Johnson v. Johnson ( 2010 )

Justice LONG

delivered the opinion of the Court.

Recently, in Fawzy v. Fawzy, 199 N.J. 456, 973 A.2d 347 (2009), we held that the constitutional guarantee of parental autonomy includes the right of parents to choose arbitration as the forum in which to resolve their disputes over child custody and parenting time. Id. at 461-62, 973 A.2d 347. In that case, we set forth the prerequisites for an enforceable arbitration agreement and the methodology by which an arbitration award in the child custody setting may be judicially reviewed. Ibid. In Fawzy, which was decided under New Jersey’s version of the Uniform Arbitration Act (Arbitration Act), N.J.S.A. 2A:23B-1 to -32, we declared, in recognition of our parens patriae authority, that in addition to the remedies provided in the Arbitration Act, an arbitrator’s award is subject to judicial review if a party establishes that the award threatens harm to a child. Fawzy, supra, 199 N.J. at 478-79, 973 A.2d 347. To ensure a basis on which to evaluate a claim of harm, we required that a record of all documentary evidence be kept; testimony be recorded verbatim; and that an award, including findings of fact and conclusions of law, issue. Id. at 480-81, 973 A.2d 347.

The case before us was not decided under the Arbitration Act, but under the New Jersey Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A 2A:23A-1 to -19, which conforms in many respects to the procedures we set forth in Fawzy. The trial judge ruled that the record was adequate for review and confirmed the arbitration award. However, because of the absence of a verbatim transcript, the Appellate Division reversed the trial judge’s confirmation order and remanded the matter for a plenary hearing. Johnson v. Johnson, 411 N.J.Super. 161, 174-76, 984 A.2d 912 (App.Div.2009).

We now reverse. Although we agree with the Appellate Division that the principles established in Fawzy were intended to be applicable across the board to all child custody arbitrations, we believe that the absence of a verbatim transcript was not fatal in this ease. The purpose behind Fawzy’s procedural safeguards was to assure a basis upon which meaningful judicial review of an arbitration award can occur in a case in which harm to a child is claimed. What Fawzy requires is the existence of an arbitration record against which the claim can be tested. That is so whether the arbitration is conducted under the Arbitration Act, APDRA, or under specific procedures agreed upon by the parties.

In this case, the arbitrator produced a complete record of all evidence he considered, a detailed recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion on reconsideration. That satisfies the spirit of Fawzy and constitutes an acceptable substitute for a verbatim transcript.

I.

The case arose as follows: David Johnson and Molly V.G.B. Johnson were married on October 26, 1994, and divorced on August 16, 2005. Two children were born during the marriage: Amelia, on February 9, 2001, and Elsie, on January 30, 2003. In May 2005, the couple separated; Ms. Johnson elected to move out of the marital home and ceded residential custody of the children to Mr. Johnson. From May 2005 until November 2005, Ms. Johnson spent parenting time at the marital residence while she lived in an apartment with roommates. When she purchased her current home, the children began to spend time with her there.

The final judgment of divorce incorporated a May 24, 2005, property settlement agreement, which provided that the parties would share joint legal custody of the children and that Mr. Johnson would continue as the residential custodial parent. According to the informal parenting schedule the parties agreed on, Mr. Johnson had the children from Sunday evening to Tuesday evening (5:30 p.m.); Wednesday evening to after school Thursday; and alternate weekends from Friday evening until Sunday evening. Ms. Johnson had the children from Tuesday evening until Wednesday evening (5:30 p.m.); Thursday after school until Friday evening (5:30 p.m.); and alternate weekends from Friday evening until Sunday evening. Holidays were alternated and each party had one week of vacation with the children per year.

Following the divorce, the parties encountered difficulties with the parenting schedule and thereafter consented to resolving those issues in arbitration. Pursuant to a consent order, the parties chose to be governed by the APDRA. Their agreement was extremely thorough and explained what the parties viewed as the issue and how they intended the APDRA to operate. The agreement began by identifying the issue:

IA] The parties are the parents of AMELIA JOHNSON, age six, and ELSIE JOHNSON age four. For several years [they] have experienced on-going difficulties in resolving differing parenting approaches and Parenting Time Schedules that will advance their children’s best interests.

