Surprising few, Supreme Court holds that child issues cannot be arbitrated

Posted Friday, September 10th, 2021 by Gregory Forman
Filed under Family Court Procedure, Mediation/Alternative Dispute Resolution, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

In Fall 2019, the South Carolina Court of Appeals issued two separate opinions holding that child issues could not be arbitrated: 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). When the Supreme Court accepted certiorari in Singh, I was curious as to why it had done so. It appeared that prior case law was clear that issues involving the rights of children had to be subject to family court review and approval. Would the Supreme Court now rule otherwise? If not, why accept certiorari?

The September 8, 2021 Supreme Court opinion in Singh v. Singh, 434 S.C. 223, 863 S.E.2d 330 (2021), answers these questions. As noted at the beginning of the opinion:

The question presented in this case is whether South Carolina law permits issues relating to child custody and visitation to be submitted to binding arbitration with no oversight by the family court and no right of review by an appellate tribunal. We believe the answer is clearly and unequivocally no.

Singh stems from the aftermath of a February 2013 family court approved custody agreement. In that agreement, the parties consented to submit any future disputes regarding child support or visitation to a mutually agreed-upon arbitrator, specifically providing that his or her decision would “be binding and nonappealable.”

Approximately nine months later, Father filed an action in family court seeking modification of custody, visitation, and child support, alleging Mother had violated a provision of the agreement when she failed to return to South Carolina with the children after embarking on a cross-country tour as a motivational speaker. From January through August of 2014, four family court judges issued decisions— one dismissing Father’s complaint due to the parties’ decision to arbitrate; a second issuing a consent order to arbitrate; and two approving amended agreements to arbitrate. The agreements contained the following provision: “The parties fully understand that the decision of the Arbitrator is final and binding upon them and that they do not have the right to apply to this Court or to any other Court for relief if either is unsatisfied with the Arbitrator’s decision.”

Eventually the matter went to arbitration and the Arbitrator awarded custody to Father. A fifth family court judge issued an order in January of 2015 confirming the arbitration awards.

Even before the arbitrator issued his decision, Mother hired new counsel and filed motions seeking to vacate the arbitration awards. That motion was denied as premature. Mother then filed five separate motions pursuant to Rule 60(b)(4), SCRCP, seeking to vacate all orders approving the parties’ agreements to arbitrate. All five family court judges denied these motions. Mother appealed all five orders, which were consolidate by the Court of Appeals.

The Supreme Court opinion affirming the Court of Appeals as modified, indicates why certiorari was granted: the litigants in Kosciusko resolved their dispute after the Court of Appeals issued its opinion and the Supreme Court preferred the reasoning of the Kosciusko panel.

The Supreme Court’s decision that child related issues cannot be arbitrated rests on subject matter jurisdiction and the parens patriae doctrine. The Supreme Court held that South Carolina ADR rules 3 and 4, indicated an intention to allow litigants to arbitrate or mediate property division and alimony but only mediate child related issues. It applied the “canon of construction expressio unius est exclusio alterius, meaning to express or include one thing implies the exclusion of another. Accordingly, because the drafters of Rule 4(d), SCADR, expressly included arbitration of property and alimony but only addressed custody and visitation in the context of early mediation, it can be fairly implied that the rule does not permit binding arbitration of children’s issues.” It thus held South Carolina’s ADR rules prohibit arbitration of children’s issues–a conclusion the Court of Appeals in Singh had not reached.

The Supreme Court also based its decision on the parens patriae doctrine, This doctrine recognizes that it is the State’s duty to protect those who cannot protect themselves, including minor children in this context. The Supreme Court noted, “Parents may not attempt to circumvent children’s rights to the protection of the State by agreeing to binding arbitration with no right of judicial review.”

Singh leaves no doubt that child related issues cannot be subject to binding arbitration with no right of judicial review. All custody orders that resulted from arbitration awards are likely open to challenge–although would-be litigants should note the Supreme Court left custody with Father until otherwise ordered by the Charleston County Family Court.

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