The court feels that delegating this duty to a third party is against public policy.
MW v. RR, 2026 NY Slip Op 50278 – NY Sup. Ct. Rock. Co. 2026:
“Parties should generally be permitted to discontinue an action,
provided that the discontinuance is filed within the time parameters set
forth in CPLR § 3217. However, there are exceptions, particularly where
children are involved, and especially when the safety of children is at
issue. To this end, any application to discontinue must be evaluated
with due regard to the interests of the children, since the state has a
legitimate interest in protecting children from abuse or neglect. See generally Irene D. V. Anthony D., 113 Misc 2d 561 (Family Court New York County 1982).
In this action seeking divorce, with a contested custody dispute, the
Court finds an issue of first impression, involving the interplay
between CPLR § 3217(a), the rights, duties and obligations of an
attorney for the child, a temporary order of protection, the parties’
right to contract, and the validity of an arbitration agreement. The
principal issue is whether this Court should accept a stipulation of
discontinuance, contained in an “Agreement to Arbitrate” filed with this
Court. In this Agreement, the parties state that they agree to
arbitrate not only issues of support, maintenance and equitable
distribution, but also issues of custody and visitation. The Court
appointed attorney for the child (“AFC”) was not a signatory to the
arbitration agreement when there is a temporary order of protection in
effect protecting the child, and the AFC and the Plaintiff both object
to the discontinuance.
For the reasons that follow in this Decision and Order, this Court finds that: (1) because of the Court’s function as parens patriae
in contested custody matters, (2) because of the existence of a
temporary order of protection in favor of the child, and (3) because the
attorney for the child objects to the discontinuance, discontinuance of
this action should not be permitted even though the parties agreed to
same. Additionally, the Court finds that the stipulation does not comply
with CPLR §3717.
PRELIMINARY STATEMENT
On October 3, 2025, this Court issued an Order (hereinafter referred to as the “October 2025 Order”) which provided, inter alia, that:
WHEREAS, the parties entered into an arbitration agreement
dated September 12, 2025, that included a stipulation discontinuing the
instant action; and
WHEREAS, the Attorney for the Child was not a signatory of said agreement; and
WHEREAS, an issue as to the validity of the Stipulation of
Settlement pursuant to CPLR 3217 has been raised as has the issue of the
parties agreeing to arbitrate the issue of Custody and parental access (Goldberg v. Goldberg, 124 AD3d 779) as well as other terms of the agreement; and
IT IS HEREBY ORDERED that all parties and the Attorney for the Child
shall submit briefs on the issue of the validity of the agreement
simultaneously on October 17, 2025 at 5:00 p.m.
BACKGROUND
This instant matter has a substantial litigation history, much of
which will not be repeated herein. However, as for relevant background,
the parties were married on June 13, 2020. There is one child of this
marriage, to wit: Z., born xx/xx/xxxx. The instant action for
divorce and ancillary relief was commenced on February 10, 2023 by the
filing of a Summons and Verified Complaint with the Rockland County
Clerk on February 10, 2023. The Defendant interposed a Verified Answer
on March 3, 2023. A Preliminary Conference was held in this matter on
April 4, 2023.
On April 15, 2025, an Administrative Order was issued by the Hon.
James P. Murphy, J.S.C., D.C.A.J., assigning the undersigned Justice to
hear and determine this matter. On April 28, 2025, this Court issued an
Order Appointing Attorney for the Child. On April 28, 2025, this Court
issued a Temporary Order of Protection on behalf of the child.[1]
On September 12, 2025, the parties executed the subject Arbitration
Agreement (“Agreement”) filed with the Court on September 22, 2025. On
January 7, 2026 this Court issued a Decision and Order (hereinafter
referred to as the “January 2026 Order”)[2] which, inter alia
and in sum and substance, denied the Defendant’s application seeking
the disqualification of the AFC and denied the Defendant’s application
seeking the appointment of a new AFC. The instant Decision and Order
with respect to the October 2025 Order was held in abeyance pending the
January 2026 Order.
