Parents should be able to arbitrate their child-related disputes, especially if states have enacted the Uniform Family Law Arbitration Act. Child custody, visitation, parenting time, and support issues require a judge to determine what placement between parents is in the best interests of a child. Until the 1960s the “best interests” of the child was determined through use of presumptions, either favoring the mother with the tender years doctrine or the party not at fault in the divorce. There were few trials over custody. Once states adopted no-fault divorce and both unwed and wed fathers gained equal consideration, judicial decision-making and discretion played an increasingly large role. Child custody litigation increased due to unpredictability with each parent trying to look like the better one. High-conflict disputes often clogged court dockets, created new terms like joint or shared custody and parental alienation, and led to the creation of new professions, such as family law mediation, custody evaluation, parent coordination, collaborative law, and case management. These developments have failed to stem the flow of custody disputes going to trial.
Courts that hear family law disputes are often underfunded, understaffed, backlogged due to COVID-19, and lack judges with training about the unique aspects of family law, especially child custody. New judges who have come from criminal law or civil litigation practice are often unprepared for the emotional aspects of family conflicts, the presence of domestic violence, and the dynamics of child development. Because of continuances, delays, and judges moving to other divisions or appellate courts, several judges may be involved over the life of a custody case. Each judge has to “get up to speed” on issues before hearings with little time to truly investigate the child’s best interests. The Family Justice Initiative Report, endorsed by the Conference of Chief Justices in 2020, recommended encouraging the parties to resolve disputes quickly by contract. Some parents, however, cannot get to an agreement through traditional methods.
Arbitration is a contractual way to give parties more control over the decision-maker, process, and costs. Adding an arbitration option could not only help the parties resolve the custody issue using a professional familiar with child development and children’s needs at differing ages, but also privately, more quickly, at a cheaper cost, and with less adversarial posturing.
A Brief History of Family Law Arbitration
Arbitration, used for decades in labor and commercial disputes, is slowly, and finally, gaining traction in family law. The parties enter into a written agreement to have an impartial third party of their own choosing, usually an experienced family law attorney or a retired judge, decide their case. As early as 1992, both the American Bar Association’s Family Law Quarterly and the Family Advocate, as well as the American Academy of Matrimonial Lawyers (AAML) touted the benefits of family law arbitration. The last two decades have seen a slow, but steady, move toward not only allowing, but also encouraging, arbitration of family law disputes. Colorado added arbitration of family law issues in 1997; North Carolina adopted a comprehensive statute to allow family arbitration in 1999; the AAML adopted a Model Arbitration Act in 2005. In many states, parties submit property issues to arbitration, using the state’s basic arbitration law, either the Uniform Arbitration Act or the Revised Uniform Arbitration Act. Neither is particularly suited to family law issues.
In 2016, the Uniform Family Law Arbitration Act (UFLAA) set out a statutory framework for arbitrating all family law issues. While the arbitrator cannot make a status determination (grant a divorce, adoption, or guardianship, adjudicate a child in need of care or a juvenile offender, determine existence or nonexistence of a parent and child relationship, or terminate parental rights), the parties can agree to arbitrate almost anything else. UFLAA Section 2(f) defines a family law dispute as a contested issue arising under the family or domestic relations law of a state. In most states, arbitration would include matters of interpretation and enforcement of premarital, postmarital, nonmarital, and separation agreements; the characterization, valuation, and division of property; the allocation of debt; awards of alimony or spousal support; division of property and debt of cohabitants; and attorney fees. Most states consider pets to be personal property, so some separating couples are choosing an arbitrator who will consider the welfare of the animal in awarding the pet.
The UFLAA presumptively applies to child-related issues of parenting time and support. Hopefully, states will not choose to opt out because the UFLAA offers parties a choice of a simpler, faster, more convenient and confidential process with a seasoned “expert” decision-maker of their own choosing. Already enacted in Arizona, the District of Columbia, Hawaii, Montana, North Dakota, and Washington, UFLAA is under consideration in several other states. Other articles have discussed the details of the UFLAA; this article will discuss why arbitration can be used for child-related matters.
