Understanding the Impact of Arbitration Delegation Clauses on Family Law Litigation

Abigail Dalila Cerna, as Next Friend of R.W. v. Pearland Urban Air, LLC, 24-0273, May 23, 2025.

On appeal from Court of Appeals for the Fourteenth District of Texas

Synopsis

The Texas Supreme Court held that where a valid arbitration agreement contains an explicit delegation clause sending questions of scope and arbitrability to the arbitrator, a court must compel arbitration of disputes about whether the agreement covers later visits. Because the parties conceded the agreement’s validity and the clause “clearly and unmistakably” delegated scope questions, the arbitrator—not the trial court—must decide whether the agreement applied to the November visit.

Relevance to Family Law

Although this dispute arises from a commercial premises-release, the Court’s analysis governs the allocation of scope-versus-formation issues in any Texas context where arbitration provisions appear — including family-law instruments. Divorce settlement agreements, premarital agreements, parenting-plan arbitration clauses, and dispute-resolution provisions in property-partition or postnuptial agreements may be governed by the same principles: if counsel drafts delegation language that “clearly and unmistakably” assigns scope questions to an arbitrator, courts will decline to resolve applicability disputes and will compel arbitration. Practitioners handling custody, child-support, property division, or enforcement disputes must therefore attend to whether challenges are to formation (for the court) or scope (potentially for an arbitrator), and must draft and litigate accordingly.

Case Summary

Fact Summary

Abigail Cerna signed a broad “Customer Release, Assumption of Risk, Waiver of Liability, and Indemnification Agreement” (the August Agreement) when entering an Urban Air trampoline park on August 30, 2020. The agreement released claims related to Urban Air’s premises and contained an arbitration clause that expressly required arbitration of disputes concerning “the scope, arbitrability, or validity” of the arbitration agreement. About three months later the mother and child returned to the Pearland location without signing a new release; the child was allegedly injured. Cerna sued. Urban Air moved to compel arbitration; the trial court denied the motion. The court of appeals reversed, and the Supreme Court of Texas affirmed the court of appeals’ judgment, holding that the parties’ delegation clause required the arbitrator to decide whether the August Agreement covered the November visit.

Issues Decided

• Whether a previously signed release that lacks express duration language can be read to cover subsequent visits, or whether that is a question of scope for an arbitrator.
• Whether the arbitration agreement’s express delegation provision “clearly and unmistakably” committed questions of scope and arbitrability to the arbitrator, thereby requiring the court to compel arbitration.

Rules Applied

The Court applied the two-part standard for compulsion of arbitration: (1) whether a valid arbitration agreement exists, and (2) whether the claims fall within its scope. It relied on Texas and federal precedents that permit parties to delegate gateway questions—scope, arbitrability, and validity—to an arbitrator, but only where delegation is “clear and unmistakable.” Authorities referenced include Tex. Civ. Prac. & Rem. Code §171.021(b); 9 U.S.C. §4; TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC; Henry Schein, Inc. v. Archer & White Sales, Inc.; RSL Funding, LLC v. Newsome; and In re Rubiola. The Court reiterated that a court must decide existence/formation issues when those are genuinely in dispute, but that scope questions are delegable if the agreement so provides.

Application

The Court accepted that the August Agreement was a valid contract and observed that the arbitration clause expressly sent disputes regarding “the scope, arbitrability, or validity” of the arbitration agreement to arbitration. Cerna’s contention—that no arbitration agreement existed for the November visit because no new release was executed—was characterized as an argument about scope (does the August Agreement extend to later visits?) rather than formation. Because the parties had plainly delegated scope questions to the arbitrator, the Court concluded it could not decide the applicability question and therefore affirmed the court of appeals’ order compelling arbitration.

Holding

The Supreme Court held that when the parties have (1) a valid arbitration agreement and (2) an agreement that “clearly and unmistakably” delegates questions of scope and arbitrability to the arbitrator, a court must compel arbitration of disputes over whether the agreement applies to later acts or visits. Thus, the arbitrator—not the trial court—must decide whether the August Agreement governed the November visit and the ensuing injury claims.

Practical Application

For family-law practitioners, the decision underscores two tactical realities. First, drafting: include (or avoid) explicit delegation language depending on whether you want courts or arbitrators resolving scope disputes—this is particularly consequential in settlement agreements, premarital/postnuptial agreements, or parenting-plan clauses that may be relied upon over time or across repeated interactions. Second, litigation strategy: when representing a client opposing arbitration, focus on genuine formation defenses that courts will decide (fraud-in-the-inducement of the arbitration clause itself, duress, or unconscionability attacking agreement formation) and contest whether delegation language is clear and unmistakable. Conversely, when seeking to compel arbitration in family matters, ensure the clause expressly delegates scope and collect documentary proof of the agreement’s validity and the client’s assent so your motion to compel is evaluated under the two-part framework the Court reiterates.

Checklists

Gather Your Evidence
– Obtain the executed agreement(s): original or copies showing signature, date, and any exhibit identifying the signer(s).
– Collect entry/attendance records, receipts, membership logs, or digital tokens showing date(s) of visits.
– Secure corroborating evidence: photos, surveillance, witness statements, or electronic communications referencing reentry or waiver renewal.
– Preserve communications between parties about the agreement, including emails or texts suggesting ongoing applicability.

Drafting and Reviewing Arbitration Clauses
– Use explicit delegation language: state that questions of “scope, arbitrability, validity, or enforceability” are to be decided by the arbitrator.
– Specify duration and geographic scope if you intend the agreement to survive across future interactions (e.g., “this Agreement applies to all visits to any Urban Air location for a period of X years”).
– State governing law and arbitration rules; consider naming AAA or another forum and identify whether the Federal or Texas Arbitration Act applies.
– Include signature blocks for parties and, if relevant, for counsel when Texas statutes or practical enforcement concerns make that advisable.

Litigation Strategy When Opposing Arbitration
– Identify and plead formation defenses that a court must decide: lack of mutual assent, fraud in the formation of the arbitration agreement itself, duress, or statutory invalidity.
– Argue that delegation language is not “clear and unmistakable” if it is ambiguous, buried, or non-specific.
– Preserve interlocutory appeals under the Texas Arbitration Act when a motion to compel is denied or granted; consider mandamus if appropriate in federal contexts.
– If the defendant points to prior signed agreements, attack the factual predicate (no sign-in, revoked consent, or retraction) with evidentiary proof.

When Representing a Party Seeking Compulsion
– Produce the original signed agreement and any supporting documentary proof of assent promptly with your motion.
– Emphasize express delegation language and cite TotalEnergies, Henry Schein, and applicable Texas authority showing courts must defer scope questions when delegation is clear.
– Move to stay proceedings after establishing the two-part test; request arbitration rather than piecemeal adjudication.

Client Counseling
– Advise clients in family-law matters about long-run consequences of signing arbitration clauses: longevity, delegation, class waivers, confidentiality, and enforceability.
– Recommend re-execution or explicit renewal language for recurring interactions when continuity is desired.
– For clients opposed to arbitration, recommend not signing broad releases or delegation provisions and negotiating clear carve-outs for court resolution of specific family-law disputes.

Citation

Abigail Dalila Cerna, as Next Friend of R.W. v. Pearland Urban Air, LLC, No. 24-0273, Slip Op. (Tex. May 23, 2025).

Full Opinion

Full opinion — Supreme Court of Texas, May 23, 2025 (Bland, J.)