[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 223.]
KELM, APPELLANT, v. KELM, APPELLEE.
[Cite as Kelm v. Kelm, 2001-Ohio-168.]
Domestic relations—Arbitration—Child custody and parental visitation are not
subject to arbitration in a domestic relations case.
(No. 00-1168—Submitted March 27, 2001—Decided July 5, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-747.
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SYLLABUS OF THE COURT
In a domestic relations case, matters of child custody and parental visitation are not
subject to arbitration.
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FRANCIS E. SWEENEY, SR., J.
{¶ 1} On October 1, 1993, the Franklin County Court of Common Pleas,
Division of Domestic Relations, granted appellant, Russell A. Kelm, and appellee,
Amy K. Kelm, a judgment of divorce. The judgment incorporated the parties’
shared parenting plan, which provided, inter alia, that any future disputes between
the parties regarding child custody or visitation would be submitted to arbitration.
{¶ 2} On May 10, 1999, appellee filed in the domestic relations court a
motion to modify or terminate the shared parenting plan. Appellant responded by
filing a motion to stay proceedings on appellee’s motion and to compel arbitration
pursuant to the shared parenting plan. On June 25, 1999, the trial court issued a
judgment entry overruling appellant’s motion. The trial court concluded that, under
Ohio law, matters relating to child custody are not subject to arbitration.
{¶ 3} Appellant appealed the trial court’s decision to the Tenth District
Court of Appeals, arguing that the trial court erred in failing to enforce the
arbitration agreement. The court of appeals rejected this assignment of error and
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affirmed the judgment of the trial court, holding that the use of arbitration to resolve
child custody or visitation disputes conflicts with the duty of the domestic relations
courts to protect the best interests of children. The court of appeals further held that
appellee has not, by virtue of her being a party to the shared parenting plan, waived
her right to challenge the arbitration clause. The court of appeals also concluded
that appellee’s challenge is not barred under the doctrine of res judicata.
{¶ 4} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
{¶ 5} We are asked to decide whether, in a domestic relations case, matters
relating to child custody and visitation may be resolved through arbitration. For the
reasons that follow, we hold that these matters cannot be resolved through
arbitration. Only the courts are empowered to resolve disputes relating to child
custody and visitation.
{¶ 6} The parties’ divorce has a long and convoluted history. It has already
produced one decision from this court, Kelm v. Kelm (1993), 68 Ohio St.3d 26,
623
N.E.2d 39 (“Kelm I”). In Kelm I, we were asked to decide whether an arbitration
clause in the parties’ antenuptial agreement was enforceable as to matters relating
to spousal and child support. We held that these support matters could be made
subject to an agreement to arbitrate.
Id. at paragraph one of the syllabus. In so
holding, we recognized that, under the doctrine of parens patriae,1 courts are
entrusted to protect the best interests of children.
Id. at 30,
623 N.E.2d at 42. We
concluded, however, that permitting parents to arbitrate child support does not
interfere with the judicial protection of the best interests of children. In short, we
saw “no valid reason why the arbitration process should not be available in the area
of child support; the advantages of arbitration in domestic disputes outweigh any
1. Parens patriae means, literally, “parent of his or her country,” and refers to the role of the state
as sovereign and guardian of persons under legal disability. Black’s Law Dictionary (7 Ed.1999)
1137.
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January Term, 2001
disadvantages.” Id. Appellant urges us to extend our holding in Kelm I to allow
matters of child custody and visitation to be resolved through arbitration. We
decline to do so.
{¶ 7} While we recognize the important impact that monetary support can
have upon a child’s life, we believe that custody and visitation have a much greater
impact upon the child in terms of both the child’s daily life and his or her long-term
development. Custody and visitation have the potential to affect countless aspects
of a child’s life, including the child’s relationships with his or her parents, the
child’s relationships with extended family, the child’s social and cultural
upbringing, and even, in some unfortunate cases, the child’s physical and emotional
security. More than support determinations, “ ‘determinations of custody go to the
very core of the child’s welfare and best interests.’ ” Pulfer v. Pulfer (1996), 110
Ohio App.3d 90, 94,
673 N.E.2d 656, 658, quoting Masters v. Masters (1986),
201
Conn. 50, 67,
513 A.2d 104, 113. “[T]he process of arbitration, useful when the
mundane matter of the amount of support is in issue, is less so when the delicate
balancing of the factors composing the best interests of a child is at issue.” Nestel
v. Nestel (1972),
38 A.D.2d 942, 943,
331 N.Y.S.2d 241, 243. For this reason, we
are less inclined than we were in Kelm I to permit arbitration to encroach upon the
trial court’s traditional role as parens patriae.
