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LII Special Projects: Child Custody Disputes

I. Introduction

In 1999, over 60,000 marriages that involved children ended in divorce in New York State. New York State Department of Health, Table 52: Divorces by County of Occurrence and Number of Children Under 18, (1999), at http://www.health.state.ny.us/nysdoh/vs99/table52.htm. When families split apart, one of the primary concerns for parents and the courts is the determination of child custody and visitation.

In a custody dispute incident to a divorce action, "the supreme court may refer to the family court the determination of applications to fix temporary or permanent custody or visitation." N.Y. FAM. CT. ACT § 467 (2002); see also N.Y. CONST. art. VI, § 13 (defining the jurisdiction of family court). Without a referral, only the supreme court may determine custody. When parents raise custody disputes outside of divorce proceedings, they may do so through a petition for habeas corpus which grants the family court jurisdiction without need for a referral. N.Y. CONST. art. VI, § 13 (2002); N.Y. DOM. REL. LAW § 70 (2002); Marx v. Holloran, 236 A.D. 680 (N.Y. App. Div. 1931).

Mental health professionals and members of the legal community have questioned whether an adversarial, litigious approach to child custody disputes is in the best interest of the concerned parties. See, e.g., JoAnne Pedro-Carroll, Ellen Nakhnikian, & Guillermo Montes, Assisting Children Through Transition: Helping Parents Protect their Children from the Toxic Effects of Ongoing Conflict in the Aftermath of Divorce, 39 FAM. CT. REV. 377, 377-78 (2001); see also Anita Vestal, Mediation and Parental Alienation Syndrome: Considerations for an Intervention Model, 37 FAM. & CONCILIATION CTS. REV. 487, 487 (1999). Certainly, litigating custody is a stressful, time-consuming, and costly process that burdens the resources of both the parents and the courts. The use of mediation and arbitration in determining custody, whether to supplement or replace judicial intervention, offers the possibility a more efficient and cooperative route to successful resolution of custody disputes.

As will be discussed later in this paper, the New York courts have historically disapproved of the use of arbitration in family disputes. Glauber v. Glauber, 192 A.D.2d 94, 97 (N.Y. App. Div. 1993). However, a series of initiatives, including the P.E.A.C.E. Program in New York and the American Bar Association’s adoption of Model Standards of Practice for Family and Divorce Mediation, suggest that the courts and practitioners ought to reconsider this stance against arbitration. See Andrew Schepard, An Introduction to the Model Standards of Practice for Family and Divorce Mediation, 35 FAM. L.Q. 1 (Spring 2001); see Andrew Schepard and Stephen Schlissel, Planning for P.E.A.C.E.: The Development of Court-Connected Education Programs for Divorcing and Separating Families, 23 HOFSTRA L. REV. 845 (Summer 1995); see Andrew Schepard, War and P.E.A.C.E.: A Preliminary Report and a Model Statute on an Interdisciplinary Educational Program for Divorcing and Separating Parents, 27 U. MICH. J.L. REFORM 131 (Fall 1993). While removing custody disputes from the courtroom altogether may be impracticable, and indeed undesirable, there is room for the addition of cooperative efforts to the adversarial process.

It should be noted here that there are two collateral issues that this paper will not discuss: bids for custody by non-natural parents and jurisdictional issues relating to custody disputes. For more on those topics, see N.Y. SOC. SERV. LAW § 383 (2002) ("Care and custody of children") and N.Y. DOM. REL. LAW § 75 (2002) ("Uniform Child Custody Jurisdiction Act").