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Has The Door Swung Too Far: An Analysis Of The Supreme Court’s Decision In Johnson


Charles F. Vuotto, Jr.

            Readers of this respected publication will note a number of columns issued by this author espousing the benefits of arbitration.[i]  There is no question that it is the policy of this State to permit matrimonial litigants the opportunity to arbitrate all family law issues.  There is also no question that this is a sound policy.  However, a question arises regarding the Supreme Court’s recent decision in Johnson[ii]: have the procedures associated with arbitrating family law matters become too informal or too relaxed?   It now appears that a mere custody evaluation can be elevated to the status of arbitration.  A summary of Johnson is necessary to understand the potential problem.

The parties were married October 26, 1994.  Two children were born of the marriage, ages six and four at the time of the arbitration at issue.   The parties’ Final Judgment of Divorce incorporated a Matrimonial Settlement Agreement that provided joint legal custody, with Mr. Johnson as the residential parent.  The parties agreed that Ms. Johnson would have the children from Tuesday evening until Wednesday evening, Thursday after school until Friday evening, and alternate weekends from Friday until Sunday evening. [iii]  Thereafter, the parties had problems with the parenting scheduled and sought arbitration.  The parties executed an arbitration agreement wherein they agreed to arbitrate their custody dispute in accordance with the Alternative Procedure for Dispute Resolution Act (APDRA), [iv] with Mark White, Ph.D., serving as the arbitrator.  Summarizing the essential aspects of the agreement:

·        Dr. White would meet with both parties and counsel as many times as he deemed necessary.

·         Each party was to submit a position statement for Dr. White’s review.

·        Dr. White would observe the parties’ children in the presence of the parties.

·        Without the taking of formal testimony, Dr. White would render a decision to resolve the parties’ parenting and scheduling issues.  

·        No formal arbitration proceeding was anticipated, although Dr. White had the authority to require such formal proceedings at his discretion.

·        A decision by Dr. White would be based on findings of relevant material facts and legal determinations, in accordance with the law of New Jersey.[v] 

·        Any appeal to the trial court was limited to whether Dr. White properly applied the law to the factual findings and issues presented for resolution.[vi] 

·        There would be no transcript of the proceedings, as the findings of Dr. White would constitute the record, as supplemented by the written statements of the parties submitted prior to arbitration.

·        Dr. White would create a scheduling calendar, with the intent to keep future parenting time disputes to a minimum.

·        Testimony outside a party’s or counsel’s presence would not constitute grounds for reversing an award.

·        Both parties waived their right to a trial on the merits and preserved the right to appeal in accordance with the APDRA.[vii]

In accordance with the agreement, Dr. White conducted multiple interviews with Mr. Johnson, Ms. Johnson, Mr. Johnson’s new wife, the parties’ children, and a social worker who had previously counseled the parties.  Dr. White also observed the children in both home settings and reviewed their school records.[viii]  The process occurred over several months, ending with Dr. White submitting an award wherein he reached the following determinations:

·        Both parties were well intentioned parents and the children were developing positively with both parents.

·        Ms. Johnson needed to accept responsibility for leaving the marriage.

·        Mr. Johnson needed to resolve his anger towards Ms. Johnson over the divorce.

·        The children were too young for the current parenting time transitions given the tension between the parties.

·        Ms. Johnson’s parenting time would be expanded to include Sunday overnights, while her weekly visitation would be limited to overnights on Wednesday only.  In order to compensate the loss of parenting time, Dr. White directed that Ms. Johnson have the majority of long weekends and additional parenting time during school vacations.

·        Dr. White also referred Ms. Johnson to a neuropsychologist for an evaluation for Attention Deficit  Hyperactivity Disorder, and also referred Mr. Johnson to counseling to deal with has emotions related to the divorce.

·        After Ms. Johnson underwent her evaluation, her request to extend parenting time could be reconsidered.

·        There could be future meetings between Dr. White and the parties to consider further modification. [ix]

Ms. Johnson filed a motion for reconsideration with Dr. White, which was denied by Dr. White, who issued a decision reaffirming his prior conclusions.  As part of his decision, Dr. White delayed implementation of the new parenting schedule due to his finding that a change in the schedule late in the school year was not in the children’s best interest.[x]

Ms. Johnson filed an application with the trial court to remove Dr. White based on the Appellate Decision of Fawzy[xi]wherein the court prohibited arbitration of custody matters.   Judge Coogan confirmed the award after a hearing. Ms. Johnson appealed.