THE PARTIES’ CONTENTIONS
Defendant’s Contentions:
The Defendant asserts that a stipulation of discontinuance executed
by the parties is binding and terminates the jurisdiction of the Court.
She argues that the AFC, while she is the advocate for the child, she is
not a procedural party and her signature is not required to effectuate a
stipulation of discontinuance. The Defendant alleges that the Court
lacks jurisdiction over the instant custody matter following the
execution of a valid stipulation of discontinuance, and the parties have
a constitutional right to determine the best interests of the child.
The Defendant argues that stipulation of discontinuance is binding and
enforceable, and that judicial resources should not be expended on
matters which have been voluntarily discontinued. The Defendant alleges
that the parties freely chose the Rabbi, that there was no fraud,
collusion, mistake or accident, especially where the Plaintiff induced
the execution of the Agreement. The Defendant alleges that the
Agreement, which resolved all issues, included a stipulation of
discontinuance, and that the Agreement is signed and notarized by the
parties after consultation with counsel of their own choosing.
The Defendant maintains that a stipulation of discontinuance is
effective even if it is contained within an agreement signed by the
parties. The Defendant alleges that the stipulation of discontinuance is
valid and enforceable notwithstanding the validity of the other
provisions in the agreement. The Defendant alleges that in the
Agreement, the parties included a severability clause which could be
used to enforce the remainder of the Agreement. The Defendant alleges
that even if the arbitration provision in the Agreement is deemed
nonbinding and unenforceable, the severability clause ensures that the
stipulation of discontinuance remains in effect. The Defendant argues
that allowing a party to challenge the stipulation of discontinuance
based on whether the child custody arbitration portion of the agreement
would undermine the severability clause to which the parties agreed.
The Defendant further argues that CPLR § 3217(a)(2) applies even when
a divorce action in Supreme Court involves child custody matters. The
Defendant asserts that the absoluteness of a discontinuance under this
section applies in all circumstances. The Defendant claims that the
stipulation of discontinuance does not purport to alter or extinguish
any independent legal rights of the child. The Defendant argues that
there are very limited exceptions to the termination of jurisdiction
following a stipulation of discontinuance, such as a Family Court Act
Article 10 proceedings. He maintains that in the event that the Court
determines that approval to discontinue is required after a voluntary
discontinuance, then a formal motion would be required, which would,
ostensibly, upend established practice of voluntary discontinuance(s) in
matters involving child custody.
The Defendant alleges that the AFC does not represent a party to the
divorce. She argues that CPLR § 3217(a)(2) requires that the stipulation
of discontinuance be signed by the “attorneys of record for all
parties”, and the term “parties” refers to the individuals named in the
proceeding or have legal standing to assert or defend claims. The
Defendant argues that requiring an AFC to sign stipulation(s) of
discontinuance would improperly elevate their role beyond statutory or
ethical bounds, and alleges that it would give the AFC “unprecedented
power” over a personal decision. The Defendant alleges that CPLR §
3217(a)(2) permits a voluntary discontinuance before the matter is
submitted to the court or jury, and the matter has not been submitted to
the court or jury in this instance. The Defendant finally argues that
the parties have a right to discontinue this action and pursue
alternative dispute resolution methods.
As to the Court’s role and power over the parties’ desire to
arbitrate, the Defendant argues that while courts have held that their
role as parens patriae must not be usurped, such authority
extends where the conformation of an arbitration award is disputed, and
that the courts cannot stop parties from engaging in alternative dispute
resolution methods if they so wish (see Defendant’s Brief, pages 14-15). While the Court initially agrees with the generalized notion that courts cannot stop
parties from seeking alternative dispute resolution, the Court parts
ways with the Defendant based upon the provisions of the Agreement after
a review of same.
