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Cardozo Journal of Conflict Resolution

Abstract

This Note aims to explore the reasoning behind the state's reluctance to accept arbitration, including that of the bet din, as a means of resolving child custody disputes. The Note highlights the advantages of arbitration, both in general and when used to determine child custody. The Note examines the arguments proffered by the courts to justify the view that they, and not outside arbitrators, best resolve child custody battles. This Note argues that when two parties agree to arbitrate their divorce settlement before a bet din, the award should be given the same deference as a bet din's resolution of other civil and commercial matters. This Note maintains that batei din (plural of bet din), through their application of halakhah (Jewish law), do in fact employ the "best interest of the child standard" to reach their decisions.

In drawing this conclusion, the Note first discusses the background and functions of the bet din and explains alternative dispute resolution's favored status in New York. The Note then explicates the standard that New York courts use in determining which party is awarded custody in a child custody dispute and explores the public policy arguments underpinning the courts' position. Lastly, the Note delves into how batei din apply Jewish law in resolving custody disputes and argues that Jewish law and secular law coincide to the point that rabbinic courts are capable of rightfully adjudicating child custody disputes.

Disciplines

Constitutional Law | Courts | Dispute Resolution and Arbitration | Law

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