Trenton, NJ – Couples getting a divorce can decide who gets custody of their children outside of court through mediation, the state Supreme Court said today.
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The unanimous decision expands on a 1997 ruling by New Jersey’s highest court that lawyers acting as mediators can help couples resolve disputes over alimony.
“Just as parents ‘choose’ to decide issues of custody and parenting time among themselves without court intervention, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen,” wrote Justice Virginia Long, for the court.
A lower court previously ruled custody must be decided before a judge in court because those decisions can be appealed. Agreements made through a mediating lawyer are binding.
Couples who want to settle those issues outside of court in the future must fully understand how mediation works and be recorded through the process as they would be in court, the Supreme Court said.
Great for Batei Din, as the loser cannot go anymore for a second chance to court!
Yes, and no. Just a few troubling thoughts.
Sometimes a matter needs to be re-visited. In a divorce, often couples will agree to anything to “get it over with.” Sometimes, one agrees to something because he/she has no reason to disagree at the time of the divorce.
But, frequently, after the divorce, one or both get married. Those people they marry, whom they did not think about at the time they made their agreements, have needs, desires and wants also.
So, all of a sudden, what they agreed to do at the time of the divorce is no longer what they are willing to do now.
Sometimes, two chareidi people get divorced, and one marries a non-chareidi person, or G-d forbid, a gentile, or totally non-frum person, and wants to raise the children differently from what he/she first agreed to.
Or G-d forbid, one parent develops mental/behavioral problems, and becomes unfit to care for a child after they agreed to a 50/50 arrangement.
I will not debate those issues here, only wish to bring out that sometimes, there does arise situations where agreements must be changed or abrogated. This often required returning to court.
There may be other reasons entirely also, where issues must be revisited. Custody matters are not like money matters. There are human lives, Yiddishe neshomos, to consider, taking into consideration their spiritual, emotional and physical safety. In money matters it is fine to say, “Okay, we will settle with an arbitrator, save the money of the lawyers, and have a better outcome. We will live with the finality of the agreement.”
With children’s custody, we may not wish to be so secure in the finality of any such an agreement since things do change, and we wish to protect the kids.
Does this ruling eliminate the ability to go to court later on if the situation warrants it? Or are the kids stuck with the mistakes of the arbitration?
I’m a little troubled by the statement that says the agreement through a mediator is binding, because that sounds like arbitration and not mediation.
I just think it’s better for everyone if things can be settled calmly and without fighting, rancor, bitterness, etc. I don’t think this is a dream, either! Take the book, “Divorce Mediation from the Inside Out.” The subtitle calls it “A Mindful Approach to Divorce,” and it is. It describes a unique form of mediation that utilizes the services of expert attorney mediators, at a minimal cost to the client. The author, Ora Schwartzberg, is a mediation practitioner.