The agreement went on to detail the parties’ expectations regarding how the case was to be conducted:

IB] To resolve parenting differences and Parenting Time scheduling issue[s] in futuro, the parties have agreed to utilize the Arbitration services of MARK WHITE, Ph.D. It is not the intent of the parties and recognized and acknowledged that Dr. WHITE shall not provide any therapeutic or other psychological services in this ease; as serving in this dual role would place Dr. WHITE in a conflict situation. Rather it is envisaged that Dr. WHITE shall initially meet with the parties and counsel; and thereafter meet with both parties on one or more occasions as he shall deem necessary in his sole discretion. Dr. WHITE shall receive position papers of the parties which may be prepared with the assistance of and prepared by their attorneys. The position papers may include examples of the difficulties the parties have faced, citing examples, findings of facts that are requested to be made by Dr. WHITE, as well as [the] law of the State of New Jersey applicable to such facts. Dr. WHITE will observe the children in the presence of the parents. With this input and without the necessity of taking formal testimony of the parties in the presence of their attorneys, it is anticipated that Dr. WHITE will have sufficient information to craft a decision intended] to resolve the parenting issues and scheduling issues that currently [exist]. It is not envisaged that Dr. WHITE will require formal Arbitration in the presence of both parties and counsel to make findings of fact in this ease; although he shall have the power and authority to do so, in his sound discretion. It is required that Dr. WHITE create a scheduling calendar, with the intent of limiting future parenting schedule controversy to a minimum. The fact that testimony of the parties in each other’s presence and counsel’s presence was not adduced by the Arbitrator/Umpire shall not constitute a good cause grounds for reversing the Arbitration Award.

In addition, the agreement vested the arbitrator with the duty to make findings of relevant material facts and legal determinations; provided that the arbitrator would make an award on all submitted issues in accordance with applicable principles of New Jersey substantive law, as required by N.J.S.A 2A:23A-12(e); afforded a right to file a motion for reconsideration of the award and for modification, pursuant to N.J.S.A. 2A:23A-12(d); limited the parties’ right to appeal to the issue of whether the arbitrator properly applied the law to the factual findings and issues presented for resolution; and specified that there would be no transcript of proceedings and that the detailed findings of the arbitrator would constitute the record, as supplemented by the written certified statements submitted by the parties prior to arbitration. The agreement was explicit that testimony outside a party’s or counsel’s presence would not constitute good cause grounds for reversing any award. Finally, the parties waived their rights to a trial on the merits and preserved the right to appeal the award within the constraints of the APDRA.

As anticipated by the agreement, over the course of several months the arbitrator conducted various interviews, including those with Mr. Johnson (multiple), his new wife, Sara Johnson, Ms. Johnson (multiple), Amelia and Elsie, a psychologist (Dr. Sandra Sessa), and a clinical social worker (Ms. Cheryl Daniel) who had previously counseled the parties. In addition, he observed the children in both home settings and reviewed their school records.

In April 2008, the arbitrator issued his award. At the outset, he detañed the parties’ proposals, which were not vastly different from what was in effect at the time:

Proposal of Mr. Johnson

The children would be at the home of Mr. Johnson Sunday night through Friday afternoon, and every other weekend. Alternation of parenting time during the two extended winter and spring breaks from school. Alternation of holidays. One week vacation with each parent. Sunday evening overnights with Ms. Johnson before all Monday holidays when the children are off from school. Children to be returned by noon Monday. Dinner with Ms. Johnson one night during the week, to be scheduled “based upon the best arrangement factoring everyone’s schedule.”

Proposal of Ms. Johnson

The weekend the children are with Ms. Johnson should be extended to include Sunday overnights, and then drop off at schools Monday mornings. Scheduling of activities for the children only upon mutual consent of both parents. Pick up of the children from schools on Thursdays.

The arbitrator then recounted the substance of every interview and observation he undertook, including a particularized recitation of the parties’ claims about their different approaches to parenting and the problems with scheduling transitions. Mr. Johnson, who remains angry at his former wife over the divorce, contended that she is unreliable and frequently late picking up the children; that she tends to drop the children off without remembering to bring their things; that the children are not dressed and ready when he picks them up or when their mother drops them off; that they are not ready for school on mornings after they stay with their mother; that they eat snacks at her house before dinner at his house; that Ms. Johnson creates emotionally dramatic transfers; that she is routinely five to ten minutes late; that she is more than ten minutes late almost twenty percent of the time; and that she has issues with boundaries (for example, she allows the girls to sleep with her) that cause problems in his home. The interview •with Mr. Johnson’s new wife, Sara Johnson, supported Mr. Johnson’s claims regarding Ms. Johnson’s unreliability.

