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Child Custody Arbitration Banned in South Carolina (2021)

Singh v. Singh: Supreme Court Ruling on Custody and Visitation
Case Citation: Singh v. Singh, 434 S.C. 223, 863 S.E.2d 330 (2021)
Overview: A Definitive Answer on Arbitration of Children’s Issues
In a unanimous decision that clarifies a critical question for South Carolina family law practitioners, the South Carolina Supreme Court held in Singh v. Singh that child custody and visitation issues cannot be submitted to binding arbitration with no oversight by the family court and no right of appellate review. The Court’s decision definitively answers what it describes as a question with a “clear and unequivocal” answer: No, children’s issues are not arbitrable in South Carolina.

This ruling has significant implications for family law attorneys drafting settlement agreements and advising clients about alternative dispute resolution options in custody and visitation matters.

Facts and Procedural History: A Complex Journey Through Family Court
The procedural history of Singh v. Singh is as instructive as the legal holding itself. After nearly seventeen years of marriage, Simran Singh (Mother) and Gunjit Singh (Father) separated in January 2012. Their 2013 settlement agreement, approved by the family court, gave Mother primary custody of their two children (then ages eleven and two) and included a provision requiring arbitration of future disputes regarding child support or visitation, with the arbitrator’s decision to be “binding and non-appealable.”

The Escalating Arbitration Provisions
What makes this case particularly notable is how the arbitration provisions evolved and expanded over time. The Supreme Court’s opinion carefully traces this progression:

1. February 2013 Settlement Agreement: Provided for arbitration of child support, relocation, and visitation disputes, but did not specifically address custody. Importantly, the family court judge stated on the record that either parent could return to court if circumstances changed regarding the children.

2. January 2014 Agreement to Arbitrate: Following Father’s motion for custody modification, the parties agreed to arbitrate all issues, including custody, with the arbitrator’s decision designated as “final and not appealable.”

3.March 2014 Amended Agreement: Added a $10,000 monetary penalty for challenging the arbitrator’s decision.

4.August 2014 Supplemental Amended Agreement: Included a provision acknowledging that ADR rules do not expressly authorize arbitration of children’s issues, but releasing potential claims against the arbitrator and attorneys for exceeding their authorization.

Over eight months, four different family court judges approved these increasingly restrictive arbitration agreements—some apparently without hearings. The arbitrator ultimately awarded custody to Father in a thirty-two-page final award, and a fifth family court judge confirmed both the partial and final arbitration awards in January 2015.

Mother’s Challenge and the Appellate Journey
Shortly after the final arbitration award, Mother (with new counsel) filed a motion for emergency relief to vacate the awards and the underlying court orders approving arbitration. This began a complex procedural odyssey involving five separate Rule 60(b)(4) motions to vacate the orders, five separate hearings before different judges, and ultimately five consolidated appeals.

The Court of Appeals unanimously held that the parties could not divest the family court of jurisdiction over custody, visitation, and child support. Shortly before that decision, another Court of Appeals panel reached a similar conclusion in Kosciusko v. Parham, holding the family court lacked subject-matter jurisdiction to approve binding arbitration of children’s issues. The Supreme Court granted certiorari to resolve slight differences in the Court of Appeals’ reasoning.

Legal Analysis: Why Children’s Issues Cannot Be Arbitrated
The Supreme Court’s analysis rests on four independent grounds, each sufficient to support its holding.

1. Statutory Jurisdiction of Family Courts
The Court begins with foundational principles: Family courts are statutory courts possessing only the jurisdiction specifically delegated by the General Assembly under Article V, Section 12 of the South Carolina Constitution. The family court’s jurisdiction is “limited to that expressly or by necessary implication conferred by statute.”
South Carolina Code Section 63-3-530(39) grants family courts exclusive jurisdiction to authorize alternative dispute resolution “which does not violate the rules of the court or the laws of South Carolina.” This provision, the Court notes, contemplates arbitration in some areas—but not all.

2. The ADR Rules Expressly Exclude Children’s Issues from Binding Arbitration
The Court conducts a detailed analysis of South Carolina’s Alternative Dispute Resolution (ADR) Rules, which explicitly address both mediation and arbitration in family court matters. The critical provisions are:

Rule 3(a), SCADR: Requires “all contested issues in domestic relations actions” be subject to mediation unless parties agree to arbitration
Rule 4(d)(1), SCADR: States that if there are “unresolved issues of custody or visitation,” the court may order early mediation
Rule 4(d)(2), SCADR: Provides that parties “may submit the issues of property and alimony to binding arbitration”
Rule 4(d)(5), SCADR: States parties may elect to submit “issues of property and alimony to binding arbitration” in lieu of mediation

Applying the canon of construction expressio unius est exclusio alterius (to express one thing implies the exclusion of another), the Court reasons that because the ADR rules expressly permit binding arbitration of property and alimony but only reference custody and visitation in the context of early mediation, the rules implicitly prohibit binding arbitration of children’s issues.