Plaintiff’s Opposition:
The Plaintiff alleges that the Defendant is, in effect, attempting to
discontinue this action so that she can immediately thereafter file an
action in New York County where her family rents an apartment. The
Plaintiff claims that in September 2025, a Rabbi was contacted to assist
the parties in resolving their contested issues. The Plaintiff
maintains that the Rabbi thereupon presented the parties with the
Agreement. The Plaintiff alleges that the Defendant executed the
Agreement and filed same on September 22, 2025 alleging that the divorce
action was discontinued, but the Plaintiff thereupon objected to the
discontinuance. He alleges that the Agreement cannot serve as a
stipulation of discontinuance because it was not signed by the attorneys
of record in this action. The Plaintiff alleges counsel for the parties
did not sign the Agreement, nor did counsel for the parties sign a
stipulation of discontinuance. The Plaintiff argues that the rule that
counsel must sign any stipulation of discontinuance is not
discretionary.
The Plaintiff also argues that agreements to arbitrate custody issues
are invalid in New York, which is the state with jurisdiction in this
matter. The Plaintiff argues that even if the Agreement served to
discontinue the action with respect to the financial issues, it cannot
discontinue the action concerning the custody issues because custody
issues are not subject to arbitration in New York. The Plaintiff claims
that it is irrelevant that New Jersey permits arbitration of custody
issues because New Jersey does not have jurisdiction over custody of the
child. The Plaintiff alleges that the child has resided in the State of
New York for her entire life.
Attorney for the Child’s Opposition:
The AFC alleges that once an action has commenced and advanced, CPLR §
3217(b) requires court approval, and that discontinuance is not a
matter of right, but lies within the discretion of the Court. The AFC
alleges that in family law matters, especially ones involving custody,
allegations of abuse, and visitation, discontinuance is not a matter of
right, but it lies within the discretion of the Court to protect the
best interests of the child. The AFC notes that both she and the
Plaintiff object to the discontinuance. The AFC alleges that CPLR §
3217(a) permits discontinuance without an order of the Court, but only
prior to issue being joined or, in limited circumstances, where all
parties of record consent in writing. The AFC alleges that she must be
afforded an opportunity to be heard before a proceeding affecting the
child’s welfare be discontinued.
The AFC also claims that she is not a signatory to the Agreement and
that she did not have an opportunity to review the Agreement prior to
the signing thereof. The AFC alleges that the Court must act as parens patraie
to do what is best for the child. The AFC argues that a discontinuance
would “disintegrate the very protections the Court has already put in
place to ensure the child’s safety”. The AFC alleges that there is an
active temporary order of protection in place in her client’s favor and
the AFC continues to serve by court appointment, reinforcing the need
for continued judicial supervision. The AFC maintains that the child’s
welfare is at issue and the discontinuance would remove safeguards put
in place by the Court. The AFC alleges that the Defendant’s own filings
reinforce why discontinuance would endanger the child’s safety, as one
day before the signing of the Agreement, the Defendant moved to restore
Family Court’s order requiring supervision for the Plaintiff. The AFC
argues that the Defendant’s own conduct in this action underscores that
the child’s welfare is deeply troubled and “at escalating risk”.
DISCUSSION AND ANALYSIS
DISCONTINUANCE
The Agreement, at Paragraph “44”, provides:
44. The parties expressly acknowledge that they understand
and agree that arbitration before the Arbitrator shall be the exclusive
forum for the adjudication of the above listed disputes and as set forth
above by agreeing to arbitration they are waiving their rights to other
resolution processes, such as court action or other arbitration, and
that the parties shall be precluded from bringing suit in court with
respect to the disputes listed above, except as to enforce this
Agreement. This provision shall be a complete defense to any suit,
action or proceeding instituted before any court or other body with
respect to the above listed disputes, provided, however, that,
notwithstanding this provision, any party may seek interim judicial
relief in aid of arbitration, to prevent a violation of this Agreement
pending arbitration, or to enforce any arbitration award. If either
party violates this provision, the other party shall be entitled to
dismissal or injunctive relief regarding such court action or
arbitration and recovery of all costs and disbursements, losses, and
attorneys’ fees related to such other proceeding, if such claim is
dismissed, to the extent permitted by law. The Parties further agree
to immediately discontinue any and all court actions, if any, relating
to the matters discussed in Paragraph 2 of this Agreement and the
parties shall immediately execute all documents necessary to complete
the foregoing. The parties agree that the court case, if any, is hereby
discontinued and all prior orders, decisions, findings and stipulations,
if any, no longer have effect. The invalidity of any provision of
this Agreement shall not affect the validity of any other provision of
this Agreement. In the event that a court of competent jurisdiction
determines that any provisions of this Agreement fail to comply with the
legal requirements for the compulsory arbitration of the disputes
listed above, it is the parties’ intention that the court shall
equitably reform such provisions to the extent necessary (and only to
the extent necessary) to conform the offending provisions to such legal
requirements.
