Singh v. Singh

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Gunjit Rick Singh, Respondent,

v.

Simran P. Singh, Appellant.

Appellate Case No. 2015-000434

Appeal From Charleston County
Gordon B. Jenkinson, Family Court Judge
Judy L. McMahon, Family Court Judge
Jocelyn B. Cate, Family Court Judge
Jack A. Landis, Family Court Judge
Daniel E. Martin, Jr., Family Court Judge

Opinion No. 5698
Heard February 12, 2019 – Filed December 18, 2019

VACATED AND REMANDED

O. Grady Query, Michael W. Sautter, and Brooke Hurt
Maiden, all of Query Sautter & Associates, LLC, of
Charleston, for Appellant.

C. Vance Stricklin, Jr., of Moore Taylor Law Firm, P.A.,
of West Columbia, Robert N. Rosen, of Rosen Law Firm,
LLC, of Charleston, and Katherine Carruth Goode, of
Winnsboro, for Respondent.
LOCKEMY, C.J.: Simran P. Singh appeals various family court orders1
approving agreements to arbitrate, arguing binding arbitration of issues pertaining
to child custody, visitation, and support violates the children's constitutional rights
and contradicts state law and court rules. We vacate and remand.

FACTS

Simran P. Singh (Mother) and Gunjit Rick Singh (Father) separated in January
2012 and subsequently entered into a settlement agreement (the Settlement
Agreement). Mother and Father have two children: S.K.S., who was born in 2001,
and H.K.S.S., who was born in 2010. In the Settlement Agreement, Mother and
Father agreed the children would reside primarily with Mother. The parties also
agreed to submit certain potential disputes regarding child custody, child support,
and visitation to a mutually agreed-upon arbitrator for binding arbitration. They
further agreed the arbitrator's decisions as to such issues would "be binding and
non-appealable" and the arbitrator's written award would "operate as a conclusive
resolution" of such issues. In 2013, the family court granted the parties a divorce
based on one year's separation and approved the Settlement Agreement, which the
family court incorporated into its final divorce decree.

Later that year, Father filed an action in the family court seeking modification of
custody, visitation, and child support. Mother and Father entered a consent order,
agreeing to dismiss Father's complaint and submit the matter to arbitration.
Pursuant to this agreement, the family court issued an order to arbitrate, noting the
parties understood the arbitrator's decision would "be final and binding upon them"
and they had no right to apply to any court for relief if either was dissatisfied with
that decision.

An arbitration was held, and the arbitrator issued a temporary arbitration award,
determining Mother was to retain physical custody over the children and Father
would have visitation every other weekend. Thereafter, the arbitrator conducted a
final arbitration to determine custody, visitation, and other matters.2 Before the
arbitrator issued the final award, the parties again amended their agreement to

1
Five family court judges issued orders in this case.
2
Prior to the final arbitration, the parties modified their agreement and the family
court issued an order reflecting this modification; the only change was the addition
of a specification that attorney's fees and costs would include the fees and costs
incurred in arguing an earlier motion.
arbitrate, and the family court issued an order to arbitrate reflecting the
amendment. That order included the following:

d. The parties understand that the Arbitration rules do
not give explicit authority for the parties to submit child-
related issues . . . to binding arbitration. However, the
parties, upon advice of counsel and believing it to be in
the best interest of their minor children, are submitting
the issues . . . related to custody and support of their
minor children . . . to binding arbitration. . . . The parties
further acknowledge that this provision is submitted with
their mutual consent and upon the authority of this Order
of the Family Court. . . .
....

h. . . . . The parties' decision to refer this case for
final, binding arbitration is made pursuant to the South
Carolina Uniform Arbitration Act[3] . . . . It is the
intention of the parties and the Order of this Court that
beyond a request to the Arbitrator to reconsider issues
which he had decided, the decision of the Arbitrator shall
be final and binding except to the limited extent provided
in the statutory procedure.

j. The parties also understand that the decision of the
Arbitrator shall, pursuant to the South Carolina Uniform
Arbitration Act . . . , become the Order of the Family
Court and shall be enforceable by the Family Court, just
as any Final Order. . . . The parties have agreed that they
shall abide by and perform any and all aspects of the
award rendered under arbitration and that a judgment
shall be entered on each and every aspect of the award, as
would otherwise be allowed with any Order of this Court.

