Does SC law permit binding arbitration in the family court, with no oversight by the family court and no right to appeal decisions?
When it comes to children, including child custody and visitation rights, the SC Supreme Court, in Singh v. Singh, says “the answer is clearly and unequivocally no.”
Although parties can submit property or alimony issues to binding arbitration instead of allowing the family court to decide the issues, they cannot avoid judicial review when it comes to matters involving children, and the family court must retain jurisdiction to decide what is in the child’s best interests, regardless of what the parents’ separation agreement says…
Binding Arbitration in the Family Court is Limited to Issues of Property and Alimony
SC Code § 63-3-530(A)(39) allows the family court to order mediation or to permit other types of alternative dispute resolution (ADR) if the ADR does not “violate the rules of the court or the laws of SC:”
The family court has exclusive jurisdiction… to require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution which does not violate the rules of the court or the laws of South Carolina; provided however, the parties in consensual mediation must designate any arbiter or mediator by unanimous consent subject to the approval of the court…
Although the ADR rules permit either mediation or arbitration of family court issues, arbitration (binding arbitration with no possibility of appeal or review by the family court) is limited to issues involving property or alimony.
What’s the Difference Between Mediation and Arbitration?
Mediation is a guided negotiation – the mediator attempts to help the parties resolve their differences out of court but does not issue a binding decision. If the parties do not reach an agreement, they are free to return to the family court for a decision by a family court judge, which can then be appealed to the appellate courts.
Binding arbitration is an agreement to allow a final decision by an arbitrator – if you don’t like the result, you cannot return to the family court and you cannot appeal the arbitrator’s decision.
Expressio Unius Est Exclusio Alterius
The SC Supreme Court notes that the court rules expressly include submission of property and alimony issues to arbitration, but that they are silent as to whether child custody or visitation matters can be submitted to arbitration.
Applying the canon of construction, expressio unius est exclusio alterius, “to express or include one thing implies the exclusion of another,” this means that matters involving children cannot be sent to binding arbitration:
- Rule 3(a), SCADR makes “all contested issues in domestic relations actions filed in family court” subject to mandatory mediation unless the parties agree to arbitration,
- Rule 4(d)(1), SCADR says that the court can order early mediation of unresolved child custody or visitation issues,
- Rule 4(d)(2), SCADR says that the parties can agree to binding arbitration of property or alimony issues, and
- Rule 4(d)(5), SCADR says that “[i]n lieu of mediation, the parties may elect to submit issues of property and alimony to binding arbitration…”
The Best Interests of the Child > Separation Agreements
The bottom line is that SC’s family courts have final authority over issues regarding children, and this cannot be negotiated away by the parents.
Parents can enter into settlement agreements, and, in most cases, the family court will approve the settlement agreement and incorporate it into the final divorce decree. The court will review the agreement to determine whether they are in the best interests of the children, however, and will modify those agreements when it is in the best interests of the children to modify them.
In Moseley v. Mosier, for example, the SC Supreme Court held that “family courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies.”
This means that the parties cannot avoid judicial review of issues involving the children by submitting their issues to binding arbitration.
Similarly, in Ex Parte Messer, the SC Court of Appeals pointed out that parties to a separation agreement can “contract out of any continuing judicial supervision of their relationship by the court,” “except for matters involving children.”
In Swentor v. Swentor, the SC Court of Appeals upheld an arbitration award concerning the equitable distribution of marital property, but was careful to specify that “[o]ur holding… is limited to arbitration agreements resolving issues of property or alimony, and does not apply to agreements involving child support or custody.”
Parens Patriae Doctrine
The SC Supreme Court also pointed out that the family court must follow the parens patriae doctrine – the family court is responsible for protecting children’s fundamental rights and the courts cannot delegate that authority to an arbitrator:
Moreover, apart from the ADR rules and our case law, children’s fundamental constitutional rights are at stake here. See Ex parte Tillman, 84 S.C. 552, 560, 66 S.E. 1049, 1052 (1910) (“[T]here is a liberty of children above the control of their parents, which the courts of England and this country have always enforced.”). As the court of appeals so aptly stated: “Longstanding tradition of this state places the responsibility of protecting a child’s fundamental rights on the court system.” Singh, 429 S.C. at 23, 837 S.E.2d at 658. We agree with the court of appeals that the family court cannot delegate its authority to determine the best interests of the children based on the parens patriae doctrine. 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. This has never been the law in South Carolina, and our decision today unequivocally holds arbitration of children’s issues is not permitted.
Mediation can be ordered by the court.
Binding arbitration can be agreed to by the parties, but only as to matters of property and alimony and never as to matters involving children.
Questions about binding arbitration in the family court?
If you are considering separation or divorce and there are children involved, your Myrtle Beach child custody lawyer on the Axelrod team may be able to help.