3. Settled South Carolina Jurisprudence
The Court traces a clear line of precedent establishing that family courts retain continuing jurisdiction over children’s issues regardless of what parties agree to in settlement agreements.

Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983): The seminal case establishing that “family courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies.” The Court clarified that except for matters relating to children, parties may contract out of continuing judicial supervision.

Ex parte Messer, 333 S.C. 391, 509 S.E.2d 486 (Ct. App. 1998): Held an arbitration provision invalid and reiterated that “Moseley makes it clear that except for matters relating to children, over which the family court retains jurisdiction to do whatever is in their best interest, parties to a separation agreement may ‘contract out of any continuing judicial supervision.'”

Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App. 1999): Declined to set aside an arbitration award concerning marital property but emphasized: “Our holding, of course, is limited to arbitration agreements resolving issues of property or alimony, and does not apply to agreements involving child support or custody.”

The Court rejects Father’s argument that the language in Messer and Swentor distinguishing children’s issues from property and alimony was mere dicta, holding instead that this language “was integral to those decisions because it delineated the scope of permissible arbitration in family court.”

4. Children’s Constitutional Rights and the Parens Patriae Doctrine
Perhaps most significantly, the Court grounds its holding in fundamental constitutional principles. Citing Tillman v. Tillman, 84 S.C. 552, 66 S.E. 1049 (1910), the Court recognizes that “there is a liberty of children above the control of their parents, which the courts of England and this country have always enforced.”

The Court invokes the parens patriae doctrine—Latin for “parent of the country”—which recognizes the State’s duty to protect those who cannot protect themselves, including minor children. As the Court of Appeals stated in language the Supreme Court endorses: “Longstanding tradition of this state places the responsibility of protecting a child’s fundamental rights on the court system.”

The Court holds that the family court cannot delegate its authority to determine the best interests of children based on this doctrine. Parents may not circumvent children’s rights to the protection of the State by agreeing to binding arbitration with no right of judicial review.

Important Clarifications and Distinctions
What About Mediation?
The Court’s holding does not prohibit or discourage mediation of custody and visitation issues. The ADR rules explicitly contemplate early mediation of custody and visitation disputes, and mediation remains an encouraged and valuable tool for resolving these matters. The critical distinction is that mediation is non-binding and any agreement reached must still be approved by the family court based on the best interests of the children.

The Uniform Family Law Arbitration Act
In a footnote, the Court acknowledges that the Uniform Family Law Arbitration Act (adopted by only four states, not including South Carolina) does contemplate arbitration of children’s issues while granting family courts power to vacate awards not in the child’s best interest. The Court notes this model legislation provides for either de novo review or review limited to the arbitration record. However, South Carolina has not adopted this Act, and the Court’s opinion makes clear that absent legislative action, children’s issues remain non-arbitrable.

Property, Alimony, and Child Support Are Arbitrable
The holding is specifically limited to custody and visitation issues. The Court reaffirms that property division, alimony, and child support matters may be submitted to binding arbitration under the ADR rules and the Uniform Arbitration Act (S.C. Code Section 15-48-10 et seq.).
Practical Implications for Family Law Practice

Drafting Settlement Agreements
Attorneys must carefully draft arbitration provisions in marital settlement agreements to comply with Singh. Recommended practices include:

1. Separate Children’s Issues from Financial Issues: Clearly delineate which issues are subject to binding arbitration (property, alimony, child support) and which are subject only to mediation or ongoing family court jurisdiction (custody, visitation).
2. Include Mediation Provisions for Custody/Visitation: Rather than arbitration clauses, include provisions requiring good-faith mediation of future custody and visitation disputes, with the understanding that any agreement must be approved by the family court.
3. Avoid Broad “All Disputes” Language: General arbitration provisions stating that “all disputes” will be arbitrated should be revised to explicitly exclude custody and visitation matters.
4. Preserve Family Court Jurisdiction: Include clear language acknowledging that the family court retains continuing jurisdiction over all matters affecting the children’s welfare and best interests.