The amended agreement to arbitrate also contained a provision requiring a party to
immediately pay a monetary penalty as liquidated damages if either party
attempted to avail himself of the family court's judgment by appealing the award or
asking the family court to change or modify the award. Although we are struck by

3
S.C. Code Ann. §§ 15-48-10 to -240 (2005).
the parties' assumption of the authority to instruct the family court that it must
accept the award as an order of the family court, the most astonishing condition of
the amended agreement to arbitrate imposed an automatic and immediate penalty
of $10,000 upon any party seeking to exercise their rights in a court of law as a
punishment for challenging the arbitrator's decision.

Thereafter, the arbitrator issued a partial arbitration award and, subsequently, a
final arbitration award. In both, the arbitrator found a substantial and material
change in circumstances had occurred and awarded custody of the children to
Father with Mother to have visitation every other weekend and every other
Wednesday. The final arbitration award also addressed child support and other
issues between the parties.

In a departure from her previous endorsement of arbitration, Mother moved for
emergency relief, asking the family court to vacate the partial and final arbitration
awards as to the issues of custody, visitation, and child support. Mother argued the
awards were void pursuant to Rule 60(b)(4) of the South Carolina Rules of Civil
Procedure4 because they violated the South Carolina Constitution and South
Carolina statutory and case law. The family court held a hearing and issued two
orders: the first denied Mother's Rule 60(b) motion as premature, and the second
confirmed the partial and final arbitration awards.

Mother then filed five motions to vacate the various orders of the family court
relating to the parties' agreements to arbitrate, including the orders confirming the
arbitration awards and denying Mother's Rule 60(b) claims. In these motions,
Mother argued the orders were void under Rule 60(b)(4) because they purported to
approve agreements to submit children's issues to binding arbitration or facilitate
binding arbitration of children's issues.

The family court held hearings on each motion. The court initially granted the
motion to vacate the order approving the Settlement Agreement and the consent
order dismissing Father's complaint and submitting the matter to arbitration;
however, the court subsequently reversed itself and denied the motion, finding (1)
Mother was estopped from objecting to the arbitration because she procured and
accepted a benefit from the Settlement Agreement and the consent order of

4
Rule 60(b)(4) provides that "[o]n motion and upon such terms as are just, the
court may relieve a party or his legal representative from a final judgment, order,
or proceeding . . . . [when] the judgment is void."
dismissal, (2) she waived her right to object by participating in the arbitration
proceedings, (3) her due process rights were not violated because parents have the
right to make decisions for their children, and (4) she waived her constitutional
rights by agreeing to the arbitration and failing to timely challenge the arbitration.
The family court ultimately denied the remainder of Mother's Rule 60(b)(4)
motions.5

While Mother's Rule 60(b)(4) motions were pending before the family court,
Mother filed a Notice of Appeal of the order confirming the partial and final
arbitration awards, which we held in abeyance until the family court ruled upon
Mother's motions. Thereafter, Mother timely appealed all orders denying her Rule
60(b)(4) motions. We now consider all of the orders Mother appealed.

STANDARD OF REVIEW

"Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings." Stone v. Thompson, 428 S.C. 79, 833 S.E.2d
266 (2019). The family court has discretion in deciding whether to grant or deny a
motion made pursuant to Rule 60(b). Ware v. Ware, 404 S.C. 1, 10, 743 S.E.2d
817, 822 (2013). Thus, our review of such procedural rulings "is limited to
determining whether there was an abuse of discretion." BB&T v. Taylor, 369 S.C.
548, 633 S.C. 548, 551, 633 S.E.2d 501, 503 (2006). "We review questions of law
de novo." Ziegler v. Dorchester County, 426 S.C. 615, 619, 828 S.E.2d 218, 220
(2019).

