Johnson v. Johnson
9 A.3d 1003 (NJ 2010)

Facts:

  • David and Molly Johnson were married on October 26, 1994, and divorced on August 16, 2005.
    • Two children were born during the marriage.
  • Following the divorce, the parties encountered difficulties with the parenting schedule and thereafter consented to resolving those issues in arbitration.
  • Mr. J complained that Ms. was unreliable, while Ms. complained that Mr. was too rigid.
  • Nonetheless, the arbitrator concluded that both parties were decent, well-intentioned, non-pathological parents and that the children are positively developing in their care.
  • The arbitrator increased the amount of uninterrupted weekly time the children spent with Mr. Johnson, but extended the weekend and holiday time spent with Ms. Johnson.
  • This didn’t sit well with Ms. J.

History:

  • Ms. Johnson filed a motion for reconsideration of the entire decision or clarification of the extent of her vacation time custody.
    • The arbitrator reaffirmed.
  • Ms. Johnson then sought to have the arbitrator removed based on the decision in Fawzy.
    • In that case, the court held that parents have the right to choose arbitration to resolve their disputes over child custody and parenting time.
    • An arbitrator’s award is subject to judicial review if a party establishes that the award threatens harm to a child.
    • To ensure a basis on which to evaluate a claim of harm, the court required that a record of all documentary evidence be kept; testimony be recorded verbatim; and that an award, including findings of fact and conclusions of law, issue.
  • Here, the appellate division reversed because of the absence of a verbatim transcript.

Issues:
(1) Whether the arbitration record was sufficient, despite lack of a verbatim transcript, to permit review of arbitration award.
(2) Whether Ms. J mother’s contentions were sufficient to raise claim that arbitration award threatened harm to children, thus warranting judicial review.

Holdings:
(1) Yes.
(2) No.
Case reversed.

Reasoning:
(1) In this case, the arbitrator produced a complete record of all evidence he considered, a detailed recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion on reconsideration.

  • Where, as here, the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription.

(2) If there is a challenge to a child custody or parenting time arbitration award 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. However, if there is a challenge to a child custody or parenting time arbitration award and 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.

  • Mere disagreement with the arbitrator’s decision obviously will not satisfy the harm standard.
  • To the contrary, a party’s claim that the arbitrator granted custody to a parent with serious substance abuse issues or a debilitating mental illness could raise the specter of harm.
  • Here, neither party raised any real claim of unfitness, and the issue was always parenting style, not capacity.
  • Thus, this wasn’t even close to establishing harm to the child, thus the review is limited to the arbitration standards.

Rule: Parents have the right to choose arbitration to resolve their disputes over child custody and parenting time.
Rule: In respect of child-custody and parenting-time issues in arbitration:

  • A record of all documentary evidence shall be kept;
  • All testimony shall be recorded verbatim; and
  • The arbitrator shall state in writing or otherwise record his or her findings of fact and conclusions of law with a focus on the best-interests standard.

Rule: Where the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription.
Rule: An arbitrator’s award is subject to judicial review only if a party establishes that the award threatens harm to a child.