Although a few states have excluded child custody and support from the permissible scope of arbitration, others allow it as long as there is judicial review of the arbitration award to protect the child’s best interests. The Utah Supreme Court recently found that submitting child custody issues to arbitration is not contrary to public policy. Taylor v. Taylor, 517 P.3d 380 (Utah 2022). Indeed, the parents’ decision to arbitrate is not a delegation of court authority but rather their choice of the proper forum for the dispute. The Supreme Court of New Jersey found that within the constitutionally protected sphere of parental autonomy is the right of parents to choose the forum in which their disputes over child custody and rearing will be resolved, including arbitration. Fawzy v. Fawzy, 973 A.2d 347 (N.J. 2009).
The UFLAA presumptively extends to child-related disputes and builds in protections. An agreement to arbitrate child-related disputes must be made contemporaneously with the dispute or a prior agreement reaffirmed at the time of the dispute. Sec. 5 (c). This means that a premarital agreement that submits child custody and support issues to arbitration when there are no children at the time will not be enforced. At the time of the dispute, the parties must reaffirm the agreement to arbitrate. UFLAA requires the arbitrator to cause a verbatim record to be made of any part of an arbitration hearing concerning a child-related dispute. Sec. 14(b). The verbatim record can be a tape recording, a Zoom recording or any other means of transcribing the information. There will seldom, if ever, be a court reporter. Section 13 provides a nonexclusive list of arbitrator powers, including the power to interview a child and appoint a representative for a child. If an arbitrator finds that a child is abused or neglected, the arbitrator must report it, and the arbitration is terminated.
UFLAA requires an award determining a child-related dispute to state the reasons on which it is based as required by the law of the state in family law cases. In most states with extensive factors for child custody, this means the arbitrator will include findings of fact and conclusions of law on those factors. Section 16. There are also protections in the confirmation of the award.
Parties Select the Decision-Maker for the Particular Custody Dispute
Unlike litigation in which the parties have no choice over the judge who hears their case, arbitration allows the parties to select an arbitrator who is specific and appropriate to the case due to the arbitrator’s knowledge or experience of a particular area. In most instances the arbitrator will be an experienced lawyer or retired family court judge but does not have to be. With child custody issues, the parties may want to use a licensed clinical psychologist, a psychiatrist, a mediator, a respected social worker or even a former court service officer. If the parties are in high conflict, they may want an arbitrator familiar with handling high-conflict cases. It is hard to overestimate the value of having the direct, continuous involvement of a decision-maker who is knowledgeable about child development. The parties select the arbitrator based on the person’s availability to arbitrate the case according to the parties’ agreement, resources and time limitations.
Parties Have Flexibility and Individual Choice of the Adjudication Process
Arbitration is a creature of contract. The parties have the autonomy to choose who decides, what issues are decided, what the process will be, and where the arbitration will be held. The arbitration can start, and possibly finish, before any proceedings have been filed. The process can be used for the summary resolution of a discrete issue that is holding up the negotiations. For example, if relocation is an issue, once an award allows the child to relocate with a parent or modifies the residential placement to the nonmoving parent, the parties may be able to mediate the details of their parenting plan.
Arbitration can take place anytime and anywhere unlike litigation, where hearings, motions, and trials are traditionally held only at the courthouse during normal business hours. Parties are often more comfortable with the informal process. Five people sitting around a conference table feels substantially different than a formal courtroom with a robed judge. To participate in a 10 a.m. hearing, a parent may have to take a half day off work. With arbitration, the parties agree on the location and times of hearings at the convenience of the arbitrator and the parties. When the parties can get a babysitter may be important. The parties may meet after work, in the evening, or on a Saturday morning or Sunday afternoon in a conference room at the local library or at someone’s office.
Rather than have to follow the rules of civil procedure and evidence, the parties choose their own process and procedure, usually more informal and less adversarial. The parties decide when and how to conduct discovery. Unlike litigation where some judges only give parties and their lawyers a couple of hours to put on evidence, the parties can agree to take as little or as much time as they need. The parties can schedule a full-day hearing without the interruptions and delays that often plague the court process.
