In 2019, the South Carolina Court of Appeals issued two published opinions holding that child-related family law issues (custody/visitation/child support) could not be arbitrated and that arbitration awards on such issues were void. Kosciusko v. Parham, 428 S.C. 481, 836 S.E.2d 362 (Ct. App. 2019); Singh v. Singh, 429 S.C. 10 , 837 S.E.2d 651 (Ct.App. 2019). These decisions weren’t surprising. As Singh noted, “[O]ur supreme court recognized as a part of parens patriae, the family court is vested with the exclusive jurisdiction to ensure that, in all matters concerning a child, the best interest of the child is the paramount consideration.” While Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App. 1999), authorized arbitration for alimony and equitable distribution issues it explicitly stating its holding “does not apply to agreements involving child support or custody.” Further, South Carolina’s Court of Appeals (but not yet its Supreme Court) has held that family courts should not delegate authority regarding custody or visitation decisions. Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003); Stefan v. Stefan, 320 S.C. 419, 422, 465 S.E.2d 734, 736 (Ct. App. 1995).
Yet the public policy against delegating judicially imposed authority over children to non-judges is in tension with a public policy favoring arbitration. Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 644 S.E.2d 663 (2007) (“There is a strong presumption in favor of the validity of arbitration agreements because both state and federal policy favor arbitration of disputes”).
The South Carolina Supreme Court has accepted certiorari (discretionary review) in the Singh appeal, with oral argument set for June 17, 2021. Oral argument should be fascinating. One assumes the Supreme Court accepted certiorari to resolve the tension between a public policy that does not allow judicial determinations about children to be made by non-judges with a public policy favoring arbitration over trials. Given the parens patriae doctrine, I’d be surprised if the justices found it acceptable to delegate such authority to arbitrators. On the other hand, the Supreme Court doesn’t accept certiorari to merely affirm the Court of Appeals’ reasoning and result. Further, the case law precluding the delegation of custody decisions has never been ratified by the Supreme Court. Something in the Singh case intrigued them (Mr. Kosciusko did not seek certiorari in his appeal).
A decision affirming the Court of Appeals will almost certainly provide the Supreme Court’s reasoning on the limitations of what family court issues can be arbitrated. A decision reversing the Court of Appeals would open a method of custody, visitation, and child support resolution that I would never employ–I don’t want to waive my client’s appellate rights on custody issues–but many family law attorneys might. Either way, this may be one of the more consequential family law appeals of the decade.
Very interesting case and opinion about not wanting to give away your client’s right to appeal