Ms. Johnson countered that her former husband is rigid; has excessive control over the children’s schedules; arranges activities during her parenting time; and that he has otherwise decreased the amount of time the children spend with her. She further claimed that he over schedules the children (e.g., dance, violin, swimming, T-ball, soccer), and that there is poor communication between the parties in that Mr. Johnson fails to convey essential information to her and verbally attacks her when the subject of increased parenting time comes up.

Ms. Johnson also contended that she had made the children late only a few times in two years; that the children benefit from the less structured, more creative environment at her home; that Mr. Johnson does not give her open phone access to the children; and that he does not consult her on scheduled activities. Following that interview, Ms. Johnson sent the arbitrator a long letter reiterating all of her concerns, in particular, that her former husband’s actions have the effect of “marginalizing” her. The arbitrator recounted the contents of the letter in his decision.

The home visits, according to the arbitrator, were uneventful— with both homes, though very different, fully appropriate for the girls. The arbitrator perceived the girls as well-adjusted, but affected by the parenting conflicts and the amount of moving around required.

The arbitrator reported Dr. Sessa’s conclusion that the parties are opposite in nature, Ms. Johnson—“artsy, come-a-day, go-a-day”—and Mr. Johnson—“structured, highly organized, logical and linear.” Yet, the psychologist expressed that she had no concern about either party’s parenting abilities, though Ms. Johnson’s organization could be improved upon. The psychologist did note significant animosity between the parties.

The arbitrator also detailed the results of his consultation with Ms. Daniel who had seen the parties several times in 2006. Like the psychologist, she noted the obvious stylistic differences between the parties and Mr. Johnson’s continuing emotional response to the divorce. Despite Mr. Johnson’s efforts to the contrary, she likewise found no basis to question Ms. Johnson’s parental capacity. The arbitrator recapitulated the children’s scholastic records from the 2007-2008 school year, which revealed that Amelia was tardy on six days, all of which followed overnights with her mother.

The arbitrator concluded that both parties are decent, well-intentioned, non-pathological parents and that the children are positively developing in their care. He proceeded to evaluate the case in terms of how the parties’ behavior imposed on their daughters’ experiences. He noted that it was his “fervent hope” that his involvement would “result in the prevention of escalation of the family system factors that could elevate the probability of [the girls] developing psychological symptoms later in their childhoods.”

To accomplish that goal, the arbitrator stated that Ms. Johnson needed to accept responsibility for leaving the marriage and for her lackadaisical approach, evidenced by her tardiness and inefficiency which prevented a “more robust co-parenting alliance,” and that Mr. Johnson needed to confront and resolve his anger towards Ms. Johnson over the divorce. In addition, the arbitrator reasoned that the children were too young to experience so many transitions, particularly in light of the “intrinsic tension” between their parents and the “dissimilarity of the home cultures.” Accordingly, he set forth a decision “[i]n the hope that both parties will accept [the provisions] in the child-protective spirit in which they are offered.”

With a view toward carrying out what the parties had commissioned him to do—“create a scheduling calendar, with the intent of limiting future parenting schedule controversy to a minimum,” the arbitrator increased the amount of uninterrupted weekly time the children spent with Mr. Johnson, but extended the weekend and holiday time spent with Ms. Johnson. Specifically, the arbitrator expanded Ms. Johnson’s weekends with the children to Sunday overnights and limited her weekday overnights to Wednesdays only. He compensated for the time that the girls lost vrith their mother by providing her with a majority of three-day, four-overnight weekends and additional time during school vacations.

In addition, he referred Ms. Johnson to a neuropsychologist for an evaluation for Attention Deficit Hyperactivity Disorder based upon her “time management and attentional difficulties.” He also referred Mr. Johnson to counseling for his unresolved emotions related to the divorce. Specifically addressing Ms. Johnson’s concern that the children were overly programmed, the arbitrator limited them to one scheduled activity in a given season.