Although the family court's resolution of a motion under Rule 60(b) is addressed to
its sound discretion, the crux of the question presented to this court on appeal—
whether issues involving children can be subject to binding arbitration—is a
question of law. Thus, we review this issue de novo.

LAW/ANALYSIS

I. Arbitration of Children's Issues

As evidenced in the Settlement Agreement and the family court's various orders
approving the parties' modifications to their agreement to arbitrate, both parties
repeatedly agreed any arbitration award would be non-appealable. We also

5
The family court dismissed two of Mother's motions due to mootness, finding
subsequent orders superseded the orders challenged in those motions.
acknowledge that throughout the foregoing proceedings, Mother expressly agreed
to submit these issues to binding arbitration and availed herself of the benefits of
arbitration until the outcome no longer suited her. Nonetheless, the resolution of
this question does not depend upon the rights of either parent or their waiver
thereof; rather, the question we must decide is whether the family court—upon the
request of the parents—can delegate its duty to determine the best interest of
children to a private individual. We find it cannot.

"Both federal and state policy favor arbitrating disputes." Towles v. United
HealthCare Corp., 338 S.C. 29, 34, 524 S.E.2d 839, 842 (Ct. App. 1999). "Any
doubts concerning the scope of arbitrable issues should be resolved in favor of
arbitration." Carolina Care Plan, Inc. v. United HealthCare Servs., Inc., 361 S.C.
544, 550, 606 S.E.2d 752, 755 (2004). In South Carolina, arbitration agreements
are governed by the Uniform Arbitration Act (the Arbitration Act). S.C. Code
Ann. §§ 15-48-10 to -240 (2005). The Arbitration Act provides that a "written
agreement to submit any existing controversy to arbitration . . . is valid,
enforceable and irrevocable, save upon such grounds as exist at law or in equity for
the revocation of any contract." § 15-48-10(a) (emphasis added). Section 15-48-
10(b) sets forth exceptions to the application of the Arbitration Act. As our
supreme court has explained, because the terms of section 15-48-10 are clear, "the
court must apply those terms according to their literal meaning." Soil Remediation
Co. v. Nu-Way Envtl., Inc., 323 S.C. 454, 457, 476 S.E.2d 149, 151 (1996).
Further, "[w]here the terms of statutes are positive and unambiguous, exceptions
not made by the Legislature cannot be read into the Act by implication." Vernon v.
Harleysville Mut. Cas. Co., 244 S.C. 152, 157, 135 S.E.2d 841, 844 (1964).
Section 15-48-10 does not specifically exclude the arbitration of issues involving
child custody, visitation, and support. Therefore, we cannot read such an
exception into the Arbitration Act.

Article V, sections 1 and 12 of the South Carolina Constitution empowered the
General Assembly to vest "[j]urisdiction . . . in matters appertaining to minors"
with the courts. Pursuant to this authority, the General Assembly enacted section
63-3-530 of the South Carolina Code (2010 & Supp. 2019), which vested family
courts with exclusive jurisdiction over matters involving child custody, visitation,
and support. However, this provision also gave family courts jurisdiction

to require the parties to engage in court-mandated
mediation pursuant to Family Court Mediation Rules or
to issue consent orders authorizing parties to engage in
any form of alternate dispute resolution which does not
 violate the rules of the court or the laws of South
Carolina; provided however, the parties in consensual
mediation must designate any arbiter or mediator by
unanimous consent subject to the approval of the
court . . . .

§ 63-3-530(39) (emphasis added). In addition, the Arbitration Act provides that
when parties enter into an agreement to arbitrate pursuant to section 15-48-10, the
making of such agreement "confers jurisdiction on the court to enforce the
agreement under this chapter and to enter judgment on an award
thereunder." § 15-48-180.

