863 S.E.2d 330
S.C.2021Background
- Gunjit (Father) and Simran Singh (Mother) divorced after a settlement agreement (2012) that gave Mother primary custody and provided that future disputes over child support or visitation could be submitted to a mutually agreed arbitrator whose decision would be "binding and non-appealable."
- The family court approved the settlement; later, following Father's request to modify custody, the parties executed amended arbitration agreements (approved by multiple family court judges) that reaffirmed finality, added a $10,000 penalty for challenging awards, and contained a release regarding arbitration of children’s issues.
- The parties arbitrated custody; the arbitrator issued awards transferring custody to Father, and a family court judge confirmed the awards.
- Mother filed multiple Rule 60(b)(4) motions to vacate the orders approving arbitration agreements; those motions were denied and Mother appealed; the Court of Appeals consolidated the appeals and vacated the arbitration award, holding the family court cannot be divested of jurisdiction over children's issues.
- The South Carolina Supreme Court granted certiorari and affirmed (as modified), holding that family courts may not permit binding arbitration of custody/visitation that forecloses judicial review because children's best-interest determinations are within the court's exclusive, nondelegable authority.
Issues
| Issue | Father's Argument | Mother's Argument | Held |
|---|---|---|---|
| Whether the family court may approve binding, non‑appealable arbitration of custody/visitation | Parties may contract to arbitrate disputes; family court approval makes agreement enforceable | Family court cannot divest itself of exclusive jurisdiction over children's best interests | Held: No. Family court may not permit binding arbitration of children's issues that eliminates judicial review of best‑interest determinations |
| Whether SC ADR rules/statutes allow binding arbitration of children's issues | ADR rules permit arbitration generally; parties may agree to arbitrate | ADR rules and practice implicitly limit binding arbitration to property/alimony; custody/visitation addressed only as mediation | Held: ADR rules do not permit binding arbitration of children's issues; arbitration of custody/visitation is not authorized |
| Whether parents can waive or estop a child's constitutional/parental‑rights protections by agreeing to binding arbitration | Parents freely contract; estoppel/waiver should bar belated challenges | Parents cannot waive children's fundamental rights or the State's parens patriae duty to protect children | Held: Parents may not circumvent children's constitutional protections; parens patriae prevents waiver of judicial oversight |
| Procedural defenses (estoppel, law of the case, two‑issue rule) to Mother's challenges | Father's procedural arguments bar Mother's relief | Mother's filings sufficiently preserved challenge to jurisdiction and children's rights; lack of subject‑matter jurisdiction cannot be waived | Held: Procedural defenses do not bar review; jurisdictional/constitutional concerns may be considered on appeal |
Key Cases Cited
- Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983) (family court retains continuing jurisdiction to act in child's best interest despite separation agreement)
- Ex parte Messer, 333 S.C. 391, 509 S.E.2d 486 (Ct. App. 1998) (distinguishing arbitrable property/alimony matters from nondelegable children's issues)
- Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App. 1999) (limiting arbitration holdings to property and alimony, not child support or custody)
- Kosciusko v. Parham, 428 S.C. 481, 836 S.E.2d 362 (Ct. App. 2019) (family court lacked subject‑matter jurisdiction to approve binding arbitration of children's issues)
- Singh v. Singh, 429 S.C. 10, 837 S.E.2d 651 (Ct. App. 2019) (consolidated appeals holding parties cannot divest family court of jurisdiction over custody/visitation)
- Graham v. State, 340 S.C. 352, 532 S.E.2d 262 (2000) (family court is statutory and of limited jurisdiction)
- Ex parte Tillman, 84 S.C. 552, 66 S.E. 1049 (1910) (state's duty to protect children's liberty under parens patriae)
- Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011) (standard of appellate review: questions of law reviewed de novo)