The award left open Ms. Johnson’s request for expanded time with the children to be reconsidered after she had undergone her evaluation and demonstrated that Amelia could attend school for three consecutive months without receiving a tardy notice. The decision also permitted future meetings between the arbitrator and the parties starting around October 1, 2008, to consider further modifications.

Ms. Johnson filed a motion for reconsideration of the entire decision or clarification of the extent of her vacation time custody. The gravamen of the motion was that she did not “feel as though [her] viewpoints and concerns were considered____” In response, the arbitrator prepared an eleven-point decision in which he reaffirmed his conclusion that both parents are well-intentioned and deeply invested in their children’s welfare. He noted that he considered the extent and severity of both parties’ accusations in a neutral fashion, and recounted Ms. Johnson’s basic allegation that Mr. Johnson is overly controlling and Mr. Johnson’s counter-allegation that Ms. Johnson is unreliable. He pointed to his recommendation that Mr. Johnson seek psychotherapy and that Ms. Johnson submit to a neuropsychological evaluation because of the empirical data that Amelia’s six tardies in first grade occurred after nights she spent with her mother.

The arbitrator explained that changes in the schedule were based on the children’s needs rather than any conclusion about Ms. Johnson’s ability to parent. It was his explicit intention “to prevent the post-divorce version of the Johnsons’ inability to eollaboratively solve problems from metastasizing to a level that will represent a pathogenic risk to their beautiful daughters.” The arbitrator stated that divorce and remarriage “necessitates the need to more clearly establish boundaries between Mom’s house and Dad’s house.”

As an addendum to the decision, the arbitrator delayed implementation of the new schedule from the original decision because “stresses attendant to changing Amelia’s schedule so late in the school year” outweighed the benefits of implementation. The arbitrator remained open to meeting with the parents prior to the start of the next school year to rebalance the children’s time at each home and determine the advisability of a parent coordinator. He observed that the “ultimate goal ... was to foster good faith in their post-divorce parenting alliance. Otherwise, a more adversarial and conflict-enhancing option would have been selected for resolution of their custody/visitation issues.” He noted that such a climate of cooperation would be of immeasurable value to the girls’ psychological development.

In July 2008, Ms. Johnson sought the arbitrator’s removal based on the Appellate Division’s decision in Fawzy v. Fawzy, 400 N.J.Super. 567, 948 A.2d 709 (App.Div.2008), which had held that parties cannot agree to binding arbitration in a custody matter. Id. at 571-72, 948 A.2d 709. In response, Mr. Johnson filed a motion to confirm the arbitrator’s decision. Ms. Johnson filed a cross-motion requesting modification of the parenting time schedule or a plenary hearing to determine custody and parenting time.

Judge Robert A. Coogan presided over the proceedings in the Family Division. After a hearing, he confirmed the arbitrator’s award. In ruling, the judge examined the award in terms of the children’s interests and characterized both parties as “good parents.” Because he determined that the girls “have a difficult time transitioning from one house to another,” the judge faulted the prior custody schedule with its frequent shuttling back and forth several times during the week and concluded that it was reasonable for the arbitrator to extend Ms. Johnson’s weekends and expand Mr. Johnson’s weekday overnights. Further, he noted that the arbitrator was evenhanded in recommending that Ms. Johnson see a neuropsychologist specializing in Attention Deficit Hyperactivity Disorder and that Mr. Johnson attend counseling to address his unresolved anger. Finally, the judge concluded that there was a sufficient record made by the arbitrator to permit judicial review. Therefore, he denied Ms. Johnson’s parenting schedule proposal and both parties’ counsel fee requests and confirmed the arbitrator’s award.

Ms. Johnson appealed. Meanwhile, we issued our opinion in Fawzy. Based on Fawzy, the appellate panel reversed the trial court decision and remanded the case for a plenary hearing because the procedural requirements set forth in Fawzy were not satisfied. Johnson, supra, 411 N.J.Super. at 175, 984 A.2d 912. In particular, because there was no verbatim record of testimony, the panel concluded that the trial court had no basis on which to evaluate the threat of harm to the children or confirm the award. Ibid. The panel determined that this case was not distinguishable from Fawzy, which involved the Arbitration Act, and not the APDRA, because the acts “are similar” and “neither is immune to public policy concerns.” Ibid. We granted Mr. Johnson’s petition for certification. Johnson v. Johnson, 202 N.J. 43, 994 A.2d 1039 (2010).

