Reclaiming the 'Creatures of the State': Contracting for Child Custody Decisionmaking in the Best Interests of the Family
75 Pages Posted: 31 May 2015 Last revised: 6 Jun 2015
Date Written: 2000
Arbitration has great potential utility for promoting family autonomy. Parents in a fracturing family might utilize arbitration to select both the decisionmaker and the legal standards to guide that decisionmaker in resolving their child custody and visitation dispute. In this way, the parents can seek to ensure that the resolution of their child custody and visitation dispute is governed by the values that the family has cherished and lived by.
The present dominant judicial approaches to the enforcement of arbitration agreements and awards with respect to child custody, however, greatly undermine arbitration's utility for promoting family autonomy. Pursuant to the void approach to judicial review of such arbitration agreements and awards, the court entirely disregards the custody arbitration agreement or award. Such an approach retards the ability of parents, including those parents in an intact family, to use an arbitration agreement to structure their family responsibilities and rights as they desire and think most appropriate. Pursuant to the voidable approach to judicial review of custody arbitration agreements and awards, the court replaces an arbitration award for child custody entered by a decisionmaker selected by the child's parents whenever the court feels that its own custody order would better serve the “best interests” of the child. Thus, when the court's values conflict with the parents' values, the court's values will control the custody decision.
The courts that utilize the void and voidable approaches to judicial review of custody arbitration agreements and awards should reexamine their approach in light of the general principles that govern state deference to, and intervention in, the family. The prudential considerations that militate against extensive state intervention in the family support the conclusion that the state is likely to optimize outcomes in the run of custody disputes by giving great deference to parent-sponsored arbitration awards for custody. Moreover, the Supreme Court's recent discussion of parental autonomy in Troxel v. Granville strongly supports the conclusion that the dominant approaches impermissibly infringe upon the constitutional right of parental autonomy by failing to give the requisite special weight to a parent's views regarding custody and visitation arrangements concerning her child.
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