Sheets v. Sheets
| Decision Date | 08 December 1964 |
| Citation | 22 A.D.2d 176,18 A.L.R.3d 1257,254 N.Y.S.2d 320 |
| Parties | , 18 A.L.R.3d 1257 Margaret B. SHEETS, Plaintiff-Respondent, v. Lawrence S. SHEETS, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
S. Lawrence Atkins, New York City, for appellant.
Morris Ploscowe, New York City, of counsel (Harvey I. Sladkus, New York City, on the brief) for respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and McNALY, JJ.
This appeal presents the question as to what extent parties to a separation agreement may efrectively contract for arbitration of disputes concerning the beneficial interests of the children of the marriage.
The parties entered into a separation agreement in January, 1962. Thereafter, the wife took up residence in Florida, where she obtained a decree of divorce approving the separation agreement. Paragraph 3 of that agreement provided that the wife shall have custody of the children and control and supervision of their upbringing, subject to specified visitation rights to the husband. It also provided for consulation by the wife with the husband on all matters of importance relating to the children's health, welfare and education, for notification to the husband in the event of serious injury or illness to any child, and for the encouragement of respect and love for both parents.
Insofar as is pertinent at this time, the agreement provided that '[i]f the parties cannot reach an agreement as to any matter within the scope of Paragraph 3 * * * the dispute shall be settled by arbitration in accordance with the Rules of the American Arbitration Association'.
The husband served a demand for arbitration seeking, among other things, damages for violation of the agreement with respect to visitation, with respect to the secular and religious education of the children, and as to a claimed alienation of the children's affection for their father. The husband has appealed from an order staying arbitration of such demands.
It is now settled law in this State that provisions in separation agreements for the arbitration of disputes regarding the amount the husband is to pay for the support of the wife and children will be enforce. (Matter of Robinson v. Robinson, 296 N.Y. 778, 71 N.E.2d 214; Matter of Luttinger v. Luttinger, 294 N.Y. 855, 62 N.E.2d 487; Matter of Lasek v. Lasek, 13 A.D.2d 242, 215 N.Y.S.2d 983.) But it has been held that there may be no arbitration of a dispute between parents as to rights of visitation (Michelman v. Michelman, 5 Misc.2d 570, 135 N.Y.S.2d 608) or as to custody and visitation (Matter of Hill (Hill), 199 Misc. 1035, 104 N.Y.S.2d 755).
Yet, there seems to be no clear and valid reason why the arbitration process should not be made available in the area of custody and the incidents thereto, i. e., choice of schools, summer camps, medical and surgical expenses, trips and vacations. In fact, the American Arbitration Association is now equipped to arbitrate marital disputes arising out of separation agreements. (Marital Disputes Arbitration [Memorandum, Nov., 1963].) For a general discussion of the subject, see Lindey, Separation Agreements and Ante-Nuptial Contracts, (Rev.Ed.1961) § 14-29; Committee Decision of Child Custody Disputes and the Judicial Test of 'Best Interests', 73 Yale L.J., p. 1201 et seq.
There should be some clarification and restatement of the proper position to be taken by courts as to arbitration provisions in separation agreements which affect matters of custody and visitation of children. Courts will, as a general rule, enforce an agreement between a husband and wife regarding custody of children so long as the agreement is in the best interests and welfare of the children. The inherent power of the courts to safeguard the welfare of children would not, however, be dissipated by a separation agreement that provided for settlement of custody disputes and related matters by some arbitration tribunal. Necessarily, an award rendered upon a voluntary submission of any such disputes to arbitration would still be subject, in a direct proceeding affecting the child alone, to the supervisory power of the court in its capacity as parens patriae to the child. (Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; People ex rel. Herzog v. Morgan, 287 N.Y. 317, 39 N.E.2d 255.)
To the extent that such an award conflicted with the best interests of the child, courts would treat as a nullity insofar as the child is concerned, irrespective of what binding effect it may have on the parents. An arbitration award under such circumstances could no more infringe the paternal duty of the court to guard the child's welfare, than a foreign decree of a court rendered before the child became subject to our courts' jurisdiction. (Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866; Matter of Hicks v. Bridges, 2 A.D.2d 335, 339, 155 N.Y.S.2d 746, 751; cf. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240.) The controlling factor would be, as always, what was for the best interests of the child; and the provisions of any award could be challenged in court on that basis at the instance of a parent, a grandparent, an interested relative, or the child himself by a friend. (See 6 Weinstein-Korn-Miller, New York Civil Practice, § 7002.14.) The challenge might take the form of opposition to confirmation of the award, of a cross-application invoking the court's paternal jurisdiction, or an independent summary proceeding.
Thus, the best interest of the child is assured protection by this omnipresent judicial check against arbitration awards in custody matters attaining the unassailable finality of awards in other arbitrations. Nor could any such award in a custody matter be given any res judicata consequences against the child, who was not a party to the arbitration. However, such an award would effectively bind the parents of the child to the extent that it settled their disputes, but only insofar as the award did not adversely affect the substantial interest of the...
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