II.

The parties differ essentially over the applicability of Fawzy to this APDRA arbitration; over whether, if applicable, Fawzy requires reversal on the basis of the absence of a verbatim transcript; and over whether Ms. Johnson’s claims of harm were sufficient to trigger substantive judicial review.

We begin with a recap of Fawzy. On the day that their divorce trial was to occur, the Fawzys agreed to binding arbitration and selected the recently-appointed guardian ad litem to serve as the arbitrator on all issues. Fawzy, supra, 199 N.J. at 462-63, 973 A.2d 347. In the parties’ interim arbitration order, they agreed to be governed by the Arbitration Act. Id. at 465, 973 A.2d 347.

Between the time that the arbitration proceedings began and the taking of testimony, Mr. Fawzy filed an order to show cause seeking to restrain the arbitrator from deciding any parenting-time or custody issues on the grounds that our prior decision in Faherty v. Faherty, 97 N.J. 99, 477 A.2d 1257 (1984), precluded arbitration of such issues. Fawzy, supra, 199 N.J. at 465, 973 A.2d 347. He further claimed that he had been rushed into agreeing to arbitrate, and had done so because he believed he would be viewed as uncooperative otherwise. Ibid. The judge denied the application. Thereafter, the arbitrator awarded the parties joint legal custody and designated Mrs. Fawzy as the primary residential parent. Id. at 466, 973 A.2d 347. Mr. Fawzy filed a second order to show cause, arguing that he did not understand the rights he was waiving when he agreed to arbitrate. Ibid. The trial judge denied that application and confirmed the award. Ibid.

Mr. Fawzy appealed, arguing that permitting parties to submit custody issues to binding arbitration deprives the court of exercising its parens palriae jurisdiction to protect children’s best interests. Ibid. The Appellate Division agreed, reversed the trial court’s ruling, and remanded the case for a plenary hearing on the custody and parenting-time issues. Ibid. On certification, we affirmed that judgment, although on different grounds. Id. at 485, 973 A.2d 347.

In Fawzy we recognized the benefits of arbitration in the family law setting and, in particular, the potential to “minimize the harmful effects of divorce litigation on both children and parents.” Id. at 472, 973 A.2d 347. We further noted the wide-ranging scholarly support for such arbitration that had developed since the issue was left open in Faheity. Id. at 471-72, 973 A.2d 347.

In ruling, we reaffirmed the constitutional right to parental autonomy in child-rearing:

Deference lo parental autonomy means that the State does not second-guess parental decision making or interfere with the shared opinion of parents regarding how a child should be raised. Nor does it impose its own notion of a child’s best interests on a family. Eather, the State permits to stand unchallenged parental judgments that it might not have made or that could be characterized as unwise. That is because parental autonomy includes the “freedom to decide wrongly.”

[Id. at 473-74, 973 A.2d 347.]

At the same time, we recognized that “[t]he right of parents to the care and custody of their children is not absolute,” id. at 474, 973 A.2d 347 (quoting V.C. v. 163 N.J. 200, 218, 748 A.2d 539 (2000)), and that “the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child.” Id. at 474-75, 973 A.2d 347 (footnote omitted). As we said in Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203 (2003), “interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child.” Id. at 115, 827 A.2d 203. Indeed, that harm standard “is a constitutional necessity because a parent’s right to family privacy and autonomy are at issue.” Id. at 118, 827 A.2d 203. In short, potential harm to a child is the constitutional imperative that allows the State to intervene into the otherwise private and protected realm of parent-child relations. With that as a backdrop, we concluded that

the bundle of rights that the notion of parental autonomy sweeps in includes the right to decide how issues of custody and parenting time will be resolved. Indeed, we have no hesitation in concluding that, just as parents “choose” to decide issues of custody and parenting time among themselves without court intervention, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen.

[Fawzy, supra, 199 N.J. at 477, 973 A.2d 347.]

We then turned to the standard of review of a child custody arbitration ¿ward and concluded that

where no harm to the child is threatened, there is no justification for the infringement on the parents’ choice to be bound by the arbitrator’s decision. In the absence of a claim of harm, the parties are limited to the remedies provided in the Arbitration Act. On the contrary, where harm is claimed and a prima facie case advanced, the court must determine the harm issue. If no finding of harm ensues, the award will only be subject to review under the Arbitration Act standard. If there is a finding of harm, the presumption in favor of the parents’ choice of arbitration .will be overcome and it will fall to the court to decide what is in the child’s best interests.

