Agur v. Agu

298 N.Y.S.2d 772 (A.D. 1969)

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Nature of the Case

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Facts

H and W got a Mexican divorce decree which incorporated a surviving separation agreement which had been executed by the parties in 1966. The agreement called for the custody of their minor child to be determined under Jewish religious law by three persons, one to be chosen by the petitioner, one to be chosen by the respondent, and the two so designated to choose an orthodox rabbi as the third, all whom are to be versed in Jewish religious law; and that, if the three arbitrators cannot agree, the decision of two shall be final. Initial custody until the boy was six was to be with W. Less than a month before the child attained his sixth birthday, W began this proceeding for the custody of the child. W alleged that the best interests of the child was for him to be in her custody. W claims that the arbitration clause compelled the award of the custody of the child to be founded on religious tenets solely; and she said that that constraint made the clause unenforceable. The court granted a stay of the proceeding and directed arbitration.