In the midst of the above, the Supreme Court issued its decision in Fawzy that permitted arbitration of custody matters.[xii] Relying on the Supreme Court’s decision, the appellate panel reversed Judge Coogan’s decision that confirmed Dr. White’s award, and remanded the matter for a plenary hearing because the procedural requirements dictated in Fawzy were not satisfied[xiii]. The appellate panel stressed that there was no verbatim record of the proceedings as required by Fawzy, and, as a result of the absence of such a record, it could not evaluate the threat of harm to the children nor confirm the award. The appellate panel refused to distinguish the case on grounds that the parties arbitrated pursuant to the APDRA, rather than the Arbitration Act[xiv] at issue inFawzy, holding that the law of Fawzy applied with equal force to both Acts.

Mr. Johnson filed a petition for certification, which was granted.   The Court began its decision with a review of Fawzy.[xv]  Next, the Court turned to Mr. Johnson’s argument that Fawzy was inapplicable to matters arbitrated pursuant to the APDRA.  Disagreeing with Mr. Johnson, the Court determined that the law of Fawzy applied with equal force regardless of the statute employed by the parties.[xvi]  This author views this conclusion as logical and sound.

Finding Fawzy applicable, the Court examined whether the parties’ arbitration met the standards required by Fawzy.  The Court noted that unlike the arbitration at issue in Fawzy where there was no record whatsoever, there was an adequate record of the arbitration at issue in the case at bar.  Specifically, the Court determined that a verbatim record was not necessary, since Dr. White gave “a complete recitation of what the parties told him and what he heard and saw during his observations.”  [xvii]The Court further found that Dr. White’s opinions “were painstakingly detailed”.[xviii]  The Court stressed:

In the final analysis, whether an arbitration is conducted under the Arbitration Act or APDRA is not the issue of consequence. What matters is the state of the record. Obviously, a verbatim transcript of a trial-type hearing will satisfy Fawzy, assuming the other requirements of that case are met. However, where, as here, the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription. It goes without saying that it would behoove any arbitrator tasked with resolving a child custody or parenting-time issue to prepare a record, at least as detailed as the one we have approved today. Such preparation will avoid a judicial replay of the entire matter in the event of a substantial claim of harm.[xix]


Lastly, the Court considered Mr. Johnson’s argument that Ms. Johnson’s claim of harm to the children was insufficient to warrantjudicial review.  Agreeing with Mr. Johnson, the Court determined that neither party had “raised any real claim of parental unfitness”, and that the issue between the parties “was always parenting style, not capacity, and the arbitrator’s commission was to create a schedule that would minimize conflicts and problems in the face of such different parenting styles.”[xx]  Declaring the award to be nothing more than a “tweaking” of the parties’ already existing parenting time schedule, the Court determined that the claim of harm did “not begin to approach a showing of harm sufficient to warrant judicial review beyond what is provided in the APDRA.[xxi]

      Based on the foregoing, the Court reversed the judgment of the Appellate Division and reinstated the Order of Judge Coogan confirming the Award.

            This author does not disagree with the Supreme Court’s conclusion that the requirements of Fawzy apply with equal force to arbitrations conducted under either the Arbitration Act or the APDRA.  This author is, however, weary of relaxing the requirement of a verbatim record and substituting, in its place, the arbitrator giving “a complete recitation of what the parties told him and what he heard and saw during his observations.”  That, however, is not the thrust of this column.

The possible problem is one not raised by either party in the case or any court.  The issue of some concern is that there was no arbitration!  The Fawzy requirements are in the context of “arbitration,” not a custody evaluation substituting for an arbitration hearing.  Although Dr. White may have conducted a perfectly executed custody evaluation, which was compliant with all psychological or other applicable guidelines, he did not conduct an arbitration.

According to Black’s Law Dictionary, “arbitration” is defined as follows:

The reference of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing at which both parties have an opportunity to be heard.[xxii]

            The definition of arbitration is also found in various reported decisions.  For example, the Supreme Court case of Levine v. Wiss & Co.[xxiii],  defines arbitration as “a quasi-judicial proceeding, with hearings, notice of hearings, oaths of arbitrators and oaths of witnesses”, distinguishable from expert evaluations (appraisals in particular) wherein the expert “need hold no formal hearings so long as both sides are given an opportunity to state their positions.”

            The Appellate Division has also held that issues of custody and parenting time should not be deferred to third parties, such as parenting coordinators, since the threat of harm to the child in such disputes warrants full adjudication.[xxiv]  Isn’t that exactly what the Johnsons did?

            What happened in Johnson was not arbitration.  This was simply an opinion by a forensic expert, which opinion was to be adopted as final.  There was no testimony or presentation of evidence in the traditional sense, or any opportunity to cross-examine witnesses. 


Although, unlike the Arbitration Act, the APDRA  permits parties to waive the requirement of a hearing, presentation of evidence and cross examination of witnesses,[xxv] such waivers should not be permitted in arbitration involving custody and time parenting.  The Supreme Court in Fawzy established an extra layer of procedural safeguards necessary in order to balance the Court’sparens patraie authority to protect children against a parent’s autonomy to resolve disputes through arbitration.  A strong argument can be made that allowing the procedural safeguards mandated by Fawzy to be waived by the parties would permit parents to circumvent the very procedural requirements determined by our Supreme Court to be indispensible when arbitrating custody and parenting time matters; a result clearly contrary to the express language of Fawzy.

