Court overrides arbitrator on custody

A circuit judge is not bound by an arbitrator’s ruling on child custody issues, a Floyd County Circuit judge has ruled.

The court has the statutory duty and responsibility to determine the best interest of a child, the judge found.

There is “not much law” on this legal point, said Jonathan Rogers of Floyd, the prevailing lawyer. He added that arbitration in divorce cases is occurring “more and more,” so it is useful for the bar to have this opinion letter as guidance.

In Larimer v. Larimer (VLW 012-8-070), retired Virginia Beach Circuit Judge A. Joseph Canada sat in Floyd County. The parties had taken their divorce to an arbitrator, who gave custody of the couple’s child to the mother.

But the custody award had a string attached: The mother had to move from Richmond, where she was employed and where her family was, to within 40 miles of Floyd, where the father was. The child had been cared for primarily by the mother’s mother.

If she failed to move, the mother would lose custody.

Canada noted in his letter opinion that no appellate court in Virginia has decided the exact issue. But he drew on Kelley v. Kelley, 248 Va. 295, a 1994 Virginia Supreme Court decision that found that a father and mother could not make a contract that bargained away the support rights of a child.

The Kelley case relied upon the broad language in the Virginia Code that gives the court continuing jurisdiction to change or modify terms concerning the custody and maintenance of minor children.

Drawing on the principles in Kelley, the judge said that the court “was not bound by either the parties’ agreement or the findings of another adjudicatory body in making a custody determination.”

The judge also consulted legal treatises in the field, including Peter Nash Swisher’s volume on family law in the Virginia Practice Series. Swisher said there that “the better view is that no agreement … or consent order that acts to divest the court of its ultimate authority to determine [custody and visitation] can be consistent with public policy.”

Canada concluded that the court “was not bound by the results of arbitration in determining what is in the best interest of the child.”

While Canada made his ruling last August, the case was not ultimately decided until late March, Rogers said. The time period for appealing the case has run.

G. David Nixon, counsel for the father, did not return a call for comment.

Rogers said that when he first got the case, “it bothered me that you could outsource” the question of custody to an arbitrator.

As he researched the question, he learned how little law there is on the point. There was one other circuit court decision, from Fairfax in 1998, that went the same way. And some other states have decided the issue with differing results.

But those states have statutes different from Virginia’s, in the wording about the child’s interests.

Here, Rogers said, the court upheld most of the provisions of the arbitrator’s ruling in the case, including equitable distribution and spousal support.

But the parts covering custody and visitation were struck.

“I think this is something that will aid lawyers” who practice in the area, Rogers said.