Rule 3 of the South Carolina Court-Annexed Alternative Dispute Resolution Rules
(the ADR Rules) identifies the actions subject to alternative dispute resolution:

All civil actions filed in the circuit court, all cases in
which a Notice of Intent to File Suit is filed pursuant to
the provisions of S.C. Code § 15-79-125(A), and all
contested issues in domestic relations actions filed in
family court, except for cases set forth in Rule 3(b) or (c),
are subject to court-ordered mediation under these rules
unless the parties agree to conduct an arbitration. The
parties may select their own neutral and may mediate,
arbitrate or submit to early neutral evaluation at any time.

Rule 3(a), SCADR (emphasis added); see also Rule 2, SCADR (defining
arbitration as "[a]n informal process in which a third-party arbitrator issues an
award deciding the issues in controversy" and providing such "award may be
binding or non-binding as specified in these rules"). Pursuant to Rule 3(b) of the
ADR Rules, "ADR is not required for" the following:

(1) special proceedings, or actions seeking extraordinary
relief such as mandamus, habeas corpus, or prohibition;

(2) requests for temporary relief;

(3) appeals;

(4) post-conviction relief (PCR) matters;
 (5) contempt of court proceedings;

(6) forfeiture proceedings brought by governmental
entities;

(7) mortgage foreclosures;

(8) family court cases initiated by the South Carolina
Department of Social Services; and

(9) cases that have been previously subjected to an ADR
conference, unless otherwise required by this rule or by
statute.

Rule 3(a) provides all domestic relations actions filed in family court are subject to
court-ordered mediation. Further, Rule 3(b) does not specifically except actions
involving children's issues from alternative dispute resolution.

Rule 4 of the ADR rules gives parties express permission to submit certain issues
in a domestic relations action to binding arbitration but does not specifically
include issues relating to children. See Rule 4(d)(2), SCADR (providing "the
parties may submit the issues of property and alimony to binding arbitration in
accordance with subparagraph (5)") (emphasis added); Rule 4(d)(5), SCACR ("In
lieu of mediation, the parties may elect to submit issues of property and alimony to
binding arbitration in accordance with the . . . Arbitration Act . . . or submit all
issues to early neutral evaluation pursuant to these rules.") (emphasis added).
Although the language of Rule 4 suggests only issues of property and alimony may
be resolved by binding arbitration, neither rule expressly prohibits parties from
agreeing to arbitrate disputes involving child custody, visitation, or support.
Because neither our arbitration statutes nor the ADR rules speak directly to
disputes involving child custody, visitation, and support, we look to the role of the
family court in protecting the best interests of children.

Family courts in South Carolina have a unique role concerning the protection of
children's fundamental rights and interests. In Ex Parte Tillman, our supreme court
recognized children have fundamental rights under our state's Privileges and
Immunities Clause, stating,

[T]here is a liberty of children above the control of their
parents, which the courts of England and this country
 have always enforced. When the parent, in asserting his
claim to the custody of his child, disregards the
correlative right of the child to care and maintenance at
his hands, it is universally held that the right of the parent
is at an end, and the child for itself, or another on its
behalf, may assert the custody and control of the parent
to be an illegal restraint upon its liberty.

84 S.C. 552, 560, 66 S.E. 1049, 1052 (1910). More recently, in South Carolina
Department of Social Services v. Cochran, our supreme court determined,

[A] child has a fundamental interest in terminating
parental rights if the parent-child relationship inhibits
establishing secure, stable, and continuous relationships
found in a home with proper parental care. In balancing
these interests, the best interest of the child is paramount
to that of the parent.

364 S.C. 621, 626, 614 S.E.2d 642, 645 (2005). "Appellate courts must consider
the child's perspective, and not the parent's, as the primary concern when
determining whether [termination of parental rights] is appropriate." S.C. Dep't of
Soc. Servs. v. Sarah W., 402 S.C. 324, 343, 741 S.E.2d 739, 749-50 (2013).

