NJ & CT News

NEW JERSEY

Arbitration Records: Should New Requirements Apply to Pre-Fawzy Cases?

New Jersey's Supreme Court heard arguments Sept. 28 concerning whether pipeline retroactivity should apply to its important ruling last year in Fawzy v. Fawzy, 199 N.J. 456 (2009). In Fawzy, the court reiterated that parents have the right to have parenting and child-custody disputes settled through arbitration, but held those proceedings must be recorded so that the there is a complete record of the case's testimony, findings of fact and conclusions of law.

The case now before the court, Johnson v. Johnson, A-91-09, concerns an arbitrated child custody determination, conducted in accordance with the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, which limits the scope of judicial review to whether the arbitrator “failed to properly apply applicable law to the factual findings and issues presented for resolution through ADR.” The mother appealed the arbitrator's ruling that gave the father residential custody of the parties' children, but even though there was no written record of the arbitration proceedings, Monmouth County Superior Court Judge Robert Coogan upheld the decision. The Appellate Division reversed, finding that Fawzy was an ameliorative ruling that should be given liberal application so that children's best interests are protected.

The father has asked the State's highest court to overturn the appellate decision, saying that applying Fawzy retroactively could undo large numbers of already completed arbitrations. The mother's attorney, Frank LaRocca, countered by arguing that a requirement of a verbatim record protects children's interests by explaining arbitrators' decisions and their reasoning. When asked by Presiding Appellate Division Judge Edwin Stern, temporarily assigned to the New Jersey Supreme Court, which cases in the pipeline not accompanied by a full transcript should be reconsidered, LaRocca's reply was, “Every contested case.”

A unanimous State Supreme Court declared in Matter of D.C. and D.C, (A-71-09), that siblings of adopted children have the right to petition for visitation, and such may be granted if the petitioning sibling can show that contact with the adopted child would be in that child's best interest. The court then ordered a hearing for the adult sibling of the subject adopted twins. There, the petitioner would have to proffer evidence of some substantial relationship with the children, as the New Jersey Supreme Court felt the record before it was inadequate to make a determination concerning what it termed “this life altering issue.”

No Recognition for Foreign Divorce Obtained Without Notice

The Superior Court, Judicial District of New Haven at Meriden recently declared in Farid v. Farid, FA09 4011049-S (New Haven J.D, at Meriden, 9/8/10) (Fischer, J.), that because a divorce decree was issued in a foreign court without one party's knowledge or consent, Connecticut's courts would not recognize the divorce under the doctrine of comity. The issue arose after a plaintiff wife filed for divorce in February 2009, seeking to end the parties' 1991 marriage, which took place in Pakistan. The defendant husband, Tariq Farid, moved to dismiss, claiming that he had already obtained a divorce in Pakistan in October 2008. The wife countered that she had received no notice of the Pakistani divorce complaint, and the husband could provide no proof of such. It appeared that the husband had given the Pakistani court only his wife's parents' address. That court's divorce decree did not include provisions for alimony, child support or marital property distribution. The Superior Court found that it was not bound to defer to the Pakistani court in this matter because the wife had not been given the opportunity to take part in that court's divorce proceeding. Because she had been denied due process in the Pakistani court, Connecticut was not bound to recognize the divorce under the principles of comity. Therefore, the court denied the husband's motion to dismiss the Connecticut divorce action.

NEW JERSEY

Arbitration Records: Should New Requirements Apply to Pre-Fawzy Cases?

New Jersey's Supreme Court heard arguments Sept. 28 concerning whether pipeline retroactivity should apply to its important ruling last year in Fawzy v. Fawzy , 199 N.J. 456 (2009). In Fawzy, the court reiterated that parents have the right to have parenting and child-custody disputes settled through arbitration, but held those proceedings must be recorded so that the there is a complete record of the case's testimony, findings of fact and conclusions of law.

The case now before the court, Johnson v. Johnson, A-91-09, concerns an arbitrated child custody determination, conducted in accordance with the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, which limits the scope of judicial review to whether the arbitrator “failed to properly apply applicable law to the factual findings and issues presented for resolution through ADR.” The mother appealed the arbitrator's ruling that gave the father residential custody of the parties' children, but even though there was no written record of the arbitration proceedings, Monmouth County Superior Court Judge Robert Coogan upheld the decision. The Appellate Division reversed, finding that Fawzy was an ameliorative ruling that should be given liberal application so that children's best interests are protected.

The father has asked the State's highest court to overturn the appellate decision, saying that applying Fawzy retroactively could undo large numbers of already completed arbitrations. The mother's attorney, Frank LaRocca, countered by arguing that a requirement of a verbatim record protects children's interests by explaining arbitrators' decisions and their reasoning. When asked by Presiding Appellate Division Judge Edwin Stern, temporarily assigned to the New Jersey Supreme Court, which cases in the pipeline not accompanied by a full transcript should be reconsidered, LaRocca's reply was, “Every contested case.”

A unanimous State Supreme Court declared in Matter of D.C. and D.C, (A-71-09), that siblings of adopted children have the right to petition for visitation, and such may be granted if the petitioning sibling can show that contact with the adopted child would be in that child's best interest. The court then ordered a hearing for the adult sibling of the subject adopted twins. There, the petitioner would have to proffer evidence of some substantial relationship with the children, as the New Jersey Supreme Court felt the record before it was inadequate to make a determination concerning what it termed “this life altering issue.”

No Recognition for Foreign Divorce Obtained Without Notice

The Superior Court, Judicial District of New Haven at Meriden recently declared in Farid v. Farid, FA09 4011049-S (New Haven J.D, at Meriden, 9/8/10) (Fischer, J.), that because a divorce decree was issued in a foreign court without one party's knowledge or consent, Connecticut's courts would not recognize the divorce under the doctrine of comity. The issue arose after a plaintiff wife filed for divorce in February 2009, seeking to end the parties' 1991 marriage, which took place in Pakistan. The defendant husband, Tariq Farid, moved to dismiss, claiming that he had already obtained a divorce in Pakistan in October 2008. The wife countered that she had received no notice of the Pakistani divorce complaint, and the husband could provide no proof of such. It appeared that the husband had given the Pakistani court only his wife's parents' address. That court's divorce decree did not include provisions for alimony, child support or marital property distribution. The Superior Court found that it was not bound to defer to the Pakistani court in this matter because the wife had not been given the opportunity to take part in that court's divorce proceeding. Because she had been denied due process in the Pakistani court, Connecticut was not bound to recognize the divorce under the principles of comity. Therefore, the court denied the husband's motion to dismiss the Connecticut divorce action.