New Jersey Family Law Blog

A three-judge Appellate Division panel recently ruled out binding, nonappealable arbitration as a way to settle custody and parenting time disputes. Arbitration is a favored remedy for settling disputes, but parties can’t bargain away the court’s obligation under the principle of parens patriae to ensure the best interests of children, the appeals court said.

Christine and Samih Fawzy, broke off their 14-year marriage in 2005. When their case came up for trial in Middlesex County in 2007, they decided to submit to binding arbitration on all issues, including custody and parenting time. Judge Fred Keiser Jr. warned the decision would be final and could not be appealed but for changed economic circumstances.

After four sessions, the father began to sense the arbitration was going against him, so he sought to back out and have a plenary hearing. Judge Glenn Berman, who had inherited the case, denied the request, the arbitrator made an award and the judge entered a judgment of divorce.

The appellate court in reversing the parenting provisions of the arbitration award, cited Flaherty v. Flaherty, 97 N.J. 99 (1984). Custody and visitation issues weren’t before that court, but the justices said in dicta, “as we gain experience in the arbitration of child support and custody disputes, it may become evident that a child’s best interests are as well protected by an arbitrator as a judge.” The court went on to say, [i]f so, there would be no necessity for our de novo review…[h]owever because of the Court’s parens patriae tradition, at this time we prefer to err in favor of the child’s best interest.”

Brian Paul, who sought to enforce the arbitration on the wife’s behalf, says he will seek Supreme Court review, asking the justices to balance the public policy goals of limiting litigation and protecting children.

The New Jersey Supreme Court ruled last month that “[c]ohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In Devaney V. L’Esperance, Not Reported A.2d., 2008 WL 2491976 (NJ). The Court by a 6-1 majority broke away from the precedent set by almost every state court by saying a Plaintiff need only prove that there was a “marital-type relationship.” The Court found that no such relationship existed in this case.

The Parties began dating in 1983 and L’Esperance paid for Delvaney’s college education and purchased an apartment for her in North Bergen. The two also tried unsuccessfully to have a child together. She claimed he promised to leave his wife and marry her but never did. They broke up in 2003 and he kicked her out of the apartment.

Justice John Wallace writing for the majority found that the Superior Court had correctly ruled that the Parties never held themselves out as a married couple. The Court also found that there was no proof establishing the claim that L’Esperance promised to support Delvaney.

Wallace further explained that the Court should not limit itself by requiring cohabitation and saying, “[r]ather, we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed, or implied, coupled with a marital-type relationship, that are indispensable elements to support a valid claim for palimony.”

A large majority of successful palimony claims involve cohabitation, however if a couple holds themselves out as husband and wife the fact that they do not reside together may be immaterial. Justice Roberto Rivera-Soto concurred with the opinion but expressed some concern expressing the opinion that cohabitation should at the very least be a bare minimum” requirement. He cited a California case wherein the Palimony cause of action was created. He goes on to say that “California makes the critical observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.” Citing Bergen v. Wood, 14 Cal. App. 4th 854 (Cal. Ct. App. 1993).

New Jersey is now the first state that does not require cohabitation as a requirement for Palimony. This decision is a step forward to ensuring fairness in long term marital-type relationships. Most of the cases where Palimony is an issue one of the spouses is either married or has the relationship as something on the side. In cases such as these cohabitation is impossible.