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Appellate Division found that a trial court cannot confirm a custody order that was determined by arbitration. Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (2009)


In Schechter v. Schechter, the court considered whether a religious arbitration tribunal could determine child custody and whether the Supreme Court could then confirm the arbitration decision.

David Schechter, the plaintiff and Wendy Zehava Schechter, the defendant entered into an agreement pursuant to which they agreed to arbitrate all marital issues between them before a rabbinical arbitration tribunal, the Bais Din. The Bais Din wrote a decision, awarding the parties joint custody of the couple’s 14-year-old daughter. David filed a motion to confirm the arbitration agreement before the Supreme Court, Nassau County, the appropriate trial court. Wendy consented to the trial court confirming the award with certain exceptions.

Wendy also sought sole legal custody of the couple’s daughter rather than joint custody, requesting that the trial court ascertain the daughter’s wishes. In addition, Wendy sought to hold David in contempt due to his failure to comply with “so-ordered” stipulations. The trial court granted David’s motion, confirming the decision by the Bais Din to award the parties joint custody and visitation of their daughter and refusing to hold David in contempt. The trial court entered a judgment, awarding Wendy and David custody of and visitation with their daughter. Wendy appealed the trial court orders.

A trial court may not confirm an award of custody of and a visitation order for a child when the custody award and visitation order was determined by an arbitration tribunal. Wendy appealed the trial court’s order on April 1, 2008, awarding the parties joint custody of their 14-year-old daughter. However, that part of the order was superseded by the judgment entered on June 25, 2008, which awarded David and Wendy joint custody as a result of the arbitration. Under New York law, custody and visitation disputes like the dispute between Wendy and David cannot be resolved by arbitration tribunals like the Bais Din. The trial court should have denied David’s motion seeking to confirm the decision of the Bais Din.

The court ordered that the judgment of the lower court reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiffs motion which was to confirm so much of the arbitration award as awarded the parties joint custody of and visitation with their 14-year-old daughter is denied. It also ordered that the matter is remitted to the Supreme Court, Nassau County, for a hearing and determination as to the issues of custody and visitation with respect to the parties’ 14-year-old daughter. Pending the new hearing and determination by the Supreme Court, the court order that the parties shall continue to have joint custody of and visitation with their 14-year-old daughter.



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