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LAW AND THE FAMILY
ARBITRATION OF CUSTODY AND VISITATION DISPUTES
Joel R. Brandes and Carole L. Weidman
New York Law Journal
October 25, 1994
THROUGH CAREFUL ANALYSIS and thorough review the Court of Appeals has told
the people of this state that a provision in a matrimonial agreement to
arbitrate disputes concerning the amount of maintenance or child support is
valid and enforceable. [FN1]
The Court has not made clear, however, whether those seeking to arbitrate
custody and visitation disputes through agreement will prevail.
Last week Supreme Court Justice Lewis R. Friedman, in Stanley G. v. Eileen
G. [FN2] held that a provision in a divorce judgment, which incorporated and
merged a stipulation of settlement and arbitration award of a Jewish religious
court, a Beth Din, providing that the Supreme Court's jurisdiction to enforce
or modify the judgment was contingent on "the consent in writing of said
religious court," was inappropriate and unenforceable with regard to
matters of custody and visitation. In so doing the court rejected the
long-standing rule of the First Department and adopted the reasoning of the
Second Department.
Parental agreements covering the custody and visitation of their children
are written in sand. Under the parens patriae power and responsibility of the
court, [FN3] the existence of an agreement is at most only a single factor for
the court to use in determining custody and visitation. There is no finality
to a contract between parents regarding custody, because the parens patriae
power of courts over the custody of children transcends any such agreement.
Where the best interests of the child require an award of custody, contrary to
that set forth in an agreement, the provisions will be disregarded.
Children Not Parties to Agreements
Notably, children are not parties to parental agreements. Domestic
Relations Law (DRL) s240 imposes on courts the responsibility of awarding
custody and visitation as "justice requires, having regard to the
circumstances of the case and of the respective parties and to the best
interests of the child." That responsibility requires that in many, if
not most, instances, there be an evidentiary hearing on the issue of custody
and visitation, even when custody is uncontested. [FN4]
Earlier lower court cases rejected arbitration clauses and agreements
enforceable in controlling custody and visitation issues.
Not surprising is the decision of the First Department in Sheets v. Sheets,
[FN5] which is dedicated to letting parties control their own futures by
establishing the rule that arbitration provisions are not against public
policy and are enforceable, subject naturally to a court's authority check to
assure all is well and the results are in the best interests of the child.
In Sheets, in granting the wife's divorce, the Florida court sanctioned the
parties' 1962 separation agreement, which provided in Paragraph 3 that the
wife would have custody of the children, with visitation to the husband; for
consultation by the wife with the husband on all matters of importance
relating to the children's health, welfare and education; for notification to
the husband in the event of serious injury or illness to any child; and for
the encouragement of respect and love for both parents. The agreement provided
that "[i]f the parties cannot reach an agreement as to any matter within
the scope of Paragraph 3 *** the dispute shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association."
The husband served a demand for arbitration seeking, among other things,
damages for violation of the agreement with respect to visitation, with
respect to the secular and religious education of the children and as to a
claimed alienation of the children's affection for their father. He appealed
from an order staying arbitration of such demands.
The First Department, a proponent of arbitration, concluded that there
seemed to be "no clear and valid reason for denying the arbitration
process in the area of custody and the incidents thereto, i.e., choice of
schools, summer camps, medical and surgical expenses, trips and
vacations." It noted that the American Arbitration Association was
equipped to arbitrate marital disputes arising from separation agreements and
set out to define, in its lengthy opinion, albeit in dicta, "the proper
position to be taken by courts as to arbitration provisions in agreements
which affect custody and visitation of children."
Best Interests of Child
It established a two-stage process, stating:
Courts will, as a general rule, enforce an agreement between a husband and
wife regarding custody of children so long as the agreement is in the best
interests and welfare of the children. The inherent power of the courts to
safeguard the welfare of children would not, however, be dissipated by a
separation agreement that provided for settlement of custody disputes and
related matters by some arbitration tribunal. Necessarily, an award rendered
on a voluntary submission of any such disputes to arbitration would still be
subject, in a direct proceeding affecting the child alone, to the supervisory
power of the court in its capacity as parens patriae to the child.
