The Oklahoma Bar Journal March 2025

referee submits written findings subject to the parties’ objections, which must be approved by the court in a decree. Arbitration is an adjudicative process, like a private trial by a referee. There is little to no dis tinction between the two pro cesses. A best practice for a family court arbitration under current Oklahoma law would be for the parties to have their agreement to arbitrate submitted as a referral order. The referral order would approve the arbitration, designate the qualified arbitrator or arbi tral institution and appoint the arbitrator as a referee of the court under 12 O.S. §611 et seq . When the arbitration concludes, the par ties must submit the award with findings of fact and conclusions of law consistent with the referee statute as a decree or final order for approval to the court. Then,

OKLAHOMA LAW ALLOWS PRIVATE DIVORCE TRIALS UNDER THE REFEREE STATUTE IF THE COURT RETAINS JURISDICTION TO ADOPT OR REJECT THE REFEREE’S FINDINGS The parties to a civil action, such as a divorce or other family law matter, may consent, in writing, to the submission of factual and legal issues to a referee. 15 Oklahoma law does not prohibit private attorneys from serving as a referee if they would otherwise be qualified to serve as a judge. 16 The referee’s decision is subject to judicial over sight from the appointing judge, with a process for parties to object to the referee’s findings. 17 In a private trial proceeding, the parties agree to use the referee statute to resolve their issues and submit an agreed order for court approval. When the private trial ends, the

knowledgeable in domestic rela tions law and family counseling. The determination of the arbitrator shall be final and binding on the parties to the proceedings until further order of the court. If a parent refuses to consent to arbitration, the court may termi nate the joint custody decree. 13 [Emphasis added.] Although this provision is limited to the narrow instance of parties disagreeing to “an interpre tation of a provision of the (joint custody) plan,” it is instructive as to the Oklahoma Legislature’s intent to allow arbitration as a dispute resolution method in family law disputes. The qualifications of the contemplated arbitrator are simply impartiality and knowledge of domestic relations law and fam ily counseling. 14 By making the decision “final and binding” until further order, the statute embraces the finality of arbitral decisions. Likewise, it also teaches that the consequences may be severe for a party who refuses to participate in a court-ordered arbitration by imposing the possible sanction of losing joint custody. No Oklahoma case law explic itly allows or prohibits arbitrations involving child custody disputes. It is difficult to imagine that appel late courts would allow it in certain situations, such as contemplated by the joint custody statute, but not in others.

A best practice for a family court arbitration under current Oklahoma law would be for the parties to have their agreement to arbitrate submitted as a referral order. The referral order would approve the arbitration, designate the qualified arbitrator or arbitral institution and appoint the arbitrator as a referee of the court under 12 O.S. §611 et seq .

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

12 | MARCH 2025

THE OKLAHOMA BAR JOURNAL