Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.

The appellate court gleaned from the record that no hearing was necessary to determine “that the parties were largely unable to cooperate on matters relating to their child’s education.” No hearing was necessary for the Supreme Court to determine that if the parties could not agree upon a parental coordinator, then, in the child’s best interests, the mother should be awarded sole decision-making authority over their child’s education.

Likewise, the Supreme Court properly disqualified, without a hearing, the individual previously selected by the parties to arbitrate issues relating to their child’s education. They did so in light of the decision to award the mother sole decision-making authority as to the child’s education.

Obviously, there’s a lot we have not been told. I speculate that Mr. Scholar is a very difficult man. I speculate that the parties are Orthodox Jews.

We know, however, that the one and only issue as to which the parties had agreed Mr. Scholar would have input would be his child’s [Jewish?] education. Even that input would be limited. He was only given the right by the parties’ agreement to present his views to a pre-determined arbitrator. That is what these parents decided would be best for their child.

Without a hearing, that plan for the education of the child was discarded. Without a hearing, the parties’ chosen arbitrator was dismissed. However, the Second Department’s stated reason for that dismissal was not because arbitration of this issue would be improper. It was not because the arbitrator was biased. Rather, the arbitrator was dismissed because the mother was going to be given sole decision-making authority; and such was being ordered because Mr. Scholar was a difficult man. This is precisely what the parties agreed would not happen.

Why was it that the parties had agreed only a year or two before that Ms. Timinsky would not make education decisions alone? We don’t know. We do know that these parties agreed that education would be treated differently than every other area of the child’s life. We do know that anticipating that they would not be able to reach agreement on education issues (because Mr. Scholar is such a difficult man?), the parties picked the person they wanted to make the decision.

The court in Scholar/Timinisky did not decide that a particular education was in the child’s best interests. What it decided, without a hearing, was that it was better for the mother to make this decision than to have the parents’ chosen arbitrator, the Court, or any other third party make that decision.

If Mr. Scholar was a more reasonable man, would the arbitration provision have been enforced. The decision would be far more understandable if the court simply referenced New York’s blanket prohibition of custody arbitration. Custody and visitation are inappropriate for resolution by arbitration. In Glauber v. Glauber, 192 A.D.2d 94, 600 N.Y.S.2d 740 (1993), the Second Department declared:

Notwithstanding that custody agreements between parents are, in the usual case, to be given priority…, the responsibility of the courts always supersedes whatever bargain has been struck. The court must always make its own independent review and findings…. A court cannot be bound by an agreement as to custody and visitation, or either custody or visitation, and simultaneously act as parens patriae on behalf of the child….

Enforcing arbitration provisions such as those at bar would be contrary to the foregoing authority because an agreement to arbitrate the issue of custody is indistinguishable from an agreement to give custody.

An award of custody inherently carries the right to make the major decisions affecting the health, education and welfare of a child. It would have been consistent with New York’s public policy to void an agreement to arbitrate a major decision concerning a child’s education. That’s not, however, what happened here.

Only two months ago, the Second Department enforced that provision of a couple’s stipulation which mandated use of a parent coordinator before asking a court to get involved in a decision to terminate the children’s therapy.  On June 21, 2011, in Berg v. Berg, the court noted that the stipulation set forth “a procedure for settling disputes between the plaintiff and defendant. The plaintiff must follow this procedure before he can resort to a court.” It is noteworthy that the Bergs, parents of 10-year-old twins, had agreed to arbitrate the dissolution of their marriage before a rabbinical court, or Beth Din. They subsequently divorced, and the Beth Din arbitrated the parties’ financial issues.

It took 11 months for the Second Department to render its decision (that fact is not meant to suggest a delay by either party or the court). We are not told the date of the application that was decided by Justice Raffaele on September 9, 2010. The judicial system takes time and money. It is expensive. It tends to aggravate tensions.

New York’s public policy declares that in the absence of the custodial parents’ agreement, a court, and only a court, may make decisions and must do so using the child’s best interests standard. However, that responsibility must be met with the money, personnel and resources needed to render informed and enlightened decisions quickly. At the same time, if the long-term best interests of the child are to be promoted, each parent must perceive that he or she has been heard and treated with fairness and respect. In the absence of such judicial resources, the system itself may not be in the best interests of the child.