Appeals Court Reverses Denial of Motion to Compel Arbitration in Texas Custody Modification Case

Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises.  In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy.  In such circumstances, the party seeking arbitration may move to compel arbitration.  That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.

Arbitration Provision

In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration.  According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision.  The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency.  The provision specified it did not apply to enforcement actions.  It required a party seeking modification to give the other party written notice of the desire to mediate.  If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate.  The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.

In the fall of 2021, the father started trying to negotiate custody matters.  In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.

The mother petitioned for modification in October, asking the court to deny the father access to the children or alternatively to limit him to supervised visitation with no overnight possession, grant her the exclusive right to consent to invasive procedures, and grant her the exclusive right to consent to psychological and psychiatric treatment.

The father moved to compel arbitration and the court denied the motion.

The Father’s Appeal

The father appealed, arguing the trial court erred in denying the motion because the mother had agreed to arbitrate claims or controversies arising out of the final divorce decree.  In this case, neither party disputed there was a valid arbitration agreement.

Parties may agree in an arbitration agreement that the arbitrator determines the arbitrability of a matter.  The arbitration agreement in this case did not provide that an arbitrator would decide arbitrability of an issue, so the appeals court concluded that the decision was left to the court.

Once a party establishes there is valid agreement to arbitrate, there is a strong presumption in favor of arbitration. The father argued the mother’s modification petition was a claim or controversy significantly related to the final divorce decree and was therefore within the scope of the arbitration provision.

The mother argued, however, that the agreement specifically carved out both emergencies and modification proceedings.  The appeals court considered the language of the provision and concluded the mother’s interpretation confused language relating to mediation procedures with the arbitration provision. The appeals court concluded the “emergency” exception only applied to mediation.

Pursuant to the decree, the parties agreed to submit to binding arbitration “any claim or controversy arising out of [the] Final Decree of Divorce that cannot be settled by direct negotiations or mediation . . .” With the presumption in favor of arbitration, the appeals court concluded that modification was within the scope of the agreement to arbitrate.  The appeals court reversed the trial court’s order and remanded with instructions for the trial court to order arbitration on the merits of the petition for modification.

Seek Advice from an Experienced Alternative Dispute Resolution Lawyer

A party agreeing to an arbitration provision in a Texas divorce should fully understand the potential consequences of arbitration and what claims will be within the scope of the provision.  A knowledgeable Texas divorce arbitration attorney can advise you on the positive and negative aspects of arbitration and whether it may be appropriate in your case.  Contact McClure Law Group at 214.692.8200 for a consultation.


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