In addition, we recognize a child's fundamental rights in many other circumstances.
See Schall v. Martin, 467 U.S. 253, (1984) (recognizing the due process rights of
juveniles in pretrial detentions); Parham v. J. R., 442 U.S. 584, 600 (1979) ("It is
not disputed that a child, in common with adults, has a substantial liberty interest
in not being confined unnecessarily for medical treatment."); Doe v. Bd. of
Trustees, Richland Sch. Dist. Two, 2015 WL 3885922, at *2 (S.C. Ct. App. June
24, 2015) (recognizing a student's procedural due process rights in a school transfer
proceeding); In re Arisha K.S., 331 S.C. 288, 293, 501 S.E.2d 128, 131 (Ct. App.
1998) (recognizing a child's due process rights in a juvenile proceeding).

Longstanding tradition of this state places the responsibility of protecting a child's
fundamental rights on the court system. As our supreme court expressed in 1910,

The question of the custody of minors and their illegal
restraint has always been recognized as a judicial
question to be determined by the courts. That it is the
function of the courts to decide issues of this kind has
 been held in this state by unbroken authority from the
[c]ase of [In re] Kottman, [11 S.C. Eq. (2 Hill Eq.) 363
(1834) . . . and Prather v. Prather[, 4 S.C. Eq. (4 Des.
Eq.) 33 (1809)], to Ex parte Rembert, 82 S.C. 336, 64
S.E. 150 [(1909)].

Tillman, 84 S.C. at 563, 66 S.E. at 1053 (citation omitted). This responsibility
originates from our recognition of the doctrine of parens patriae. The United
States Supreme Court explained this doctrine as follows:

Parens patriae means literally "parent of the country."
The parens patriae action has its roots in the common-
law concept of the "royal prerogative." The royal
prerogative included the right or responsibility to take
care of persons "who are legally unable, on account of
mental incapacity, whether it proceed from 1st. nonage:
2. idiocy: or 3. lunacy: to take proper care of themselves
and their property." At a fairly early date, American
courts recognized this common-law concept, but now in
the form of a legislative prerogative: "This prerogative of
parens patriae is inherent in the supreme power of every
State, whether that power is lodged in a royal person or
in the legislature [and] is a most beneficent
function . . . often necessary to be exercised in the
interests of humanity, and for the prevention of injury to
those who cannot protect themselves."

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600
(1982) (alteration in original) (footnotes omitted) (quoting Late Corp. of the
Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57
(1890)).

Our supreme court explained the doctrine in Cook v. Cobb:

[T]he state, as parens patriae, may limit one's parental
rights in order to promote a minor child's best interests.
This principle is founded upon the state's duty to protect
those of its citizens who are unable because of infancy to
take care of themselves, and on the right of the child, as
citizen and ward, to the state's protection. The right of a
 parent to the custody of his or her child is therefore
subject to the power of the court to protect the child's
welfare.

271 S.C. 136, 145, 245 S.E.2d 612, 617 (1978) (citations omitted). Our supreme
court, quoting Tillman, proclaimed, "The rights of the father and mother are both
subject to the still higher right of the child to have its welfare safeguarded." Id. at
145, 245 S.E.2d at 617 (quoting Tillman, 84 S.C. at 561, 66 S.E. at 1052).