Sample Language
Consider including provisions such as:

“The parties agree that any future disputes regarding the division of marital property, alimony, or child support may be submitted to binding arbitration in accordance with the South Carolina Uniform Arbitration Act. However, the parties acknowledge that all matters concerning custody, visitation, and the general welfare of the minor children remain subject to the continuing jurisdiction of the Family Court of [County], South Carolina, and that such matters may be submitted to mediation but not to binding arbitration. The parties further acknowledge that the Family Court retains jurisdiction to modify any provisions of this Agreement relating to the minor children as may be necessary to protect their best interests.”

Existing Agreements with Problematic Provisions
For existing settlement agreements containing arbitration provisions for custody and visitation:

1. Unenforceable But Not Necessarily Void: While such provisions are unenforceable under Singh, the remainder of the settlement agreement likely remains valid under severability principles.
2. No Need to Amend Unless Issues Arise: Parties need not rush to amend existing agreements, but should be aware that any attempt to enforce arbitration of custody or visitation will fail.
3. Consider Proactive Amendment: When other modifications are sought, consider amending the agreement to remove invalid provisions and replace them with mediation clauses.

Advice to Clients
Family law attorneys should counsel clients that:

1. Alternative Dispute Resolution Is Still Available: Mediation remains an excellent option for resolving custody and visitation disputes outside of contested litigation.

2. Some Issues Can Be Arbitrated: Financial matters, including complex property division and alimony disputes, may still be effectively resolved through binding arbitration, often at less cost and with more privacy than court proceedings.

3. The Court Protects Children’s Rights: The inability to arbitrate custody matters reflects the State’s commitment to protecting children’s constitutional rights and ensuring judicial oversight of decisions affecting their welfare.

4. Arbitration Awards Can Be Challenged: If a client has already participated in arbitration of custody or visitation issues, the award may be subject to challenge under Singh, though other procedural defenses (such as timeliness) may apply.

The Estoppel Issue
Father argued that Mother was estopped from challenging the arbitration because she had agreed to it and participated in the process. Two of the five family court judges who denied Mother’s Rule 60(b) motions found estoppel applied. However, the Supreme Court rejected this defense, holding:

1. Mother sufficiently challenged the estoppel findings on appeal, even without using the precise term “estoppel,” by arguing the family court erred in focusing on parents’ conduct rather than children’s constitutional rights.

2. Waiver and estoppel doctrines do not apply to issues of subject-matter jurisdiction, which “may not be waived and ought to be taken notice of by an appellate court.”

3. Parents cannot waive constitutional rights belonging to their children.

This aspect of the decision is significant because it confirms that parties cannot be bound by agreements to arbitrate children’s issues even if they initially consented, participated fully in arbitration, and only later sought to challenge the process. The children’s constitutional rights and the State’s parens patriae role cannot be bargained away.

The $10,000 Penalty Provision
One striking aspect of the case was the amended arbitration agreement’s inclusion of a $10,000 penalty for challenging the arbitrator’s decision. The Court of Appeals described this provision as “astonishing.” While the Supreme Court noted that neither party challenged the monetary penalty on appeal and therefore expressed no opinion on its enforceability, practitioners should be aware that such penalty provisions are unlikely to survive scrutiny, particularly in light of Singh‘s holding that the underlying arbitration agreements are unenforceable.

Conclusion: Clear Boundaries for Alternative Dispute Resolution
Singh v. Singh provides clear, definitive guidance on a question that had produced uncertainty in South Carolina family law practice. The Supreme Court’s unanimous decision, based on statutory interpretation, court rules, established precedent, and constitutional principles, leaves no doubt: child custody and visitation matters cannot be submitted to binding arbitration in South Carolina.

This holding does not reflect hostility toward alternative dispute resolution. Rather, it recognizes the unique nature of children’s issues and the State’s constitutional obligation to protect children’s fundamental rights. Family courts must retain jurisdiction to ensure that custody and visitation arrangements serve the best interests of children, and that authority cannot be delegated to private arbitrators, no matter how qualified or how much the parents may agree.

For family law practitioners, Singh requires careful attention to the drafting of arbitration provisions in settlement agreements and clear counseling to clients about which issues can and cannot be resolved through binding arbitration. The decision reinforces that while parties have significant autonomy in resolving financial aspects of divorce, matters affecting children remain subject to ongoing judicial oversight in fulfillment of the State’s parens patriae responsibility.

Questions about arbitration provisions in your family law case? The attorneys at Klok Law Firm LLC have extensive experience with alternative dispute resolution in family court matters. Contact us for a consultation to discuss your custody, visitation, or divorce matter.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Every case is unique, and you should consult with a qualified family law attorney about your specific situation.

By Suzanne Klok|2025-11-12T17:14:51+00:00March 15th, 2023|Arbitration|Comments Off on Child Custody Arbitration Banned in South Carolina (2021)

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About the Author: Suzanne Klok