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To the extent that such an award conflicted with the best interests of the
child, courts would treat it as a nullity insofar as the child is concerned,
irrespective of what binding effect it may have on the parents. An arbitration
award under such circumstances could no more infringe the paternal duty of the
court to guard the child's welfare, than a foreign decree of a court rendered
before the child became subject to our courts' jurisdiction. The controlling
factor would be, as always, what was for the best interests of the child; and
the provisions of any award could be challenged in court on that basis at the
instance of a parent, a grandparent, an interested relative, or the child
himself by a friend. The challenge might take the form of opposition to
confirmation of the award, of a cross application invoking the court's
paternal jurisdiction, or an independent summary proceeding.
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Hence, on any showing that a provision of an award might be adverse to the
best interests of a child, the court could take such action that was necessary
for the best interest of the child. Once the court's paternal jurisdiction is
invoked, it would examine into the matter, de novo, and in doing so could
utilize the proof adduced before the arbitration tribunal, could call for new
proof, or could employ a combination of both. The court could then determine
what was necessary for the best interest of the child.
With these caveats, the court stated that "submission of disputes in
custody and visitation matters to voluntary arbitration need no longer receive
general interdiction, and such procedure should be encouraged as a sound and
practical method for resolving such disputes."
That decision, while generally accepted, does not sit very well every
where, particularly in the Second Department, which has outright deviated from
the proposition. In Nestel v. Nestel [FN6] the Second Department found that a
general agreement to arbitrate custody matters was inappropriate, citing its
opinion in Agur v. Agur. [FN7] In Nestel, it disapproved "the policy of
some courts to enforce arbitration of less weighty aspects of custody, such as
visitation, choice of schools, summer camps and the like," citing Sheets
v. Sheets. It stated:
Such a procedure, subject to the check of de novo review by the courts if
it appears that the award may be adverse to the best interests of the child,
is certain to be wasteful of time and expense and result in a duplication of
effort. In short, a two-stage procedure as proposed in Sheets is bound to
frustrate the very purpose of submitting disputes to arbitration in the first
place, i.e., an expeditious determination.
Recently, in Glauber v. Glauber, [FN8] the Appellate Division, Second
Department, again held that agreements to arbitrate custody of children should
not be enforced by New York State Courts. The parties' 1985 stipulation of
settlement survived a divorce judgment granted that year, and the court
retained jurisdiction for purposes of enforcing the provisions contained in
the stipulation "to the extent permitted by law." The stipulation
provided, among other things, for child support, visitation and custody of the
parties minor child. It also provided that any disputes shall be brought
before a named Rabbi, whose decision shall be final. If he were unable to
decide the matter, then it was to be brought before another named Rabbi. If he
too, was unable to conclude the matter, each party was to pick a Dayan (judge)
in accordance with Jewish law. The two Dayans were then to pick a third Dayan
and the three judges were to decide the matter, with their decision to be
final.
Under the terms of the stipulation, the wife was to have custody until the
child reached the "age of education," no later than six years
old. Custody was then to revert to the husband. A few days following the
child's sixth birthday, the wife refused the husband's written custody demand
because she believed that her child's well-being would be jeopardized if she
acceded to the husband's demand. She ultimately moved in the Supreme Court for
permanent custody. The husband cross-moved for arbitration pursuant to Civil
Practice Law and Rules Article 75, pursuant to the arbitration clause of the
agreement.
Not for Arbiter
The Supreme Court directed the parties to proceed to arbitration. Temporary
custody remained with the wife. The matter was remitted to Supreme Court, by
the Appellate Division, for a determination of the issues of custody and
visitation. It stated that, absent a threshold infirmity, the broad
arbitration clause contained in the parties' agreement would subject custody
to arbitration and that the order of the Supreme Court should be affirmed
unless strong public policy dictated that custody determinations should not be
left to an arbitrator
The court went further to state that custody and visitation of children
should not be decided by an arbitrator because these subjects are so
interlaced with strong public policy considerations that they are beyond the
reach of the arbitrator's discretion and this subject, on its face, is
inappropriate for resolution by arbitration.