Likewise, our supreme court recognized as a part of parens patriae, the "[f]amily
[c]ourt is vested with the exclusive jurisdiction to ensure that, in all matters
concerning a child, the best interest of the child is the paramount consideration."
In re Stephen W., 409 S.C. 73, 78, 761 S.E.2d 231, 234 (2014) (quoting Harris v.
Harris, 307 S.C. 351, 353, 415 S.E.2d 391, 393 (1992)); see also Cook, 271 S.C. at
140, 245 S.E.2d at 614 ("The welfare of the child and what is in [his] best interest
is the primary, paramount and controlling consideration of the court in all child
custody controversies."); Powell v. Powell, 256 S.C. 111, 116, 181 S.E.2d 13, 16
(1971) ("It is the duty of all courts to do that which is for the best interest of minor
children and to protect their rights at every stage of a proceeding, and this is
particular[ly] true where their custody is involved."); Joiner ex rel. Rivas v. Rivas,
342 S.C. 102, 536 S.E.2d 372 (2000) (noting our courts have a "duty to zealously
guard the rights of minors").

Our laws governing child custody reflect the legislature's recognition of this duty.
See S.C. Code Ann. §§ 63-15-10 to -260 (2010 & Supp. 2019). Section 63-15-30,
which pertains to a child's preference for custody, provides, "In determining the
best interests of the child, the court must consider the child's reasonable preference
for custody. The court shall place weight upon the preference based upon the
child's age, experience, maturity, judgment, and ability to express a preference."
(emphasis added). Section 63-15-230(A) states, "The court shall make the final
custody determination in the best interest of the child based upon the evidence
presented." (emphasis added). Moreover, section 63-15-240(B) provides that "[i]n
issuing or modifying a custody order, the court must consider the best interest of
the child." (emphasis added). Thus, South Carolina law and the public policy of
this state require the family court to maintain jurisdiction over issues involving
children to ensure their best interests are served.

Binding arbitration prevents family courts from acting as parens patriae to protect
the best interests of children because it largely precludes judicial review of an
arbitration award. "When a dispute is submitted to arbitration, the arbitrator
determines questions of both law and fact. Generally, an arbitration award is
conclusive and courts will refuse to review the merits of an award. An award will
be vacated only under narrow, limited circumstances." Gissel v. Hart, 382 S.C.
235, 241, 676 S.E.2d 320, 323 (2009) (citations omitted). In Gissel, our supreme
court further explained parties seeking to vacate an arbitration award face an
extremely high hurdle:

[F]or a court to vacate an arbitration award based upon
an arbitrator's manifest disregard of the law, the
governing law ignored by the arbitrator must be well
defined, explicit, and clearly applicable. Case law
presupposes something beyond a mere error in construing
or applying the law. Even a "clearly erroneous
interpretation of the contract" cannot be disturbed. The
focus is on the conduct of the arbitrator and presupposes
something beyond a mere error in construing or
applying the law. An arbitrator's "manifest disregard of
the law," as a basis for vacating an arbitration award[,]
occurs when the arbitrator knew of a governing legal
principle yet refused to apply it. Factual and legal errors
by arbitrators do not constitute an abuse of powers, and a
court is not required to review the merits of a decision so
long as the arbitrators do not exceed their powers.

Id. at 241-42, 676 S.E.2d at 323-24 (citations omitted).

Additionally, in Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App.
1999), we considered whether an arbitration award determining the parties'
property division was binding on the family court. Applying the Arbitration Act,
we concluded "the family court's traditional power to approve property and
separation agreements, which includes the power to consider the substantive
fairness of the agreement, simply does not extend to arbitration agreements and
awards presented to the family court." Id. at 482, 520 S.E.2d at 336. Thus, we
determined "the Arbitration Act prohibits the family court from exercising this
power when presented with arbitration agreements." Id. at 484, 520 S.E.2d at 337.
However, we also noted our holding was "limited to arbitration agreements
resolving issues of property or alimony, and d[id] not apply to agreements
involving child support or custody." Id. at 485 n.6, 520 S.E.2d at 338 n.6
(emphasis added).
As the foregoing demonstrates, the law governing arbitration generally forecloses
the family court's ability to review the merits of an arbitrator's decisions.
Furthermore, here, the parties' agreement to arbitrate goes one step further by
imposing a $10,000 fine upon any party who seeks review of the arbitrator's
decision.

