, one arguable downside can be that it's often extremely difficult to challenge the results of a binding arbitration. This means that the parties opting to resolve divorce issues through binding arbitration rather than in court can't appeal the arbitrator's decision to the same extent that they would be able to appeal a court decision.
Of all divorce related decisions, custody awards can be the most hotly contested, and the most likely to be appealed. So, should parents be allowed to settle these issues outside the range of court challenge?
Today, in its unanimous decision, the New Jersey Supreme Court said yes. According to the court's opinion, it joins the majority of states that have faced the question, including Colorado, Michigan and Pennsylvania.
The court held that parents' rights to freely raise their children without undue judicial interference mean that parents can agree to arbitrate custody battles. It carved out an exception where the court can step in if a case is made that the arbitration decision poses a threat of harm to the child.
Couples wishing to use arbitration to settle custody (or any other issues), should pay strict attention to the reason why the court held that this particular couple's arbitration could not stand -- they didn't have a written agreement to arbitrate. Under New Jersey law (as well as many other states), for an arbitration to be binding, the parties must agree to arbitration voluntarily and with knowledge of the rights to judicial review they are waiving. As the court made clear for New Jersey, the agreement must be in writing.
States can also have special rules for the arbitration of custody and visitation disputes. As announced today, New Jersey now requires arbitrators of custody and visitation cases to keep a record of all documentary evidence. Additionally, all testimony must be recorded verbatim, and the arbitrator must record findings of fact and conclusions of law with a focus on the best-interests of the child.
While properly agreed and documented arbitrations can avoid almost all court challenges, courts can throw out arbitration decisions that fail to meet these heightened evidentiary standards.