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Shabbat Parashat Pinchas| 5764

Pninat Mishpat

Appeal of Arbitration Agreement Regarding Child Custody - Based on Piskei Din Rabbaniim XVIII, pp. 103-107
Case: A couple signed an arbitration agreement, as part of their divorce settlement, to settle any questions that will arise in reference to child custody through a certain group of competent arbiters. After the arbiters decided not to transfer custody of the child to the father at a certain age, as had been foreseen in the original agreement, the father appealed to beit din to adjudicate instead of the arbiters, saying that the arbiters should not have jurisdiction.
Decision: When one accepts upon himself extraordinary rules of adjudication (such as allowing relatives to serve as dayanim), there are different opinions as to how this works. The Ra’avan sees the agreement as an obligation to pay or relinquish rights to money or property in accordance with the decisions reached in the unconventional manner. The Nimulei Yosef is of the opinion that one need not obligate oneself in money but must just confirm his willingness to be bound by the given legal process.
 However, in this case, there was no agreement to an unconventional judicial process. The panelists who were chosen are valid to adjudicate the matter. All that was needed was to determine which, of a variety of possible panels, would be the one to hear the case. In such a case, a lower level of agreement is necessary to finalize the matter, including writing down the dayanim’s names (Choshen Mishpat 13:2) and perhaps even if they starting to hear the case (Rama, ad loc.). Once the arbiters began to hear the case, their jurisdiction applied to all related matters, even those that did not arise in the first meetings. Therefore, the father cannot question their authority well into the process.
 Minority decision: The agreement of the sides to a certain arbitration panel is binding only when the case is a monetary dispute between the two sides. However, a question of child custody depends on what is determined to be the child’s best interest, objectively, and the parents are only legal guardians in this context. Therefore, either side can demand that the normal authorities now decide what the welfare of the child dictates, irrespective of previous decisions.
 Response of Majority Opinion: If there were reason to believe that the arbiters made a mistake, then beit din could overrule their decision. However, since they are not only a legitimate panel, but have more expertise and experience in the circumstances of this specific case than any beit din, there is no reason to take the matter out of their hands.
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This week's Hemdat Yamim is dedicated
 to the memory of Mina Presseron the occasion of her first yahrzeit.
Her life exemplified growth through learning.

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