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CUSTODY MATTERS ARE NOT SUBJECT TO ARBITRATION, DESPITE A PROVISION TO THAT EFFECT IN THE STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) despite the stipulation calling for arbitration, custody matters are not subject to arbitration; and (2) upon remittal the court must determine whether New York has jurisdiction and, if so, whether New York is an inconvenient forum. Plaintiff is a citizen of the US and defendant is a citizen of Israel. The parties lived together in New York:

The Supreme Court erred in declining to exercise jurisdiction over the parties’ custody/parental access disputes on the basis that their stipulation of settlement, which was incorporated but not merged into their judgment of divorce, contained an arbitration clause … . “Disputes concerning child custody and visitation are not subject to arbitration as ‘the court’s role as parens patriae must not be usurped'” … .

Moreover, since the Supreme Court has made previous custody determinations concerning the parties’ children, the court, prior to determining whether it has subject matter jurisdiction, must first determine whether the defendant and the children have a significant connection with New York and whether there is substantial evidence in New York … . … If, upon remittal, the court determines … that it retains exclusive, continuing jurisdiction over the custody and parental access issues, it may exercise that jurisdiction, or it may decline to do so if it determines … that New York is an inconvenient forum … . Matsui v Matsui, 2021 NY Slip Op 06843, Second Dept 12-8-21

 

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