In recent years, arbitration has become an increasingly popular litigation alternative for matrimonial practitioners and their clients. Arbitration gives the parties control to choose the individual who will decide their case and cuts down significantly on the time and expense of litigating a case from start to finish. Especially today, where courts in nearly every vicinage have backed-up trial calendars and judges have no time to accommodate continuous trials, arbitration frees up the court docket and gives parties an expedited resolution to their case.

Twenty-five years ago, the Supreme Court in Faherty v. Faherty , 97 N.J. 99(1984), approved arbitration of family law matters, including alimony and child support. Recently, in Fawzy v. Fawzy, 199 N.J. 456 (2009), the Court expanded the holding in Faherty to provide that arbitration may also be utilized to resolve issues of child custody and parenting time. In a unanimous opinion (authored by Justice Virginia Long), the Court held that the constitutionally protected right of parental autonomy includes the right of parents to choose the forum in which to resolve their disputes over child custody and parenting time. In those cases where the parties agree to arbitrate custody and parenting time, the court will confirm the arbitrator’s award unless either party proves that harm would result to the child as a result of implementation of the arbitrator’s decision.

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