## Facts

- Divorcing spouses with two minor children agreed in open court to submit remaining issues, including child custody and parenting time, to binding arbitration.
- The trial judge explained the arbitrator’s decision would be final and not appealable; both parties confirmed they understood they were waiving a judicial determination.
- The arbitrator awarded joint legal custody, primary physical custody to the mother, and a detailed parenting-time schedule for the father.
- The father challenged the parenting-time provisions in court, arguing the result was not in the children’s best interests and that custody/parenting time could not be conclusively resolved by non-appealable arbitration.

## Issues

1. Whether parents may validly agree to submit child custody and parenting-time disputes to binding arbitration.
2. If permitted, what standard and scope of judicial review apply to such an arbitration award.
3. What procedural safeguards are required to ensure enforceable arbitration while preserving the court’s obligation to protect children.

## Decision

- The Supreme Court of New Jersey held that parents may agree to binding arbitration of custody and parenting-time disputes.
- The Court rejected routine de novo “best interests of the child” review of custody arbitration awards.
- Judicial review is governed primarily by the Uniform Arbitration Act’s limited vacatur/modification grounds, with an additional child-specific basis for intervention when the award threatens harm to the child.
- The Court required specific procedural conditions for enforceable arbitration of child-related issues, including a clear, informed waiver and a record sufficient for judicial review.
- The Court reversed the Appellate Division and remanded to determine compliance with the required safeguards and to apply the correct review standard.

## Legal Principles

- Parents’ constitutionally protected authority over child-rearing includes choosing arbitration as the forum for resolving custody and parenting-time disputes, subject to the State’s duty to protect children from serious harm.
- Courts may not conduct an independent “best interests” reassessment simply because the dispute involves children; review generally remains limited to statutory arbitration grounds (e.g., fraud, corruption, partiality, misconduct, exceeding powers).
- A court may vacate or modify a custody/parenting-time arbitration award on child-welfare grounds only upon a showing that the award threatens harm to the child.
- Arbitration of child custody or parenting time is valid only if accompanied by safeguards enabling meaningful review, including:
  - a written or otherwise recorded agreement reflecting a knowing and voluntary waiver of judicial determination, and
  - a record of the proceedings (documentary evidence and recorded testimony) plus written findings of fact and conclusions of law adequate to assess statutory grounds and potential harm.

## Conclusion

New Jersey allows binding arbitration of child custody and parenting time when parents knowingly waive a court determination and the process generates a reviewable record; courts then apply narrow statutory arbitration review, intervening on the merits only if the award threatens harm to the child.


Fawzy v. Fawzy, 973 A.2d 347 (N.J. 2009)