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Arbitration in Family Law Cases: Parenting Time and Child-Related Issues

On Behalf of | Aug 19, 2020 | Alternative Dispute Resolution, Family Law

When going through the normal court process, if you believe there was an error made by the judge, you can appeal most orders entered in the trial court by a higher court. The higher court has the option of affirming the order, overturning the order, or sending it back down to the trial court with instruction to revisit the order.

Most types of arbitration, including arbitrations regarding division of property, division of personal property/household items and maintenance (alimony), are final and not reviewable by the court. Unless there is an issue with the process itself (you were not given an opportunity to present your case or did not receive notice of the arbitration process) or there was a conflict of interest, the arbitration award cannot be set aside or reviewed by the judge. It is also important to understand that arbitrators do not need to follow the law in Colorado when deciding how to divide property, award maintenance or award attorney fees. Because they do not need to follow the law (although most do) and because their decisions cannot be reviewed by the court, you need to be very careful when selecting an arbitrator.

In family law cases, there is an exception to the general rule that an arbitration award is not reviewable by a judge. In arbitrations involving parenting time, decision-making or child support, the court is ultimately responsible for the best interests of the child and always retains the authority to review an arbitration award for errors in the law or bad judgment. Arbitrators must also follow the law when resolving child-centered disputes.

To trigger the court’s review of an arbitrator’s award regarding child issues, the parent challenging the award must file a motion with the court within 35 days from the date of the arbitration award and seek a “de novo” hearing of that issue with the court. A “de novo” hearing is essentially a redo of the arbitration hearing from scratch. The court then has the discretion whether to grant a motion for a de novo hearing.

There is substantial financial risk involved in challenging an arbitrator’s award regarding child issues. If a court grants a de novo hearing and upholds the arbitrator’s award, the parent challenging the award is required to pay the other parent’s attorney fees and the arbitrator’s fees (if the arbitrator responded to the de novo hearing request).

Before agreeing to arbitration, consult with an attorney about selection of the arbitrator and what type of review of the arbitrator’s award is available.

Authored by: James Courdes, Of Counsel Attorney and Mediator