[Id. at 478-79, 973 A.2d 347 (citation omitted).]

However, we expressed concern in Fawzy over the court’s ability to intervene, where necessary, to prevent harm to the child,

in light of the fact that the Arbitration Act does not require a full record to be kept of arbitration proceedings. Nor does it compel the recordation of testimony or a statement by the arbitrator of his findings and conclusions beyond the issuance of an award, N.J.S.A. 2A:23B-19(a), although parties are free to agree upon other procedures, see N.J.S.A. 2A:23B-4.

[Id. at 480, 973 A.2d 347.]

Because of that, and because we determined that an empty record, like the one before us in Fawzy, could provide no basis for a harm review, we said:

We therefore direct that when parties in a dissolution proceeding agree to arbitrate their dispute, the general rules governing the conduct of arbitration shall apply, N.J.S.A. 2A:23B-1 to -32. However, in respect of child-custody and parenting-time issues only, a record of all documentary evidence shall be kept; all testimony shall be recorded verbatim; and the arbitrator shall state in writing or otherwise record his or her findings of fact and conclusions of law with a focus on the best-interests standard. It is only upon such a record that an evaluation of the threat of harm can take place without an entirely new trial. Any arbitration award regarding child-custody and parenting-time issues that results from procedures other than those that we have mandated will be subject to vacation upon motion. [Id. at 480-81, 973 A.2d 347.J

We then set forth the minimum elements of an agreement to arbitrate a child custody dispute, including that it

must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1. In addition, it must state in clear and unmistakable language: (1) that the parties understand their entitlement to a judicial adjudication of their dispute and are willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree to those limitations; (3) that the parties have had sufficient time to consider the implications of their decision to arbitrate; and (4) that the parties have entered into the arbitration agreement freely and voluntarily, after due consideration of the consequences of doing so.

[Id. at 482, 973 A.2d 347.]

Because the record in Fawzy was inadequate to assure that the parties fully understood the consequences of removing their custody dispute from the judicial arena into binding arbitration, we affirmed the decision of the appellate panel that had reversed the arbitration award and remanded for a new trial. Id. at 483, 485, 973 A.2d 347.

As a matter of practice, Fawzy plays out this way: When a child custody or parenting time arbitration award issues, one party will ordinarily move for confirmation. If there is no challenge, the award will be confirmed. If there is a challenge that does not implicate harm to the child, the award is subject to review under the limited standards in the relevant arbitration statute or as agreed by the parties. If a party advances the claim that the arbitration award will harm the child, the trial judge must determine whether a prima facie case has been established. In other words, is there evidence which if not controverted, would prove harm? If that question is answered in the negative, for example, where a claim of harm is insubstantial or frivolous (e.g., not enough summer vacation), the only review available will be that provided in the relevant arbitration act or as otherwise agreed. If, on the other hand, the claim is one that, if proved, would implicate harm to the child, the judge must determine if the arbitration record is an adequate basis for review. If it is, the judge will evaluate the harm claim and, if there is a finding of harm, the parents’ choice of arbitration will be overcome and it will fall to the judge to decide what is in the children’s best interests. If the arbitration record is insufficient, the judge will be required to conduct a plenary hearing. ■ That is the backdrop for our inquiry.

III.

We turn first to Mr. Johnson’s contention that Fawzy was intended to apply to Arbitration Act proceedings and not those conducted under APDRA, a notion with which we disagree. To be sure, there are differences between the Acts. The Arbitration Act does not require any particular procedures, mandate discovery, compel the maintenance of a record, command a statement by the arbitrator regarding his findings and conclusions, or an expression of the reasons why he reached the result that he did. See N.J.S.A. 2A:23B-1 to -32.

