## Facts

- Parents married in 1980 and had two children (born 1983 and 1989); they separated in May 1989.
- After separation, the parents agreed in writing that Father would have custody.
- The parties divorced in 1990 and executed a marital settlement agreement addressing custody and other matters.
- The settlement included a mediation/arbitration clause providing that unresolved disputes would be decided by a board of arbitrators, with the written decision capable of being entered as a judgment.
- After Father sought child support, Mother invoked the mediation/arbitration process to address custody.
- Mediation failed; a three-arbitrator panel awarded custody to Mother.
- Father refused to transfer custody; Mother petitioned to have the settlement agreement entered as a court order and to enforce the arbitration custody award.

## Issues

1. Whether parents’ agreement for binding, nonjudicial arbitration of child custody disputes is void as against public policy.
2. Whether a trial court may refuse to confirm and enforce an arbitrators’ custody award on the ground that custody decisions require judicial determination under the best-interests-of-the-child standard.
3. What scope of judicial review applies to a custody arbitration award incorporated into a marital settlement agreement.

## Decision

- The Superior Court vacated the order striking the custody arbitration provisions and remanded.
- The court held that custody arbitration agreements are not categorically void as against public policy.
- The court held, however, that such agreements cannot remove the court’s nondelegable duty to determine the children’s best interests.
- The trial court erred by striking the arbitration clause outright and refusing to consider the custody award on its merits.
- On remand, the trial court was directed to review the arbitration award under the best-interests standard and then adopt, modify, or reject it accordingly.

## Legal Principles

- Parents may agree to use arbitration to resolve custody disputes, but the agreement cannot bind the court to accept the arbitral result.
- The best interests of the child control custody determinations and cannot be contracted away by parents.
- In custody matters, judicial review is not confined to narrow arbitration-vacatur grounds (e.g., fraud or denial of a hearing); the court must exercise independent judgment on best interests.
- A court may enter an arbitrators’ custody decision as an order only to the extent the court finds it serves the children’s best interests.

## Conclusion

A custody arbitration clause in a marital settlement agreement is not per se invalid, but it cannot displace judicial responsibility: the court must independently evaluate the arbitral custody award and may enforce it only if it serves the children’s best interests.


Miller v. Miller, 620 A.2d 1161 (Pa. Super. Ct. 1993)