Originally from:

Journal of American Arbitration (JAA) - Vol. 2, No. 1

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ARTICLES

A Proposal to Return Custody Decisions to
Where They Belong
By Sophie K. Kennedy

I. INTRODUCTION
An oft-quoted observation of child custody disputes is that “[t]he
only absolute in the law governing custody of children is that there are no
absolutes.”1 This statement is especially true regarding arbitration of
child custody disputes. In recent years, courts have treated arbitration of
child custody matters or disputes inconsistently. While the large majority
of courts refuse to treat an arbitrator’s award respecting custody as
binding on the court, there is a growing minority of courts and
commentators who believe arbitration awards regarding custody should
bind the court. This Comment will show how courts and commentators
are losing sight of the hallmark of child custody determination, the best
interest of the child, by focusing on the benefits of an informal and swift
arbitration procedure compared with lengthy trials. Part II examines the
background of arbitration and its role in domestic relations in general.
Part III looks at the law regarding child custody and the standards and
presumptions courts use to make custody decisions. Part IV examines
what happens when child custody disputes and arbitration collide, and
where the judiciary stands on the issue. Part V discusses the problems
that arise when parties arbitrate a child custody dispute and the danger of
promoting arbitration in favor of the best interests of children.