In Fawzy, the NJ Supreme Court decided, for the first time, that child custody and parenting time disputes may be resolved by parents using binding arbitration under New Jersey law, subject to protective tools such as a record of the arbitration proceedings and a written and reasoned award stating the basis for the decision. If a party is able to show the threat of actual harm to a child by the arbitral decision, then the trial judge has the power to overturn the arbitrator’s award and decide the case anew. If no such harm is shown, then custody/parenting time arbitration decisions shall be upheld by the trial court, subject only to limited appeal rights granted to all arbitration parties by statute. This is a major step forward for parties who wish to avoid lengthy, expensive, public court processes in favor of purely private dispute resolution. Parties also may decide on a two step dispute resolution process, first by mediating their disputes with a third party facilitator who does not decide the outcome, but rather helps the parties develop an outcome they can both live with, and then by binding arbitration of any remaining issues. Mediation and arbitration may be used to resolve all issues underlying a separation and divorce, namely child custody/parenting time, removal of a child from the state, child support, alimony, division of property and debts, and allocation of counsel fees and costs between the parties.
Hanan M. Isaacs coached both appellate counsel before their oral arguments in the Supreme Court, based on his unique knowledge of NJ arbitration law and public policy, as well as of family law.