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 courts authority
to determine suitable provisions for the childs best
interests. Permitting the parties, by stipulation, to
limit the trial courts 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
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 arbitrators
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 childrens best interests, and limited review
of arbitrators decision would have circumvented trial
courts 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 courts 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. 4th
DCA 1999), also held that an order for binding arbitration
was void. There, the trial courts 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 courts order,
and the trial court had to resolve any unsettled issues of
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
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