On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-595-06H.
The opinion of the court was delivered by: Simonelli, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Simonelli.
Defendant Samih Fawzy appeals from the May 14, 2007 amended judgment of divorce, which confirmed and enforced an arbitration award of primary physical custody of the parties' children to plaintiff Christine Saba Fawzy, and parenting time to defendant. The primary issue in this appeal is whether parties in a matrimonial action can agree to binding, non-appealable arbitration of child custody and parenting time issues. We conclude that such an agreement violates the court's parens patriae obligation to protect the best interests of the children and is void as a matter of law.
Plaintiff and defendant were married on September 28, 1991. They have two children: A.F.*fn1 , born on February 8, 1996, and R.F., born on June 2, 1997. On September 13, 2005, plaintiff filed a complaint for divorce.
The parties appeared for trial on January 22, 2007. After discussing the matter for several hours, the parties agreed to submit all issues, including custody and parenting time, to binding, final, non-appealable arbitration pursuant to N.J.S.A. 2A:24-1 to -11,*fn2 and to have Leonard R. Busch, Esq. (Busch) serve as both arbitrator and guardian ad litem (GAL).*fn3 Prior to placing the agreement on the record, the trial judge warned the parties that the arbitrator's decision would be final and could not be appealed or changed except for a change in circumstances relating to child support and alimony. The parties, under oath, placed their agreement on the record.
A judgment of divorce was entered on March 6, 2007, granting the divorce and ordering the parties to attend binding arbitration. On March 14, 2007, the parties' attorneys signed an interim arbitration order, setting forth details regarding the arbitration process.*fn4 On March 14, 19, 20 and 22, 2007, Busch heard testimony on the custody and parenting time issues.
Apparently sensing the arbitration was not proceeding in his favor, on or about March 28, 2007, defendant filed an order to show cause, seeking to restrain Busch from making a custody or parenting time award. Defendant claimed he felt "extremely pressured and under duress" when he agreed to the arbitration, and argued that custody and parenting time issues could not be arbitrated as a matter of law. Defendant requested a plenary hearing. The trial judge denied the application.
On April 4, 2007, Busch issued a custody and parenting time award. The arbitration continued with respect to the remaining financial issues. Defendant then retained new counsel, who filed another order to show cause to vacate the arbitration award, to disqualify Busch, to restrain Busch from any further participation, to require a de novo review of the award, and to stay the award pending appeal. The trial judge denied the application and entered an amended judgment of divorce on May 14, 2007, confirming and enforcing the award, and ordering the parties to comply with its terms. This appeal followed.*fn5
Defendant does not contend that his children are at risk as a result of the award, or that the award is against their best interests. Rather, he argues that the parties cannot bargain away the court's obligation to review the best interests of the children by agreeing to binding arbitration of custody issues. Although we are troubled by defendant's failure to show the award harms his children's safety, happiness, or physical, mental or moral welfare, we agree that parties in a ...