July 2004

Arbitration of Child Custody/Support

Laura W. Morgan

Last month, the Supreme Court of Michigan decided Harvey v. Harvey, ___N.W.2d___, 2004 WL 1283359 (Mich. 6/9/2004). In this case, the court held that even when parties initially elect to submit a custody dispute to an arbitrator or to the friend of the court, they cannot waive the authority that the Child Custody Act confers on the circuit court to decide the best interests of the child as it relates to custody. As the Court of Appeals had previously explained, parties “cannot by agreement usurp the court’s authority to determine suitable provisions for the child’s best interests.” Permitting the parties, by stipulation, to limit the trial court’s authority to review custody determinations would nullify the protections of the Child Custody Act and relieve the circuit court of its statutorily imposed responsibilities. Thus, while the parties can agree to arbitration, such arbitration cannot be binding, and the trial court must review the matter de novo.

This case is in keeping with a trend finding that parents cannot agree to binding arbitration in matters of child custody and support. Rather, if the parties agree to such binding arbitration, the agreement is either (a) void completely, or (b) enforceable, but only to the extent that the arbitrator’s decision is completely reviewable by the court to determine the best interests of the child.

A. Agreements Void

In Nashid v. Andrawis, 83 Conn. App. 115, 847 A.2d 1098 (2004), the court reached the conclusion that a trial court cannot delegate its judicial authority to determine the best interests of the child. Thus, a provision in divorce judgment submitting to an attorney for the minor children for binding arbitration any controversy that may develop regarding parenting schedule constituted an improper delegation of judicial authority and was void. The trial court had statutory duty to assure itself that its judgment would be implemented equitably to serve children’s best interests, and limited review of arbitrator’s decision would have circumvented trial court’s role in implementing its judgment.

Hirsch v. Hirsch, 4 A.D.3d 451, 774 N.Y.S.2d 48 (2004), also decided this year held that disputes concerning child custody and visitation are not subject to arbitration as “the court’s role as parens patriae must not be usurped.” The court reasoned that in matters of child custody and visitation, where public policy makes paramount the best interests of the child, the Domestic Relations Law places the responsibility on the courts for making orders on that basis, irrespective of any bargain the parents have struck. Since an agreement to arbitrate the issue of custody is tantamount to an agreement to give custody, enforcing such an arbitration agreement would be contrary to public policy, and is void.

In Cohoon v. Cohoon, 770 N.E.2d 885 (Ind. App. 2002), the court also held that a settlement agreement incorporated into divorce decree, requiring that all child support, custody, and visitation disputes be submitted to binding arbitration, was void as inconsistent with public policy.

Kelm v. Kelm, 92 Ohio St.3d 223, 749 N.E.2d 299 (2001), held that agreements to arbitrate matters of child custody and visitation are void. Only the courts are empowered to resolve disputes relating to child custody and visitation. As appellant points out, there are decisions from a number of jurisdictions upholding the use of arbitration to settle disputes over child custody and visitation.

Martin v. Martin, 734 So.2d 1133 (Fla. 4^th DCA 1999), also held that an order for binding arbitration was void. There, the trial court’s order provided for the appointment of a mediator to work out a visitation schedule between the parties and the child. The order stated “[t]he mediator shall have absolute authority to establish a visitation schedule for the parties.” The court held that while a trial court can order the parties to mediate the issue of visitation, it cannot delegate its judicial authority to ultimately resolve the issue and settle disputes between the parties. That sentence was stricken from the trial court’s order, and the trial court had to resolve any unsettled issues of visitation.

B. Custody/Support May Be Submitted to Arbitration, But Decision is Reviewable De Novo.

In Kniskern v. Kniskern, 80 P.3d 939 (Colo. App. 2003), the court did not hold that such an agreement to arbitrate custody/support is void, but did hold that when arbitration occurs under statute authorizing court to appoint an arbitrator to resolve disputes between the parties regarding their minor or dependent children, the trial court retains jurisdiction to decide all issues relating to the children de novo upon the request of either party.

Likewise, in Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (1999), which upheld an arbitration award in the matter of property division, the court disapproved of binding arbitration agreements concerning child custody or support:

Our holding, of course, is limited to arbitration agreements resolving issues of property or alimony, and does not apply to agreements involving child support or custody. See Moseley [v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983)] (“[F]amily courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies.”).

336 S.C. at 486, 520 S.E.2d at 338, n. 6.

In Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982), the court did not hold the order to arbitrate void, but did hold that the court must review the issue of custody/visitation de novo. The court stated that while there also exists no prohibition to the parties settling the issues of custody and child support by arbitration, the provisions of an award for custody or child support will always be reviewable and modifiable by the courts. “It is a well-established rule in this jurisdiction that parents cannot by agreement deprive the court of its inherent and statutory authority to protect the interests of their children.” Accord Kovacs v. Kovacs, 98 Md. App. 289, 633 A.2d 425 (1993); Miller v. Miller, 423 Pa. Super. 162, 620 A.2d 1161 (1993).