Although our supreme court has not specifically addressed binding arbitration and
the family court's duty to protect the best interests of children,6 in Moseley v.
Mosier, our supreme court considered whether a family court could hold a party in
contempt for failing to pay the full amount of child support as provided in the
parties' separation agreement. 279 S.C. 348, 306 S.E.2d 624 (1983). There, the
court held the following with regard to the family court's jurisdiction concerning
child support:

Family courts may always modify child support upon a
proper showing of a change in either the child's needs or
the supporting parent's financial ability. Today we
clarify the issue by stating that family courts have
continuing jurisdiction to do whatever is in the best
interests of the child regardless of what the separation
agreement specifies.

Id. at 351, 306 S.E.2d at 626 (emphasis added) (citation omitted).

Subsequently, in Ex parte Messer, we recognized the enforceability of arbitration
clauses in separation agreements, generally. 333 S.C. 391, 509 S.E.2d 486 (Ct.
App. 1998). However, we noted, "Moseley makes it clear except for matters
relating to children, over which the family court retains jurisdiction to do whatever
is in their best interest, parties to a separation agreement may 'contract out of any
continuing judicial supervision of their relationship by the court.'" Id. at 395, 509
S.E.2d at 487-88 (emphasis added) (quoting Moseley, 279 S.C. at 353, 306 S.E.2d
at 627). We concluded, "Parties to a separation agreement may agree to submit all
disputes, other than those involving their children, to arbitration and thus deprive

6
However, in Kosciusko v. Parham, Op. No. 5690 (S.C. Ct. App. filed Nov. 6,
2019) (Shearouse Adv. Sh. No. 43 at 48, 52), we recently concluded the court rules
and established law of this state "preclude[d] the submission of children's issues to
binding arbitration" and held the family court lacked "subject-matter jurisdiction to
sanction or approve binding arbitration of children's issues").
the family court of its traditional powers of enforcement over those disputes." Id.
at 395, 509 S.E.2d at 488 (emphasis added).

Although we did not expressly address the enforceability of arbitration clauses
pertaining to the determination of children's issues in Messer, based on the
principles our supreme court expressed in Moseley, we find family courts must
retain jurisdiction over matters involving children to serve their best interests.

In the eyes of the court, an agreement to arbitrate matters involving children stands
in the same position as an agreement to award custody. The North Carolina
Supreme Court, in addressing the same issue we face, reasoned:

Just as parents cannot by agreement deprive the courts of
their duty to promote the best interests of their children,
they cannot do so by arbitration. Those provisions of an
arbitration award concerning custody and child support,
like those provisions in a separation agreement, will
remain reviewable and modifiable by the court. With
regard to these issues, the need for the court to protect the
welfare of children outweighs the advantages of
arbitration.

Crutchley v. Crutchley, 293 S.E.2d 793, 798 (N.C. 1982). We apply the same
rationale here. A court cannot be bound by an arbitration award and
simultaneously act as parens patriae on behalf of a child. Therefore, although
parties are free to agree to submit these issues to alternative dispute resolution, any
agreement to limit the family court's ability to review such an award is
unenforceable.

Prohibiting courts from overseeing arbitration decisions that involve the best
interest of a child infringes upon the public policy of this state. Our society has an
inherent interest in every child. As we stated, family courts are charged with
protecting that interest for every child. Arbitrators are not held to the same
standards as family court judges, and the law does not impose upon them the same
duty to act in the best interest of a child. According to the arbitration agreements
Mother and Father entered into, the arbitrator usurped all of the decision-making
authority of the family court but undertook none of the duties imposed upon the
court. Under the arbitration agreements, this court would not have the ability to
review the arbitrator's decision regardless of whether it conflicted with the best
interest of the children. This opens the question of whether family courts would
have the ability to modify such arbitration awards should a change in circumstance
occur after a final award.