The court noted that DRL s70 and DRL s240 impose the responsibility on the
courts to make custody and visitation orders based on the best interests of
the child. Notwithstanding that custody agreements are, in the usual case, to
be given priority, the responsibility of the courts always supersedes whatever
bargain has been struck. The court must always make its own independent review
and findings and may award custody to one parent in the face of an agreement
granting custody to the other if the best interests of the child require it.
Concluding that a court cannot be bound by an agreement as to custody or
visitation and simultaneously act as parens patriae on behalf of the child, it
held that enforcing arbitration provisions such as those at bar would be
contrary to the foregoing authority because an agreement to arbitrate the
issue of custody is indistinguishable from an agreement to give custody and
the court's traditional power to protect the interests of children cannot
yield to the expectation of finality of arbitration awards.
In its decision the Second Department recognized that arbitration of
custody and visitation disputes had been referenced to with approval, in
dicta, in Sheets, and that it expressly disagreed with this approach in Nestel
and in Agur. It concluded in its decision that "It is now a matter of
some doubt that Sheets would be followed by the Appellate Division, First
Department," citing as authority for this proposition Harris v.
Iannaccone, [FN9] which cited Nestel, in dicta, for the proposition that
"child custody is an area found to be nonarbitrable."
In the end of the rule that has emerged is that while New York public
policy encourages arbitration, in custody as well as other disputes, the
ultimate issue of the child's best interests is not subject to arbitration and
will be determined by the court, either before or after an arbitration
proceeding.
FN1. Schneider v. Schneider (1966) 17 NY2d 123, 269 NYS2d 107, 216 NE2d
318. See also Egol v. Egol (1986) 68 NY2d 893, 508 NYS2d
935, 501 NE2d 584; Matter of Robinson, 296 N. Y. 778; Matter of Luttinger,
294 N. Y. 855.
FN2. New York Law Journal, 10-13-94, P.22, Col.6, Sup. Ct., NY Co.
FN3. See Finlay v. Finlay 240 NY 429.
FN4. See Araujo v. Araujo (1971, 1st Dept.) 38 App Div 2d 537, 327 NYS2d
217.
FN5. Sheets v. Sheets (1964, 1st Dept.) 22 App Div 2d 176, 254 NYS2d 320,
18 ALR3d 1257. See Perles, "The Effect of the 'Sheets' Case on Agreements
to Arbitrate Problems Involving Children," NYLJ, Jan. 25, 1965, p. 1,
cols. 4-5, p. 4, cols. 5-7.
FN6. 1972, 2d Dept., 38 AppDiv2d 942, 331 NYS2d 241.
FN7. Agur v. Agur (1969, 2d Dept.) 32 AppDiv2d 16, 298 NYS2d 772, app dismd
27 NY2d 643, 313 NYS2d 866, 261 NE2d 903 and app dismd 32 NY2d 703, 343 NYS2d
607, 296 NE2d 458.
FN8. 192 AD2d 94, 600 NYS2d 740 (2d Dept., 1993). See also Cohen v. Cohen,
195 AD2d 586, 600 NYS2d 996 (2d Dept., 1993), where the Second Department held
that disputes over custody and visitation are not subject to arbitration.
FN9. 107 AD2d 429, 487 NYS2d 562, aff'd 66 NY2d 728, 496 NYS2d 998, 487
NE2d 908.
Joel R. Brandes and Carole L. Weidman have law offices in New York City and
Garden City. They co-authored, with the late Doris Jonas Freed and Henry H.
Foster, Law and the Family, New York (Lawyers' Co-Operative Publishing Co.,
Rochester, N.Y.) Mr. Brandes and Ms. Weidman co-author the annual supplements.
