For years, the question of whether child custody and visitation issues can be submitted to binding arbitration with no oversight by the family court and no right of review by an appellate tribunal has been bouncing around in South Carolina’s courts.
In a Sept. 8 opinion, a unanimous state Supreme Court gave a clear answer in this case of first impression.
“We believe the answer is clearly and unequivocally no,” Justice Kaye Hearn wrote for the court. “Our Alternative Dispute Resolution Rules (ADR) contemplate both mediation and arbitration of family court matters, but implicitly limit binding arbitration to issues of property and alimony.”
The ruling comes after the state’s Court of Appeals denied five motions filed by a mother seeking to vacate arbitration awards giving custody of her two children to her former husband.
Children’s interests are paramount
After separating in 2012, Simran Singh and Gunjit Singh entered into a settlement regarding the custody and visitation of their children. Simran, the mother, received primary custody, and the couple agreed to submit future disputes to an agreed-upon arbitrator whose decision would be “binding and non-appealable.” The Charleston County Family Court approved the agreement and granted the couple a divorce.
Several months later, Gunjit sought to modify the agreement after Simran left South Carolina to give motivational speeches across the country. Over the next 10 months, four family court judges issued orders in the case, with two amending agreements to arbitrate, one issuing a consent order to arbitrate, and one dismissing the complaint because the parties agreed to arbitrate.
The arbitrator, finding a substantial material change in circumstances, awarded temporary custody, and ultimately permanent custody, to the father. A fifth judge confirmed the awards, which also addressed child support and other issues.
With a new attorney, Simran sought emergency relief, which was denied with finality. She filed five separate motions to vacate all orders approving the settlement. The appeals court consolidated and denied those motions, finding that while policy favors arbitrating disputes, the family court cannot delegate to a private individual its duty to determine the best interest of children–specifically, issues relating to custody, visitation, and child support.
The appeals court relied on the state Supreme Court’s 1983 ruling in Moseley v. Mosier, holding that family courts have continuing jurisdiction to do whatever is best in the interest of the child, “regardless of what the separation agreement specifies.” And in 1998, the appeals court held in Ex parte Messer that “parties to a separation agreement may submit all disputes, other than those involving their children, to arbitration.”
The high court agreed to hear the case because a similar case, Kosciusko v. Parham, was decided by the appeals court a month before the appeals court decided Singh. Kosciusko held that family court does not have subject-matter jurisdiction to approve binding arbitration of children’s issues, something that the appeals court did not find in Singh.
Hearn noted that the family court is a statutory court with limited jurisdiction that may not violate the rules of the court or the state.
“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,” Hearn wrote. “This has never been the law in South Carolina, and our decision today unequivocally holds arbitration of children’s issues is not permitted.”
The Supreme Court also cited the parens patriae doctrine, which limits parental rights in order to promote a child’s best interests.
Sheila Robinson of Moore Taylor Law Firm in West Columbia, Robert Rosen of Charleston, and Katherine Goode of Winnsboro represented Gunjit Singh. Rosen declined to comment on the ruling, and neither Robinson nor Goode returned a message seeking comment.
O’Grady Query and Michael Sautter of Query Sautter & Associates in Charleston represented Simran Singh. They told Lawyers Weekly through written correspondence that the Supreme Court is “absolutely correct.”
“[The courts] have reiterated the devotion of the South Carolina courts to the protection of the constitutionally guaranteed rights belong to the children, confirming that these rights will be zealously protected by the courts of this state,” the statement read.
One child has been emancipated. The father will retain custody of the minor child until otherwise ordered by the family court.
The ties that cannot bind
Carrie Quick of Sodoma Law York in Rock Hill is not affiliated with the case but reviewed the ruling at the request of Lawyers Weekly. She called the ruling “significant,” because unlike similar cases, it specifically addresses and overturns the appeals court’s ruling to remove the family court’s jurisdiction over issues affecting “the life of a child.”
The Supreme Court modified the appeals court ruling to the extent that it suggests that ADR rules—which expressly include arbitration of property and alimony but address custody and visitation only in the context of early mediation—permit binding arbitration of children’s issues, a finding that Quick believes could be made clearer by the high court.
“I don’t think it means that you cannot arbitrate, I think it should mean that you cannot be forced to arbitrate, and that neither party is bound by the arbitration ruling on custody issues—which allows the Court to always address custody issues,” Quick said.
Nicole Sodoma, managing principal of Sodoma Law, agreed, adding that the ruling doesn’t prohibit custody discussions during arbitration, and clients are often in situations where it’s best to discuss all issues during arbitration. Arbitration decisions, however, should contain unequivocal language informing both parties that any agreement regarding custody can be reviewed by the court.
“There should be a specific indication as to which claims the arbitration ruling is binding upon, and custody should be specifically outlined as non-binding pursuant to the ruling in the Singh case,” Sodoma said.
The 16-page decision is Singh v. Singh (Lawyers Weekly No. 011-099-19). The full text of the opinion is available online at sclawyersweekly.com.