{¶ 8} As appellant points out, there are decisions from a number of
jurisdictions upholding the use of arbitration to settle disputes over child custody
and visitation. See, e.g., Dick v. Dick (1995), 210 Mich.App. 576,
534 N.W.2d 185;
Kovacs v. Kovacs (1993),
98 Md.App. 289,
633 A.2d 425; Miller v. Miller (1993),
423 Pa.Super. 162,
620 A.2d 1161; Crutchley v. Crutchley (1982),
306 N.C. 518,
293 S.E.2d 793. Typically, these decisions protect the courts’ role as parens patriae
by making the arbitrator’s decision subject to de novo review and modification by
the courts. See id. at 524, 293 S.E.2d at 797; Kovacs,
98 Md.App. at 299-302,
633
A.2d at 431-432; Miller,
423 Pa.Super. at 169-170,
620 A.2d at 1165; but, see,
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Dick, 210 Mich.App. at 588-589,
534 N.W.2d at 191 (permitting only limited
review by the courts). While this approach preserves the court’s role as parens
patriae, we believe that, ultimately, it advances neither the children’s best interests
nor the basic goals underlying arbitration.
{¶ 9} A two-stage procedure consisting of an arbitrator’s decision followed
by de novo judicial review “is certain to be wasteful of time and expense and result
in a duplication of effort.” Nestel, 38 A.D.2d at 943,
331 N.Y.S.2d at 243. Clearly,
it does not seem advantageous to the best interests of children that questions of
custody be postponed “ ‘while a rehearsal of the decisive inquiry is held.’ ” Glauber
v. Glauber (1993),
192 A.D.2d 94, 98,
600 N.Y.S.2d 740, 743, quoting Agur v.
Agur (1969),
32 A.D.2d 16, 21,
298 N.Y.S.2d 772, 778.
{¶ 10} The protracted two-stage process adopted by some courts also
frustrates the very goals underlying arbitration. “ ‘Arbitration is favored because it
provides the parties thereto with a relatively expeditious and economical means of
resolving a dispute … [and] “ … has the additional advantage of unburdening
crowded court dockets.” ’ ” Kelm I, 68 Ohio St.3d at 29,
623 N.E.2d at 41, quoting
Schaefer v. Allstate Ins. Co. (1992),
63 Ohio St.3d 708, 712,
590 N.E.2d 1242,
1245. A two-stage process consisting of both arbitration and judicial review
achieves none of these goals.
{¶ 11} Furthermore, “[i]f an issue is to be arbitrated, the expectation [of the
parties] is that an award will not be disturbed.” Glauber, 192 A.D.2d at 98,
600
N.Y.S.2d at 743. De novo review destroys this expectation. Thus, there is an
inevitable tension between the court’s traditional responsibility to protect the best
interests of children and the parties’ expectation that an arbitration award will be
final.
{¶ 12} Appellant argues that because the shared parenting plan contained
an agreement to arbitrate any future custody and visitation disputes, and because
this agreement was, by consent of both parties, incorporated into the trial court’s
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January Term, 2001
judgment of divorce, appellee could not subsequently challenge the arbitration
agreement. Essentially, appellant argues that by agreeing to arbitrate custody and
visitation matters, appellee has waived her right to challenge the agreement. We
disagree.
{¶ 13} The law permits parties to voluntarily waive a number of important
legal rights, Sanitary Commercial Services, Inc. v. Shank (1991), 57 Ohio St.3d
178, 180-181,
566 N.E.2d 1215, 1218, and in the interest of finality, courts are
usually quite reluctant to relieve parties of the consequences of these choices. See,
e.g., Knapp v. Knapp (1986),
24 Ohio St.3d 141, 24 OBR 362,
493 N.E.2d 1353
(holding that a couple who had obtained a dissolution of their marriage waived their
right to challenge the alimony provisions in their separation agreement, which had
been incorporated into the trial court’s dissolution decree). However, a waiver of
rights will be recognized only when the waiver does not violate public policy.
Shank,
57 Ohio St.3d at 180,
566 N.E.2d at 1218. A fundamental flaw in appellant’s
argument is its assumption that arbitration of custody and visitation matters does
not violate public policy. We have already concluded, for the reasons set forth
above, that it does.
{¶ 14} To hold that appellee has waived her right to challenge the
arbitration agreement and to permit arbitration of the parties’ child custody and
visitation disputes would prevent the trial court from fulfilling its role as parens
patriae. Because this is contrary to public policy, we conclude that appellee has
not, by virtue of her acquiescence to the original shared parenting plan, waived her
right to challenge that plan’s provision for arbitration of custody and visitation
matters.