(emphasis added).
As a threshold matter, both the Plaintiff and Defendant aver that
CPLR § 3217(a) applies. The AFC avers that CPLR § 3217(b) applies. The
parties and the AFC are effectively at odds as to the operative
provision of CPLR § 3217. The Court therefore finds that it must, first,
address the operative provision of CPLR § 3217. CPLR § 3217(a)(2)
provides:
(a) Without an order. Any party asserting a claim may discontinue it without an order
* * *
2. by filing with the clerk of the court before the case has
been submitted to the court or jury a stipulation in writing signed by
the attorneys of record for all parties, provided that no party is an
infant, incompetent person for whom a committee has been appointed or
conservatee and no person not a party has an interest in the subject
matter of the action; or
CPLR § 3217(b) provides:
(b) By Order of Court. Except as provided in subdivision
(a), an action shall not be discontinued by a party asserting a claim
except upon order of the court and upon terms and conditions, as the
court deems proper. After the cause has been submitted to the court or
jury to determine the facts the court may not order an action
discontinued except upon the stipulation of all parties appearing in the
action.
Initially speaking, the AFC argues that since “… issue has long
since been joined, discovery completed, witnesses sworn, and the Court
has issued material orders …” (see AFC Brief, page “3”), CPLR § 3217(b) applies.
The Court disagrees with the AFC on an initial basis; the Court finds CPLR § 3217(b) inapposite in the first instance. In Emigrant Bank v. Salimano, the court held that
“… [t]he third stage of a litigation, as relevant to a
discontinuance, is the period after the case has been submitted to the
court or the jury for a determination of the facts. Once an action or a
proceeding has advanced to the point of deliberation and fact-finding,
there can be no discontinuance except by leave of court upon such terms
and conditions as the court deems proper and a stipulation of all
parties appearing in the action … [t]hus, CPLR § 3217, viewed in its
entirety, operates like a seesaw, allowing for discontinuances by mere
unilateral notice at the earliest stage of a litigation, while imposing
incrementally greater requirements upon the party seeking the
discontinuance the farther the litigation progresses.
The statute is easily applied in cases that go to trial. In
such instances, the submission of the case to a jury for its findings of
fact, or the submission of the case to a court during a bench trial,
operates as a bright line separating the discontinuance that may be
sought using the pre-deliberative mechanisms of CPLR §§ 3217(a)(2) and
(b) from the mechanism of CPLR § 3217(b) which attaches once the
deliberative phase begins …”
Emigrant Bank v. Solimano, 209 AD3d 153 (2d Dept. 2022).
While testimony has, in fact, been taken, the trial was never completed
and submitted to the Court for a determination of the facts (Emigrant Bank, supra).
This matter has not advanced to the point of deliberation and
fact-finding. While testimony was taken in Rockland County prior to the
assignment to the undersigned, this Court has not, at this juncture,
declared a mistrial. It is of no moment that discovery may or may not
have been completed, and it is of no moment that “material” orders may
have been issued. Matrimonial courts routinely issue material orders pendente lite; but a material pendente lite order does not
mean that the case was submitted to the undersigned for fact-finding
and deliberation on a final basis. Therefore, the Court finds that, at
this point, CPLR § 3217(a) is operative, unless, of course, the Court
finds that the parties cannot discontinue pursuant to CPLR § 3217(a).
CPLR § 3217(a)(2) clearly provides that a party may discontinue without a
court order:
“… by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant … no person not a party has an interest in the subject matter of the action...”
(emphasis added).
The Defendant argues to the Court that once a stipulation of
discontinuance is signed by the parties and filed with the Court, the
Court is divested of jurisdiction and it terminates the underlying
divorce proceeding. The Court disagrees under the circumstances of this case.