We find the court rules, decisions, and laws of this state vest the family court with
exclusive jurisdiction to decide issues involving children in the best interests of the
children. Therefore, we hold any provision in an agreement or order that seeks to
bind the court or limit its jurisdiction to determine the best interests of a child is
unenforceable. Thus, the family court had no authority to order the submission of
or approve the parties' agreement to submit such issues to binding arbitration. By
doing so, the court improperly delegated its duty to safeguard the best interests of
the children. Although parties are free to agree on their own to engage in
alternative dispute resolution as to issues involving children, family courts must
retain continuing jurisdiction over those matters, and any agreement of the parties
to submit such issues to binding arbitration is unenforceable. 7 The family court
has the duty to review any awards de novo and may modify, change, or vacate an
arbitrator's findings as to child custody, visitation, and support in its own
determination of the best interests of the children. Accordingly, to the extent the
family court's orders sanctioned or ordered the submission of children's issues to
binding arbitration, we hold such orders are void ab initio.

II. Estoppel

The doctrine of equitable estoppel is often confused with waiver. "Equitable
estoppel occurs where a party is denied the right to plead or prove an otherwise
important fact because of something which he has done or failed to do." Parker v.
Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994). "Waiver is a voluntary
and intentional abandonment or relinquishment of a known right." Id. However,
"the distinction between waiver and estoppel is close, and sometimes the doctrines
merge into each other with almost imperceptible gradations." Janasik v. Fairway
Oaks Villas Horizontal Prop. Regime, 307 S.C. 339, 344, 415 S.E.2d 384, 388
(1992) (citations omitted) (internal quotations omitted).

Father argues Mother is estopped from challenging the arbitration of issues
pertaining to their children because she agreed to the arbitration provision in the
Settlement Agreement. We believe the argument presented by Father supports an
assertion of waiver, rather than estoppel. Regardless, as we explained above, this
case involves the fundamental rights of children in a custody action and the court's

7
Father concedes in his brief that the family court retains jurisdiction over issues of
custody, visitation, and support.
duty to protect the rights and interest of children. Thus, any waiver on the part of
the parent cannot be found to abrogate the rights of the child or the duty of the
court. See S.C. Dep't of Soc. Servs. v. Parker, 275 S.C. 176, 178, 268 S.E.2d 282,
283 (1980) (finding the doctrine of estoppel cannot "be applied to deprive [the
State] of the due exercise of its police power or to thwart its application of public
policy."); Blair v. Owens, 153 S.C. 94, 97, 150 S.E. 612, 613 (1929) ("The
authority of a guardian does not extend to the doing of any act detrimental to the
ward. He cannot waive, abandon, or release without consideration any right or
interest of the ward . . . .").

We acknowledge the parties made a conscious decision to include an arbitration
provision in the Settlement Agreement and reaffirmed their desire to arbitrate those
issues by entering into agreements to arbitrate, not once, but three times. A parent
cannot waive the rights of any child or the duty of the family court. See Am. Mut.
Fire Ins. Co. v. Passmore, 275 S.C. 618, 621-22, 274 S.E.2d 416, 418 (1981)
(finding an illegal insurance policy cannot be made valid by the invocation of the
doctrine of waiver or estoppel); Kelm v. Kelm, 749 N.E.2d 299, 304 (Ohio 2001)
(finding because arbitration of visitation and custody matters violates public
policy, "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."); see also Kosciusko, Op. No. 5960 (Shearouse
Adv. Sh. 43 at 50 n.12) (noting "subject-matter jurisdiction cannot be waived").

CONCLUSION

Based upon the foregoing, we vacate the family court's order confirming the
arbitration award and remand this case to the family court for a de novo hearing on
the issues of child custody, visitation, and support. Moreover, to the extent they
submit issues of child custody, visitation, and support to binding arbitration, any
portions of any orders appealed by Mother that purport to divest the family court of
its ability to determine the best interest of the minor children are void and
unenforceable.

VACATED AND REMANDED.

SHORT and MCDONALD, JJ., concur.