{¶ 15} There is an even more fundamental flaw in appellant’s waiver
analysis. With respect to matters of custody and visitation, the central focus is not,
as appellant suggests, the rights of the parents but is, rather, the best interests of the
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children. See R.C. 3109.04(B)(1).2 The duty owed by the courts to children under
the doctrine of parens patriae cannot be severed by agreement of the parties. It
stands to reason that “[i]f parents cannot bind the court by an agreement affecting
the interests of their children, they cannot bind the court by agreeing to let someone
else, an arbitrator, make such a decision for them.” Kovacs, 98 Md.App. at 300,
633 A.2d at 431. “As the representative of the State, the [court’s] responsibility to
ensure the best interests of the children supersedes that of the parents.”
Id. at 301,
633 A.2d at 431.
{¶ 16} Finally, appellant argues that because appellee could have mounted
a challenge to the arbitration clause in a previous action, she is now barred from
bringing this challenge under the doctrine of res judicata. This argument, too, lacks
merit.
{¶ 17} Under the doctrine of res judicata, “[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising
out of the transaction or occurrence that was the subject matter of the previous
action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379,
653 N.E.2d 226,
syllabus. Res judicata operates to bar litigation of “ ‘all claims which were or might
have been litigated in a first lawsuit.’ ” (Emphasis omitted.) Id. at 382,
653 N.E.2d
at 229, quoting Natl. Amusements, Inc. v. Springdale (1990),
53 Ohio St.3d 60, 62,
558 N.E.2d 1178, 1180.
{¶ 18} It is true that any question as to the enforceability of the arbitration
clause could have been litigated in the first divorce action, before the shared
parenting plan was even adopted by the trial court. Nevertheless, we find that it
would be inappropriate to invoke res judicata in this case.
2. R.C. 3109.04(B)(1) provides:
“When making the allocation of the parental rights and responsibilities for the care of the
children … in an original proceeding or in any proceeding for modification of a prior order of the
court making the allocation, the court shall take into account that which would be in the best interest
of the children.”
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{¶ 19} In many states, including Ohio, an allocation of custody and
visitation rights remains subject to future modification by the trial court. For this
reason, a number of courts have held that the doctrine of res judicata should not be
applied strictly in cases involving child custody and visitation. See, e.g., Childers
v. Childers (Miss.1998), 717 So.2d 1279, 1282; Lipscomb v. Lipscomb (Ala.1994),
660 So.2d 986, 989; People ex rel. Farina v. Sensor (1998),
299 Ill.App.3d 333,
336,
233 Ill.Dec. 873, 875,
701 N.E.2d 1147, 1149. We find these decisions
persuasive.
{¶ 20} In Ohio, the authority of the domestic relations courts to modify their
own custody and visitation orders is found in R.C. 3109.04. For example, R.C.
3109.04(E)(1)(a) allows modification when “a change has occurred in the
circumstances of the child, the child’s residential parent, or either of the parents
subject to a shared parenting decree, and … modification is necessary to serve
the best interest of the child.” Thus, as a practical matter, a custody and visitation
order is never absolutely final. This fact makes application of res judicata
impractical. The very purpose of res judicata is to deter the repeated litigation of
resolved issues, thereby ensuring finality in judgments and the conservation of
judicial resources. Grava, 73 Ohio St.3d at 383-384, 653 N.E.2d at 230. However,
in the area of custody and visitation, we sacrifice finality and some of our limited
judicial resources in order to secure a higher value—the best interests of children.
{¶ 21} Hence, appellee’s failure to challenge the arbitration clause in the
previous divorce action could not deprive the trial court of jurisdiction to consider
appellee’s subsequent motion to modify or terminate the shared parenting plan. The
trial court has a continuing responsibility under R.C. 3109.04(B)(1) and (E)(1)(a)
to protect the best interests of the children. As we have already held, the parties’
agreement to arbitrate custody and visitation disputes impermissibly interferes with
the court’s ability to carry out this responsibility. The doctrine of res judicata, like
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the doctrine of waiver, cannot be relied upon to enforce this otherwise
unenforceable agreement.
{¶ 22} For the foregoing reasons, we hold that in a domestic relations case,
matters of child custody and parental visitation are not subject to arbitration. The
authority to resolve disputes over custody and visitation rests exclusively with the
courts. Any agreement to the contrary is void and unenforceable.
Judgment affirmed.
RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., concurs separately.
COOK, J., concurs in syllabus and judgment.
DOUGLAS, J., concurs in judgment.
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MOYER, C.J., concurring.
{¶ 23} I concur in the majority decision with the observation that it is
confined to arbitration and does not apply to agreements reached regarding
visitation and custody through the process of mediation.
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Law Offices of Russell A. Kelm and Russell A. Kelm, for appellant.
Blaugrund, Herbert & Martin, Inc. and Steven E. Hillman, for appellee.
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