As an initial matter, the Agreement is in derogation of CPLR §
3217(a)(2) inasmuch as it was neither signed by the Plaintiff’s counsel
nor the Defendant’s counsel. The text of CPLR § 3217(a)(2) makes clear
that the signatures of counsel are required, and the Agreement is devoid
of the signature(s) of counsel for the parties. The text of the statute
could have provided that any stipulation of discontinuance be
signed just by the parties. It does not. Inasmuch as CPLR § 3217(a)(2)
specifically requires the signatures of the attorneys of record for all
parties, and inasmuch as the Agreement does not contain the signature of
the attorneys of record for all parties, the Agreement fails to comply
with CPLR § 3217(a)(2).
The Court also disagrees with the AFC’s position that the Agreement
which seeks to discontinue the action is invalid because she was not a
signatory. A child is not a party to a matrimonial action. The
parties to a matrimonial action are the parents. While the Court
certainly has to consider, in a contested custody matter, the express
wishes of the children as a factor (Silverman v. Silverman, 186 AD3d 123
[2d Dept. 2020]), their wishes are not dispositive. Whether the Court
can choose not to honor a stipulation of discontinuance which
discontinues a divorce action is a separate issue. In this instance, the
Court declines to accept the Agreement as a stipulation of
discontinuance.
CPLR § 3217(a)(2) provides this Court with the authority to decline
to permit the discontinuance by stipulation. It reads “… provided that
… no person not a party has an interest in the subject matter of the action...” (emphasis added). While a child may not be a party to the action, a child is a person. See generally Matter of Bennett v. Jeffreys, 40 NY2d 543 (1976).
The Second Department has made it clear that children have a real and
substantial interest in the outcome of contested custody litigation,
writing, in part:
“… [s]ubstantively, and more importantly, it cannot be denied that a
… child has a real and substantial interest in the outcome of
litigation between the parents … [i]t seems self-evident that the
child is the person most affected by a judicial determination on the
fundamental issues of responsibility for, and the environment of, the
child’s upbringing. To rule otherwise would virtually relegate the child
to the status of property, without rights separate and apart from those
of the child’s parents….”
Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). The Second Department characterized the child’s interest in the outcome as “vital”. Matter of Newton, 174 AD3d at 75.
A party can argue that an AFC has no right to object to litigants
voluntarily electing to discontinue their divorce action. That argument
is certainly well-taken. In JM v. RM when discussing the role of an AFC:
“… [i]t is worth summarizing: the AFC is tasked with the
weighty responsibilities of zealously advocating for his or her client
… taking an active role in the proceedings … and consulting and
counseling the client … [i]n addition, the AFC must subject themselves
to the ethical requirements applicable to all lawyers … including the
rules of good lawyering and professional responsibility …”
JM v. RM, 77 Misc 3d 506 (Supreme Court Nassau County 2022).
The AFC, once assigned by the Court, is an attorney in the matter who
must represent his or her client. She has to advocate for and counsel
her client, she has to take an active role in the proceedings, and she
must comport herself with ethical obligations imposed upon counsel. The
AFC’s role in cases is much deeper than just a functional one in
representing a client. AFC’s develop relationships with their clients
and must advocate for them without prejudicing their rights. See generally M.M. v. K.M., 62 Misc 3d 487 (Supreme Court Nassau County 2018).
The Court finds that while the AFC’s position on behalf of her client is not dispositive
on whether or not parties in a contested custody matter may discontinue
an action, her position on behalf of his or her client is entitled to
weight and consideration. The degree of weight and consideration depends
upon a multiplicity of factors, such as the age and maturity of the
child, but also should depend, to some degree, on whether or not there
are allegations of domestic violence and/or abuse or neglect in a
specific case. Such a logical conclusion is in-line with the ethical
rules promulgated to counsel and the Second Department’s reasoning in Matter of Newton v. McFarlane, supra. That weight and consideration, however, requires a fact-specific analysis.
