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

Virtually all states encourage mediation in divorce cases, and some even require it. What about other forms of alternative dispute resolution? In Johnson versus Johnson, two divorced parents turned to arbitration to resolve their custody issues.

David and Molly Johnson were divorced with two young children. Their divorce decree established the terms of their shared custody. Because David and Molly continued to clash over their parenting schedule, they agreed to resolve their ongoing issues in arbitration. David and Molly signed a detailed arbitration agreement, specifying the arbitrator’s duties and the procedures to be followed. Pursuant to the agreement, the arbitrator didn’t conduct hearings, but instead interviewed the parties, the children, a psychologist, and a clinical social worker numerous times over the course of several months. The arbitrator also observed the children in each parent’s home.

The arbitrator’s award gave a detailed basis for his decision, thoroughly recounting all his interviews and observations. The arbitrator modified the custody arrangements so that the children made fewer transitions between their parents’ homes.

Molly objected to the arbitrator’s decision and petitioned the family court for his removal. David filed a motion to confirm the award. Molly cross-moved for modification of the custody schedule or for a full hearing to determine custody and parenting time. After a hearing, the trial court determined that the arbitrator had created a sufficient record to allow judicial review and confirmed the arbitrator’s award. The Appellate Division reversed, holding that the trial court had no basis for confirming the award without a verbatim record of testimony. The New Jersey Supreme Court granted David’s petition for review.

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