The APDRA differs from the Arbitration Act in that it is designed to balance “streamlined procedures necessary for efficient repose” with “substantive safeguards necessary to protect public rights.” John V. O’Hara, Note, The New Jersey Alternative Procedure for Dispute Resolution Act: Vanguard of a “Better Way”?, 136 U. Pa. L.Rev. 1723, 1751 (1988). To that end, the APDRA includes procedures for factual development through discovery, N.J.S.A 2A:23A-10, -11(e), the taking of expert witness testimony, N.J.S.A 2A:23A-ll(f), the submission by the arbitrator of a written opinion stating findings of fact and conclusions of law, N.J.S.A. 2A:23A-12(a), and requires that awards be in accordance with applicable legal principles, N.J.S.A 2A:23A-12 (e), - 13(c)(5), -13(e)(4).

Despite those differences, we are in agreement with the Appellate Division that the procedures we put in place in Fawzy to assure an adequate record against which to test a child custody arbitration award are applicable to all child custody arbitrations, whether conducted under the Arbitration Act, APDRA, or some other agreed-upon methodology. As we have said, the parents’ constitutional right to decide how to resolve their child-rearing disputes must give way to our constitutional duty to protect children from harm. Thus, where a prima facie claim of harm is advanced, our substantive review is compelled. That review can only take place on a full record. That is the principle of Fawzy and it is applicable regardless of the statute under which the arbitration is conducted. The issue is the existence of a record that is sufficient to permit judicial review.

Because there was no record whatsoever in Fawzy, no review could take place. That is not the case here. Here, the arbitrator did exactly what was anticipated by the parties and, in accordance with the provisions of the APDRA, created a full record of what transpired. In crafting his award, he gave a complete recitation of what the parties told him and what he heard and saw during his observations. His opinions, both on the original award and on reconsideration, were painstakingly detailed and, like the trial judge, we have absolutely no reservation in declaring the record he created as adequate to review the arbitration award.

In the final analysis, whether an arbitration is conducted under the Arbitration Act or APDRA is not the issue of consequence. What matters is the state of the record. Obviously, a verbatim transcript of a trial-type hearing will satisfy Fawzy, assuming the other requirements of that case are met. However, where, as here, the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription. It goes without saying that it would behoove any arbitrator tasked with resolving a child custody or parenting-time issue to prepare a record, at least as detailed as the one we have approved today. Such preparation will avoid a judicial replay of the entire matter in the event of a substantial claim of harm.

IV.

We turn, finally, to Mr. Johnson’s contention that Ms. Johnson’s claim of harm was insufficient to tee up the issue of entitlement to judicial review. We agree. For that conclusion, we hearken back to our directive in Fawzy:

Mere disagreement with the arbitrator’s decision obviously will not satisfy the harm standard. The threat of harm is a significantly higher burden than a best-interests analysis. Although each case is unique and fact intensive, by way of example, in a ease of two fit parents, a party’s challenge to an arbitrator’s custody award because she would be “better” is not a claim of harm. Nor will the contention that a particular parenting-time schedule did not include enough summer vacation time be sufficient to pass muster. To the contrary, a party’s claim that the arbitrator granted custody to a parent with serious substance abuse issues or a debilitating mental illness could raise the specter of harm. Obviously, evidential support establishing a prima facie case of harm will be required in order to trigger a hearing. Where the hearing yields a finding of harm, the court must set aside the arbitration award and decide the case anew, using the best-interests test.

[Fawzy, supra, 199 N.J. at 479, 973 A.2d 347.]

Here, neither party raised any real claim of unfitness. They agreed that there was “a lot of love in both homes and consistency between the homes in parenting, relative to a sense of respect, the importance of getting work done and manners.” The issue was always parenting style, not capacity, and the arbitrator’s commission was to create a schedule that would minimize conflicts and problems in the face of such different parenting styles. His new schedule was nothing more than a tweaking of an agreed-upon parenting time schedule to minimize disruption for the children. Simply put, that does not begin to approach a showing of harm sufficient to warrant judicial inquiry beyond what is provided in the APDRA.

V.

One final note. Our holding that Ms. Johnson’s contentions fell short of triggering a substantive judicial review of the arbitration award is without prejudice to her pursuing an application for expanded parenting time as anticipated in the arbitrator’s award. Much has transpired since the award issued in April 2008. The girls are growing up and how the parties have fared with the parenting time schedule during the interim period should be factored into any revised award. Either party may request such reconsideration.

VI.

For the foregoing reasons, the judgment of the Appellate Division is reversed and the order of the trial judge confirming the arbitration award is reinstated.