Singh v. Singh– No, there will be no avoiding judicial review as to matters involving children in this state. South Carolina Supreme Court, Op. No. 28057 (filed September 8, 2021)

I think this is a hugely important case.  Although my legal interests focus primarily in various areas of criminal law, there are certain legal principles that are so important it’s worth keeping up to date with their developments when they occur in other fields.  The principles of judicial review and frankly, legal transparency, are such issues and they are implicated in this case.

The facts strike me as fairly common in family law (which makes me wonder how many custody modification motions are imminently forthcoming) — mother and father entered into a settlement agreement that resolved their marital issues including custody and visitation matters involving their two minor kids.  Included in this agreement was the following language: that the order “be binding and non-appealable.”   A family court judge approved the settlement, and the parties were divorced.

Later, dad filed a motion seeking modification of custody (anyone who has ever had any experience with family law saw this coming a MILE AWAY).  From January through August 2014, four different family court judges issued decisions– one dismissing dad’s complaint due to the decision to arbitrate; a second issuing a consent order to arbitrate; and two approving amended agreements to arbitrate.  All four agreements included the following language:  “The parties fully understand that the decision of the Arbitrator is final and binding upon them and that they do not have the right to apply to this Court or any other Court for relief if either is unsatisfied with the Arbitrator’s decision.”

The Arbitrator then ruled in favor of dad and gave him custody.

Mom filed a motion for emergency relief and asked the courts to vacate the arbitration awards and the prior orders approving the parties’ agreements to arbitrate.  Denied.

Mom asked the cases be consolidated.  Denied.

Mom filed 5 motions of appeal to the South Carolina Court of Appeals.

The Court of Appeals reversed and remanded the case because the parties did not have the authority to divest the family court of jurisdiction to determine issues related to custody, visitation, and child support.  The Supreme Court exercised jurisdiction over this case because a different Court of Appeals panel addressed a similar issue but resolved it slightly differently.  In that case, Kosciusko v. Parham, 428 S.C. 481, 836 S.E.2d 362 (Ct. App. 2019), the Court held the family court did not have subject-matter jurisdiction to approve binding arbitration of children’s issues.

The Court ultimately found that neither the family court system (created by statute) nor Alternative Dispute Resolution court rules allow either the parties or the lower courts to extract children’s issues from the appellate review process.  The Court resolved the issue on statutory grounds, but the Court also went further and (again) recognized children’s fundamental constitutional rights are at stake here.  See Ex parte Tillman, 84 S.C. 552, 560 66 S.E.2d 1049, 1052 (1910) (“[There is a liberty of children above control of their parents, which the courts of England and this country have always enforced.”).   The holding in this case could not be more clear:

Parties may not attempt to circumvent children’s rights to the protection of the State by agreeing to binding arbitration with no right to 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.

Absolutely.  There’s such a drive in the business community to shoehorn all disputes into arbitration and for good reason—the companies save money by doing so by cabining legal fees, and they typically find arbitrators with friendly backgrounds to arbitrate the disputes (or else they will not long be used as arbitrators by various businesses!).  But these issues typically involve money which, important as it is, is not nearly as important as the welfare of children.  The legal community should resist reflexive decisions to submit just any legal disputes to arbitration. As positive an outcome as this case is, it concerns me the number of family court judges who willingly acquiesced in the delegation of their authority to oversee the welfare the children, no doubt for issues of efficiency.

I hope this will be a lesson—that whenever there is a push to remove the exercise of fundamental rights out of the court system and beyond judicial review, there will be significant push back.  Courts have legitimacy only to the extent they are respected and appear fair and impartial.  Delegating authority over fundamental rights is inherently at odds with that perception. And yes, I’m also looking at you, Texas and Fifth Circuit Court of Appeals.