Georgia Bar Journal
GSB Vol. 14, NO. 1, Pg. 20.
Law Comprehensive Arbitration of Domestic Relations Cases in Georgia
GSB JournalVol. 14, NO. 1August 2008Law Comprehensive Arbitration of Domestic Relations Cases in GeorgiaBarry EdwardsIn an average year, there are more than 150,000 domestic relations cases filed in Georgia's superior courts. There are more domestic relations cases filed each year than felony prosecutions, and domestic relations cases outnumber general civil cases in the superior courts.(fn1) Contested domestic relations cases in this area are also fact-intensive. The sheer number of these cases and the time and effort that it takes to bring contested actions to a conclusion inevitably consume a great deal of judicial resources.
Moreover, litigating domestic relations cases often exacts a tremendous emotional and economic toll on the individuals involved. Improving the means of resolving these cases in an efficient and fair manner would make a substantial contribution to the legal system in Georgia. Recent legislation in Georgia that authorizes binding arbitration of child custody and other matters affecting children offers such an improvement in the domestic relations area by allowing for the increased use of alternative dispute resolution.
Status of Domestic Relations Arbitration in Other States
Arbitration has been routinely used by various states to help resolve domestic relations cases. These states differ dramatically as to whether arbitration is available in domestic relations matters involving children.
North Carolina,(fn2) Michigan,(fn3) Texas,(fn4) Colorado,(fn5) Missouri(fn6) and New Hampshire,(fn7) for example, have enacted specific legislation to authorize binding arbitration of issues affecting children. Additionally, in the absence of specific legislation, courts in Pennsylvania,(fn8) the District of Columbia,(fn9) Maryland,(fn10) New Jersey,(fn11) Massachusetts(fn12) and Wisconsin(fn13) have concluded that agreements to arbitrate matters affecting children are enforceable and not contrary to public policy.(fn14)
On the other hand, appellate courts in Indiana(fn15) and Ohio(fn16) have held that agreements to arbitrate matters involving children are unenforceable as contrary to pub-lic policies that favor protecting the best interests of children. Binding arbitration of matters affecting children is explicitly prohibited by statute in Florida(fn17) and by rule in California.(fn18)
Connecticut appellate courts have employed a middle-of-theroad approach, allowing minor parenting matters to be subject to binding arbitration but reserving fundamental issues impacting children for the trial courts.(fn19) The enforceability of agreements to arbitrate domestic relations matters affecting children has divided appellate courts in New York.(fn20)
Comprehensive Domestic Relations Arbitration Now Permitted in Georgia
Arbitration, as a general matter, is a favored means of resolving disputes between litigants in Georgia.(fn21) In accord with this principle, arbitration has been routinely used to resolve domestic relations issues between adults, such as the division of marital property. The authority to decide issues involving children, such as custody, child support and visitation, through binding arbitration was unclear because Georgia courts have historically played a special role in protecting the best interests of children.(fn22) Thus, in the past, litigants in domestic relations cases involving mixed issues, some of which were arbitrable (e.g., division of marital property) and some of which were not (e.g., custody), likely looked to the courts to resolve all of their domestic relations issues in one proceeding rather than proceed in both arbitration and litigation. Recent legislation that increases an arbitrator's authority with regard to domestic relations issues involving children may make arbitration more attractive.
One provision of House Bill 369, signed into law last year, now specifically allows parents to agree to binding arbitration to resolve child custody, visitation and parenting plan issues. O.C.G.A. 19-9-1.1, effective Jan. 1, 2008, provides:
[I]t shall be expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter's decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter's award would not be in the best interests of the child. In its judgment, the judge may supplement the arbiter's decision on issues not covered by the binding arbitration.(fn23)
In light of this recent legislation, an agreement or order to arbitrate the issue of custody and related matters cannot be held void as contrary to public policy.(fn24) Thus, arbitration is no longer a partial solution to domestic relations issues; a Georgia arbitrator may now craft a comprehensive solution in a domestic relations case.(fn25)
Applicable Georgia Arbitration Code Procedures
Because the Legislature did not enact a stand-alone domestic relations arbitration act, proceedings relying upon O.C.G.A. 19-9-1.1 should follow, as much as possible, the generally-applicable Georgia Arbitration Code and the rules and procedures agreed to by the parties.(fn26) This article will not attempt to thoroughly discuss general arbitration practice, but rather will focus on the procedures most altered in the domestic relations context: confirmation, vacatur and modification.
After an award is issued through arbitration, a party may apply to the trial court for confirmation of the award, which shall be granted unless the award is vacated or modified.(fn27) If the arbitration award is confirmed by the trial court, it is incorporated into the court's final judgment and decree as provided by statute.(fn28) Because only a superior court may decree a married couple divorced, confirmation of an arbitration award should be expected in order to issue a final divorce decree.(fn29)
Under the Georgia Arbitration Code, a party has very limited grounds for moving to vacate an arbitration award.(fn30) Similarly, the Code also provides narrow grounds to grant a party's motion to modify an arbitration award.(fn31) Arbitration awards may generally only be vacated or modified based on the grounds enumerated in O.C.G.A. 9-9-13 and 9-9-14, respectively. As more fully discussed in the following section, however, when the award involves a child, the trial court is statutorily required to consider the best interest of the child at issue and may vacate or modify an award in light of that interest.
Superior Court Must Review Award in Light of the Best Interest of the Child
Even where binding domestic relations arbitration is permitted, courts have consistently recognized the trial court's independent duty and authority to protect the best interests of the child.(fn32) In Georgia,(fn33) as in Michigan,(fn34) Texas(fn35) and North Carolina,(fn36) the trial court's authority to consider whether an arbitration award is in the best interest of the child is codified. In light of this statutory mandate, the superior court should consider on its own whether the award is in the best interest of the child, even where none of the parties have requested such a review.
The trial court's role in reviewing arbitration awards regarding children is comparable to the court's role in reviewing voluntary settlements affecting children. The Supreme Court of Georgia has recently stated that a trial court has the ultimate duty to determine the propriety of a settlement agreement and must properly review a voluntary settlement agreement prior to its incorporation into a final decree of divorce.(fn37)
Whether parties reach agreement on their own, through private mediation, court-annexed mediation or by agreeing to an arbitration process, it is desirable to settle domestic relations cases without resorting to trial.(fn38) No matter how a resolution of issues affecting children is attained, it remains clear that trial courts maintain the authority to set private agreements aside to protect the best interest of the child.(fn39)
What Type of Review is Necessary?
Given that trial courts must review domestic relations arbitration awards for the best interest of the child, it is important to establish exactly how courts should conduct that review. Because comprehensive domestic relations arbitration is a new development in Georgia and O.C.G.A. 19-9-1.1 provides sparse instruction, however, it is not altogether clear how superior courts are to proceed. Case law from other states may provide persuasive instruction for Georgia courts considering the issue.
The case of MacIntyre v. MacIntyre(fn40) may be the leading authority on the standard of review that a trial court should give to an arbitrator's domestic relations award affecting a child. In that case, the party who lost custody at arbitration moved to vacate the arbitrator's award and requested a de novo evidentiary hearing to determine the custody issue. The trial court instead conducted a de novo review of the arbitration...