Divorce Arbitration: Supreme Court Decides Custody Arbitration Matter



There are important issues in any divorce that must be resolved before a final order can be issued by a judge. No issue is as fiercely contested as those matters pertaining to children and custody or visitation rights.


Child custody proceedings in South Carolina have the potential to impact the rights of parents and the best interests of children, both now and for years into the future. In making child custody arrangements and creating a parenting plan, the court may refer couples who cannot agree to arbitration. Find out more about arbitration, and how it can potentially impact your Aiken child custody case.

Arbitration For Child Custody Disputes in South Carolina


For parents going through a divorce, determining which home their children should primarily reside in and each person’s rights regarding visitation, on weekends, school breaks, holidays, and other special occasions, is a major issue. Under Title 63, the South Carolina Code, the court generally favors child time-sharing arrangements, which allow both parties to remain active and involved in the child’s life.


In making these arrangements, the parties are encouraged to create a parenting plan. This will typically include:

  • Each party’s rights regarding custody and visitation;

  • Detailed plans regarding pickup and drop-off arrangements;

  • Provisions for how changes in plans will be handled and how any disputes that arise will be resolved;

  • The right to legal custody, which is the authority to make important decisions on the child’s behalf, such as their medical care, education, and religious upbringing.


In cases where parents cannot agree on the above terms or other provisions in a parenting plan, the case may go to court, where a judge will decide and issue a final ruling. However, before holding a trial, arbitration may be ordered.


Arbitration is when an impartial third party allows each side to present evidence and then makes a decision on the case.


However, as arbitration is generally binding, and so it is not something to enter lightly. This has become a hot topic for the South Carolina family court and the Court of Appeals. Parents and their legal advocates have protested against anyone—other than the parents themselves or a South Carolina family court judge—making such important decisions.


Controversy Over Arbitration in South Carolina Child Custody Cases


Arbitration is a type of alternate dispute resolution (ADR) used by the court in resolving cases in which the parties involved disagree. It is similar to mediation, in that an impartial third party is assigned by the court to work with both parents. Mediations in child custody matters typically involve helping the parents reach mutually beneficial arrangements. However, arbitration involves having both sides present evidence, after which the arbitrator renders a decision, much like a judge.


Another way that mediation and arbitration are different is that, while mediators generally make suggestions, opinions rendered by arbitrators are often legally binding. This means that they have the final say in the case, regardless of whether the parents object. It is this aspect that creates controversy.


In several child custody cases, in which binding arbitration was used, attorneys representing the parties involved ended up filing an appeal. In rendering a verdict on Singh and another 2019 case in which an arbitration award was disputed (Kosciusko v. Parham, 428 S.C. 481, 836 S.E.2d 362 (Ct. App. 2019), the South Carolina Court of Appeals issued two published opinions. Both held that child custody and visitation could not be arbitrated and that any past orders issued based on arbitration were void.


This is not surprising, as binding arbitration in child custody cases goes against a primary function of the South Carolina Family Court. The South Carolina Supreme Court recognizes parens patriae, a latin term that means that the government has the authority to protect children or vulnerable adults who are not otherwise able to protect themselves. In Singh v. Singh, 429 S.C. 10 , 837 S.E.2d 651 (Ct.App. 2019), it was affirmed that 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.” In other words, a judge, not an arbitrator, is the only one who should make binding decisions in a child custody case.


The Role of Arbitration in Your Child Custody Case


Court-ordered arbitration can still play an important role in your child custody case. Instead of going through the time and effort to appear before a judge (it can take long months to schedule a hearing), you and the other parent can agree to an arbitrator; who can generally work with you on a more immediate basis.


What happens in child custody arbitration?


  • Attorneys for each party will convey their wishes in regards to a parenting plan and what child time-sharing arrangements should be put in place;

  • Each party will be given the opportunity to present evidence to support their case;

  • The arbitrator will review all evidence and other details involved, such as each parent’s current and prior relationship with the child and their willingness to cooperate with each other in implementing plans;

  • Based on the evidence and testimony presented, the arbitrator will make a ruling in the case.


As this ruling is not legally binding, it means you can disagree if you wish and make your own decisions or insist on having your child custody case heard before a judge. However, be aware that the judge is likely to weigh the arbitrator's testimony in issuing a final order.

Questions Regarding Arbitration? Reach Out To Our Aiken Child Custody Attorney

Going through arbitration is a serious matter that can impact your legal rights in the future. This is particularly true in child custody cases, even though the arbitrator’s decision is not binding. To protect yourself as a parent and for the best interests of your child, get answers to your most important questions and reach out to The Surasky Law Firm. Call or contact our Aiken child custody attorney online and request a consultation today.


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