Children benefit from having the custody and residency issues resolved quickly so they can continue with their lives or adapt to the new arrangements. Arbitration will almost always be quicker than the court process. As the number and complexity of custody cases continue to increase, the judicial process may be extremely slow. The number of temporary order hearings, extensive discovery, multiple motions, and continuances contribute to delays. Studies have repeatedly shown that clients are dissatisfied with the adversarial system generally and feel a lack of control over both timing and costs. Arbitration, on the other hand, can be extremely fast depending on the parties and the arbitrator. The parties or their lawyers can figure out quickly if an arbitrator is available and how quickly the arbitrator can conduct and conclude the arbitration. The parties can set the calendar and agree to use telephonic, electronic submissions, sworn affidavits, or other methods convenient to the parties.
Privacy and Confidentiality
The entire arbitration process is private and confidential by its nature. The parties can include any terms of security they wish that the arbitrator agrees to, such as reviewing the evaluation or other papers in a secure place. Arbitration agreements will include a confidentiality provision. Because the papers are not filed in court, the risk of leaks is minimal. The arbitration remains confidential, but the child custody and support arrangements will be reduced to judgment.
Protections for Victims of Domestic Violence
The UFLAA has specific provisions that protect victims of domestic violence which will help to protect the children of the parties. Brain studies have demonstrated that children are harmed from witnessing domestic violence as well as from direct abuse. Protecting a victim parent will also help protect the child. Section 12 provides that if a party is subject to an order of protection or if the arbitrator otherwise finds that a party’s safety or ability to participate effectively in the arbitration is at risk, the arbitration is suspended unless the party who is at risk reaffirms the desire to arbitrate and a court allows it. Additionally, a party may be represented by an attorney (and in arbitration most will be) and a party may also bring a support person to the arbitration. Sec. 10.
Arbitration Award Is Subject to Limited Review, but Best Interests Are Key
Arbitration awards are subject to limited review, but the UFLAA imposes additional requirements for child-related awards. Custody disputes are essentially fact-based, rather than law-based, disputes. To confirm an award, the court must determine that the award complies with the law of the state and is in the best interests of the child. Sec. 16(c). The verbatim record should help a judge quickly ascertain if the arbitrator considered the proper statutory factors. Vacation of award is allowed (Sec. 19(b)(1)) if the award did not comply with the applicable law of the state dealing with the best interests of the child. For example, every state has adopted child support guidelines and federal regulations require use of them. If the award is for less than the guideline amount without written findings as to why it is in the child’s best interest to not be awarded the guideline amount of support, the award could be vacated.
Training and Standards for Arbitration
Most people who choose family law arbitration want to avoid the court system and are happy, even if not totally satisfied with the award itself. To work, courts need to have confidence in arbitrators and in the process. Family law arbitrators need adequate training. Costs may be an issue. But overall, judges, lawyers, and parents need to be educated as to the advantages of arbitration for their disputes, including custody. Postdissolution arbitration has been shown to dramatically reduce re-litigation. Additionally, the more flexible and informal procedures and speedier awards can lead to less uncertainty and more stability for the child as well as lead to improved communications between the parties. The UFLAA provides needed standards to ensure that arbitration retains the advantages of efficiency for the parties as well as protections for children and victims of domestic violence.
Carolyn Moran Zack, Family Law Arbitration: Practice, Procedure, and Forms (ABA, 2020)
Audrey J. Beeson, Arbitration: A Promising Avenue for Resolving Family Law Cases?, 18 Pepper. Disp. Resol. L.J. 211 (2018).
Barbara A. Atwood, The New UFLAA: Providing Needed Standards for Efficiency and Fairness, 39(4) Fam. Advoc. 38 (2017).
Linda D. Elrod, The Case for Arbitration in Family Law Cases—and for the Uniform Act, Dispute Resolution Magazine 18 (Winter 2017).
Linda D. Elrod & Milfred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance, 42(3) Fam. L. Q. 381 (2008).
Allan R. Koritzinsky, Robert M. Welch, Jr., & Stephen W. Schlissel, The Benefits of Arbitration, 14 Fam. Advoc. 45 (1992).
Stephen W. Schlissel, A Proposal for Final and Binding Arbitration of Initial Custody Determinations, 26 Fam. L. Q. 71 (1992).