In this instance, the child has a clear interest in the outcome of
the custody litigation between their parents. The child, through the
AFC, objects to the discontinuance of the action. The Court finds that
in this contested custody matter where the AFC, on behalf of her client,
objects to the discontinuance, the parties cannot simply discontinue as
a matter of right, but, rather, they need permission of the Court to
discontinue pursuant to CPLR § 3217(b).
In furtherance of the above, not all actions can fit the bill of a “one size fits all” motto. Matrimonial matters are unique (L.F. v. M.F., 78 Misc 3d 810 [Supreme Court Nassau County 2023]; Marcillo v. Hennessy, 46 Misc 3d 1225(A) [Supreme Court New York County 2015]). The Court has a duty to act as parens patriae. (C.M. v. E.M., 82 Misc 3d 198 [Supreme Court Nassau County 2023]; G.P. v. S.S., 78 Misc 3d 1221(A)[Supreme Court Nassau County 2023]; T.H. v. G.M., 81 Misc 3d 1205(A)[Supreme Court Nassau County 2023]). Where custody and visitation are in issue, the court’s role as parens patriae must not be usurped Clarence M. V. Martina M.,
68 Misc 3d 457 [Supreme Court Kings County 2020]). While children of
divorce are still children and the parents are still the parents, it is
the court’s role in parens patriae to protect the child. Clarence M., 68 Misc 3d at 469.
This Court is charged with protecting children that are the subject
of litigation before it and making determinations of what is in the best
interests of the child under the totality of the circumstances (Paige v. Paige, 202 AD3d 794 [2d Dept. 2022]). When the Court undertakes its role as parens patriae, it must put itself “… in the position of a wise, affectionate and careful parent…” (Finlay v. Finlay, 240 NY 429 [1925]).
The Court notes that while appointed by the Court, the AFC does not assert any judicial supervision of the child, she represents
the child. The only body exercising judicial supervision over this
child is the undersigned Justice. The Court finds that the existence of
the Temporary Order of Protection, in and of itself, is a basis for the
Court to decline to permit the discontinuance of this action at this
time. The Temporary Order of Protection is in favor of only the child.[3]
The Temporary Order of Protection is a “general refrain” in favor of
the child against the Plaintiff, and directs the Plaintiff to “…
refrain from covering the subject child’s throat, mouth, or nose that
creates an unreasonable risk to the health, safety, or welfare …” of
the subject child. The Court has yet to have a hearing on the underlying
petition, so it has yet to determine whether a family offense has been
committed. Without an adjudication on the merits of that petition, the
Court declines, at this time, to permit the discontinuance of this
action. The Court has also considered the fact that the Defendant
herself, one day prior to the execution of the Agreement, filed an
emergency application with the Court seeking to restore a prior order of
the Rockland County Family Court requiring supervised access for the
Plaintiff with the child. In that filing, she characterizes the
Plaintiff’s conduct as “reckless”, represents that the child “screams
and cries when she goes” to the Plaintiff, refuses to communicate with
her about the child’s health and mental issues, and characterizes the
Plaintiff’s conduct as “intentional or grossly negligent”. She also
claims that the Plaintiff has a “disregard for his child’s safety” and
that she left the Plaintiff after his “repeated threats” and “domestic
violence”. She also alleges that the Plaintiff obstructed the child’s
breathing.
Based upon those sworn allegations, it would be irresponsible and an abrogation of the Court’s duty as parens patriae
to permit the discontinuance of this action at this juncture. The Court
is compelled to find that a discontinuance of this proceeding, while
perhaps truly desired by the Plaintiff and Defendant, is not in the best
interest of the child, or appropriate to insure the child’s protection.
Accordingly it is hereby:
ORDERED, that the stipulation of discontinuance, contained
within the Arbitration Agreement, be and the same is hereby REJECTED and
shall be of no force and effect.