            Although this author is fully supportive of the utilization of arbitration to resolve all family law issues including custody and parenting time, such a position is premised upon the process occurring in the traditional structure of an arbitration hearing.  There is little doubt that our Supreme Court had every good intention in rendering its decision in Johnson as it did when rendering its past decisions in Faherty[xxvi] and Fawzy.[xxvii]   However, in its decision in Johnson, there is a distinct possibility that the process has been relaxed a bit too much.  Such relaxation may create a slippery slope leading to further erosion, and possible eradication, of the procedural safeguards enacted by the arbitration statutes and expanded upon by the Supreme Court in Faherty and Fawzy to protect children involved in custody arbitration.  One such example is the recent case of N.H. v. H.H,.[xxviii]  wherein the parties, both represented by counsel, entered into a matrimonial settlement agreement that bound them to the ultimate recommendations of a pending custody and parenting time evaluation.  On appeal, the court confirmed the parties’ agreement as acceptable “arbitration” of custody matters pursuant to Fawzy and Johnson, despite the fact that the parties’ agreement made no reference to arbitration[xxix].  Such disregard for the arbitration process and the procedural safeguards established by Fawzy is, perhaps, a relaxation of the process that threatens the very parens patriae obligations of the courts of this State.

[i] See Chair’s column entitled Family Law Arbitration Statute – It’s Time Has Come, New Jersey Family Lawyer, Volume 30, #2 (November 2009); and Editor-in-Chief’s column entitled Equal Protection for Arbitration, New Jersey Family Lawyer, Volume 31, #2 (October 2010)

[ii] Johnson v. Johnson 2010 WL 5018581 (N.J.).

[iii] Johnson, 2010 WL at 1.

[iv] N.J.S.A. 2A:23A-1, et. seq.

[v] Query: How does a mental health expert “apply the law?”  Although not the focus of the within column, some of our colleagues have openly questioned whether an expert – mental health, financial or otherwise – is able to apply the law in rendering a decision.

[vi] Ibid.

[vii] Johnson, 2010 WL at 2-3.

[viii] Id. at 3.

[ix] Id. at 4-5.

[x] Id. at 6.

[xi] Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div. 2008).

[xii] Fawzy v. Fawzy, 199 N.J. 456 (2009).


[xiv] N.J.S.A. 2A:23B-1, et seq.

[xv] The Johnson Court summarized the required procedure of Fawzy, as follows: 

As a matter of practice, Fawzy plays out this way: When a child custody or parenting time arbitration award issues, one party will ordinarily move for confirmation. If there is no challenge, the award will be confirmed. If there is a challenge that does not implicate harm to the child, the award is subject to review under the limited standards in the relevant arbitration statute or as agreed by the parties. If a party advances the claim that the arbitration award will harm the child, the trial judge must determine whether a prima facie case has been established. In other words, is there evidence which if not controverted, would prove harm? If that question is answered in the negative, for example, where a claim of harm is insubstantial or frivolous (e.g., not enough summer vacation), the only review available will be that provided in the relevant arbitration act or as otherwise agreed. If, on the other hand, the claim is one that, if proved, would implicate harm to the child, the judge must determine if the arbitration record is an adequate basis for review. If it is, the judge will evaluate the harm claim and, if there is a finding of harm, the parents’ choice of arbitration will be overcome and it will fall to the judge to decide what is in the children’s best interests. If the arbitration record is insufficient, the judge will be required to conduct a plenary hearing. That is the backdrop for our inquiry.

Johnson, 2010 WL at 9.

[xvi] Johnson, 2010 WL at 10.

[xvii] Id. at 10.

[xviii] Id. at 10.

[xix] Id. at 10.

[xx] Id. at 11.

[xxi] Id. at 11.

[xxii] Black’s Law Dictionary 96 (5th ed. 1979).

[xxiii] Levine v. Wiss & Co., 97 N.J. 242, 249 (1984) (quoting Elberon Bathing Co., Inc. v. Ambassador Ins. Co., Inc., 71 N.J. 1, 19 (1978)).

[xxiv] Parish v. Parish, 412 N.J. Super. 39, 52 (App. Div. 2010).

[xxv] N.J.S.A. 2A:23A-12(g)(2).

[xxvi] Faherty v. Faherty, 97 N.J. 99 (1984).

[xxvii] Fawzy v. Fawzy, 199 N.J. 456 (2009).

[xxviii] 2011 WL 341261 (N.J.Super.A.D.)

[xxix] Id. at 33.

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