In Georgia, one often hears of spouses resolving their divorce issues through mediation or court hearing. Another, less used, option in this state is binding arbitration. Specifically, “it 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.” O.C.G.A. §19-9-1.1. The important thing to note about binding arbitration is that it is binding. If you are unhappy with the result, you are stuck with it, unless an error was made along the way. One Georgia man recently learned this the heard way.
In Brazzel v. Brazzel, the parties divorced and were awarded joint legal and physical custody of their children, with the wife having primary physical custody. Several years later, the parties filed dueling custody modification petitions and contempt petitions, and agreed to submit to binding arbitration. Brazzel v. Brazzel, A16A0680, June 10, 2016. After hearing evidence, the arbitrator found that there had been a material change in condition, and awarded primary physical and legal custody to the mother, with secondary legal and physical custody to the father. Pursuant to the Georgia Arbitration Code (“GAC”), the mother filed a motion for the superior court to confirm the arbitrator’s decision. The father filed a motion to vacate said decision. After the superior court confirmed the decision, the father appealed, claiming that the court erred in finding it was bound by the arbitrator’s decision and finding it had no independent duty to determine the best interests of the children.
The Court of Appeals of Georgia rejected the father’s contentions, affirming that, when an issue has been submitted to and a decision rendered via binding arbitration under O.C.G.A. §19-9-1.1, a superior court is not authorized “to independently decide the custody issues based on the court’s determination of the best interests of the children, or to substitute court custody decisions for the decisions of the arbitrator.” Id. Since there was no reason found that the arbitrator erred in any way and the court considered the circumstances of the case before confirming the arbitrator’s decision, the decision stands.
The important thing to take away from the Brazzel case is that arbitration is binding. Though it is less formal than a hearing and does not take place in a courtroom, the effect is still the same. As this case shows, a superior court will not overrule an arbitrator’s decision just because one party is unhappy.