AGREEMENT TO ARBITRATE CUSTODY AND ACCESS
The Agreement, at Paragraph “2”, provides:
2. The parties agree to arbitrate certain disputes as
provided in this Agreement as follows: All issues that could be raised
and adjudicated in court, including pendente lite and temporary and permanent issues, so that matters in arbitration include but are not limited to custody (legal and physical), parenting time,
child support and the allocation of child-related expenses, spousal
support, division of assets and allocation of debt. These and all other
matters between the parties arising out of their marriage and divorce
shall be subject to the jurisdiction and determination by the Arbitrator
pursuant to the terms and procedures of this Agreement. The Arbitrator
shall determine whether an issue or dispute is within the scope of the
Arbitrator’s jurisdiction.
(emphasis added).
Disputes concerning child custody and visitation are not subject to arbitration, as the Court’s role as parens patriae must not be usurped (Goldberg v. Goldberg, 124 AD3d 779 [2d Dept. 2015]; Weisz v. Weisz, 123 AD3d 917 [2d Dept. 2014]; Hirsch v. Hirsch, 4 AD3d 451 [2d Dept. 2004]; Matsui v. Matsui, 200 AD3d 774 [2d Dept. 2021]).
The parties executed the Agreement which contains the following provisions:
4. The Arbitrator may issue a temporary or partial decision or injunction.
5. Judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof.
* * *
10. The Arbitrator shall retain jurisdiction over this
matter after publishing its award, and shall be authorized to modify the
award for any reason they deem proper.
* * *
19. In any arbitration proceeding involving custody or
parenting time issues, the parties shall have a record made of the
arbitration proceeding as to those issues. Such record shall include:
(i) a record of all documentary evidence; and (ii) all testimony shall
be recorded verbatim. A record of testimony may be made by one of the
following: (i) certified shorthand reporter; (ii) electronic recording;
or (iii) audio or video recording. The recording of the proceeding by
any of the means listed above shall be at the cost of the parties and
absent agreement of the parties, the Arbitrator shall decide the proper
allocation of the costs of the record.
* * *
25. In any proceeding involving custody, parenting time or
child support issues, parties shall require the Arbitrator to make
findings of fact and conclusions of law with respect to child-custody,
parenting-time, or child support issues. As to those issues, the
Arbitrator shall state in writing or otherwise record findings of fact
and conclusions of law with a focus on the best-interests standard …
Here, a review of the Agreement, both in toto and the salient
paragraphs above clearly indicate to the Court that the parties
contracted to provide the Arbitrator with the authority to determine
issues concerning custody and parental access inasmuch as those issues
are squarely in dispute in this case and inasmuch as the Agreement
provides that the parties agreed to arbitrate the issues of custody and
parenting time (see Agreement, Paragraph “2”). While parties to a
contract are basically free to make whatever agreement they wish, even
if the agreement appears to be unwise to a third party, they may not do
so in the presence of a violation of law or transgression of a strong
public policy. Rowe v. Great Atlantic & Pacific Tea Co., 46 NY2d 62 (1978).
The Court finds that delegating the decision on the issues of custody
and visitation to an Arbitrator violates public policy inasmuch as it
infringes upon the Court’s role as parens patriae.[4] Therefore, it is hereby:
ORDERED, that so much of the Agreement which purports to
delegate to an Arbitrator decision-making over the issues of custody and
visitation be and the same are hereby deemed NULL and VOID.
Any other relief requested not specifically addressed herewith is hereby DENIED.
This constitutes the Decision and Order of this Court.
[1] The Temporary Order of Protection remains in effect and on February 5, 2026, was extended through and included August 4, 2026.
[2] On Motion Sequence No.: 035.
[3]
Had the Temporary Order of Protection been, for instance, in favor of
only one of the parties against the other, and had there been no
children of this marriage, the Court may have reached a different
result.
[4]
While not necessarily before the Court on these submissions, the Court
also finds problematic the provision of Paragraph “2” of the Agreement
which provides that the parties are to arbitrate “… [a]ll issues that
could be raised and adjudicated in court …” The phrase “all issues”
certainly includes the adjudication on the temporary order of protection
and whether or not a family offense has been committed. The Court finds
that this provision, to the extent it purports to be an agreement to
adjudicate the temporary order of protection, is invalid as a
transgression of public policy. The Court does not finds that whether or
not a family offense has been committed and whether or not a temporary
or final order of protection should be issues is a dispute subject to
arbitration.”