Christine (W), and Samih (H), were married on September 28, 1991, and have two children born in 1996 and 1997. W filed a complaint for divorce. Leonard R. Busch, Esq., was appointed as guardian ad litem for the children. The day on which the trial on all issues was to take place, the parties notified the judge that they had agreed to arbitrate in place of proceeding to trial. Judgment of divorce was entered, including reference to the agreement to arbitrate. While the arbitration process was in progress, H filed an order to show cause seeking to restrain Busch from issuing a custody or parenting-time award, on the grounds that those issues could not, as a matter of law, be arbitrated, and that, in any event, he was rushed and pressured into agreeing to the arbitration. Busch issued a custody and parenting-time award on April 4, 2007, which granted the parties joint legal custody with primary physical custody to W; designated W as the parent of primary residence; and granted H weekday, weekend, vacation, and holiday parenting time. Arbitration continued on the remaining financial issues. H then filed a second order to show cause, that time to vacate the arbitration award and to disqualify Busch from any further participation in the case. The trial judge denied that application after a hearing and entered an amended judgment of divorce on May 14, 2007, which confirmed the award; he also ordered both H and W to comply with its terms.
H appealed, contending that parties cannot submit custody issues to binding arbitration because doing so deprives the court of its parens patriae obligation to assure the best interests of the child.