## Facts

- Spouses litigated a divorce action with ancillary issues, including custody and visitation of their 14-year-old daughter.
- The parties agreed to submit all marital issues to a religious arbitration tribunal (a Bais Din).
- The Bais Din issued a written award granting the parties joint custody and visitation.
- The father moved in Supreme Court, Nassau County to confirm the arbitration award, including custody and visitation provisions.
- The mother sought sole legal custody, requested that the court ascertain the child’s wishes, and moved to hold the father in contempt for alleged violations of so-ordered stipulations.
- The trial court confirmed the custody and visitation portion of the award, denied the contempt motion, and entered a judgment awarding joint custody and visitation consistent with the award.
- The mother appealed from the custody/visitation confirmation order, the order denying contempt, and the judgment.

## Issues

1. Whether a court may confirm and enforce an arbitration award—issued by a religious tribunal—that determines child custody and visitation.
2. Whether the denial of the mother’s motion to hold the father in contempt should be reversed.
3. Whether the appeal from an interlocutory order confirming custody/visitation became academic once a final judgment incorporating those provisions was entered.

## Decision

- The appeal from the interlocutory order confirming custody and visitation was dismissed as academic because the final judgment superseded it.
- The judgment was reversed insofar as it confirmed and implemented the arbitration award’s custody and visitation provisions.
- The branch of the father’s motion seeking confirmation of the custody and visitation award was denied.
- The matter was remitted to Supreme Court, Nassau County for a hearing and determination of custody and visitation.
- Pending that hearing and determination, joint custody and visitation were to continue.
- The order denying the contempt motion was affirmed.

## Legal Principles

- Child custody and visitation disputes are not subject to private arbitration; a court may not confirm an arbitration award that fixes custody or visitation.
- Courts retain responsibility to determine custody and visitation based on the child’s best interests, requiring an independent judicial hearing and determination.
- An appeal from an interlocutory order may be dismissed as academic when a later final judgment grants the same relief and supersedes the order.
- Civil contempt generally requires a clear and unequivocal mandate, proof of disobedience that is willful, and prejudice to a right of a party; denial of contempt relief is reviewed for abuse of discretion.

## Conclusion

The appellate court held that custody and visitation cannot be determined by arbitration and therefore vacated the custody/visitation provisions derived from the religious tribunal’s award, remitting the matter for a best-interests hearing while leaving the denial of contempt relief intact and maintaining joint custody and visitation on an interim basis.


Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (App. Div. 2d Dep’t 2009)