The Lawletter Vol 40 No 8
In In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, 11 N.E.3d 1, the two parties, of the Islamic faith, signed a separation agreement ("PNA"). The PNA named a prominent member of the local Islamic community as Counselor. It then provided:
Husband and Wife agree that an unreasonable divorce (without Counselor's express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children.
Id. ¶ 28, 11 N.E.3d at 10 (quoting PNA).
The trial court held that the PNA was completely unenforceable, and the appellate court affirmed. To begin with, by providing that a party who sought an "unreasonable divorce" lost custody, and by giving the Counselor exclusive power to define "unreasonable," the PNA delegated to the Counselor the power to determine custody. Such delegation violated public policy:
[A]lthough [Illinois law] seeks to "promote the amicable settlement of disputes" between the parties to a marriage (750 ILCS 5/102(3) (West 2012)) and expressly encourages the use of marital settlement agreements, the terms of such agreements that affect child support, custody, and visitation are subject to court oversight and must be approved by the court in order to be enforceable (750 ILCS 5/502(b) (West 2012)). Parents "are not at liberty to make agreements which affect the interests of their children without obtaining the approval of the court." In re Marriage of Ingram, 259 Ill.App.3d 685, 689, 197 Ill.Dec. 383, 631 N.E.2d 386 (1994).
Id. ¶ 36, 11 N.E.3d at 12 (citation omitted).
The PNA violates these principles in several respects. It gives Hammouda [the Counselor] sole power to determine which parent will have custody of the children, because he has sole power to declare whether a party seeking a divorce is doing so "reasonably" or "unreasonably" (paragraph 9) and also is the sole arbiter of whether either party has violated a provision of the PNA such that he or she should forfeit any claim to custody (paragraph 27). Although Hammouda promised to act in accordance with "Islamic Law, including the Holy Quran and Sunnah, to the best of his understanding" (paragraph 32), under the PNA he has no obligation to act in the best interests of the children. Moreover, even if he had undertaken to act in the best interests of the children, neither he nor the parties may substitute their judgment in this regard for the judgment of the court, which must approve any custody arrangement agreed upon by the parties.
Id. ¶ 37, 11 N.E.3d at 13.
In short, the PNA violated public policy by allowing custody to be determined by the arbitrator, in violation of public policy that custody and visitation decisions can be made only by judges.
The question then became whether the financial provisions of the PNA could be severed from the invalid custody provision. The court held not:
Hammouda's control over which party would have custody of the children therefore must be seen as of great importance to the parties, and we conclude that the removal of these terms would change the nature of the parties' overall bargain substantially, to the point that we cannot conclude that without them the parties would have entered into the PNA. Moreover, the issue of custody was intertwined in the PNA with financial issues. Under paragraph 27 of the PNA, Hammouda could decide whether a violation of any provision of the PNA—regardless of the provision's subject matter—should result in a party's loss of custody, loss of property rights, or both. As the custody terms were an essential aspect of the PNA and were intertwined with the financial terms, we do not believe that we can apply the severability clause and enforce the remaining provisions of the PNA.
Id. ¶ 39, 11 N.E.3d at 13-14 (court's emphasis). The court also suggested that the concept of an "unreasonable divorce" was too vague to be enforced.
Iqbal involved a religiously based agreement, but the courts have applied in other contexts the broad policy that only judges can make custody and visitation decisions. A particular area of emphasis has been attempts to delegate control over visitation to guardians ad litem, mental heath experts, and parenting coordinators. However professionally skilled these persons may be, they are not judges, and they cannot be given the power to make binding decisions on custody and visitation. See Stefan v. Stefan, 465 S.E.2d 734 (S.C. Ct. App. 1995); In re Marriage of Stephens, 810 N.W.2d 523 (Iowa Ct. App. 2012); E.A.P. ex rel. V.C.I. v. J.A.I., 421 S.W.3d 460 (Mo. Ct. App. 2013).