SIBLING VISITATION RIGHTS
© 1997 National Legal Research Group, Inc.
The rights of third parties, that is, persons other than a mother or father, to visit a child are continually in flux. All states have some kind of grandparent visitation statute, and at one point these visitation rights were interpreted expansively. Recent years, however, have seen a contraction of these rights. Stepparents and former cohabitants, both homosexual and heterosexual, have been increasingly asserting visitation rights as persons who have established psychological bonds with a child.
This month, we will turn to the visitation rights of those who are not parents, grandparents, or surrogate parents, but persons who have strong ties nonetheless: siblings and half-siblings. Some experts in the field of psychology have stated that aside from the parent-child relationship, the sibling relationship is the most important relationship in a child's development. Others have stated that the sibling relationship provides a context for social development, in that siblings teach one another social skills through their long-term interactions. From these social interactions the child develops a foundation for later learning, personality development, and the proper context of sex roles. As stated by one court:
A sibling relationship can be an independent emotionally supportive factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other. Those of us who have been fortunate enough to experience a sibling relationship are aware of these basic human truths.L. v. G., 203 N.J. Super. 385, 497 A.2d 215, 221 (Ch. Div. 1985). Seegenerally Stephen P. Bank & Michael D. Kahn, The Sibling Bond 9 (1982); Thomas H. Powell & Peggy A. Gallagher, Brothers and Sisters: A Special Part of Exceptional Families 14 (2d ed. 1993); Michael E. Lamb & Brian Sutton-Smith, eds., Sibling Relationships: Their Nature and Significance Across the Lifespan (1982).
Numerous factual scenarios can be posited where siblings or half-siblings are denied access to each other: (1) the siblings are placed in foster care in different homes; (2) the parents of an intact marriage can refuse to allow a minor child of the marriage to associate or visit with an adult sibling; (3) the siblings are separated by the parents' divorce decree which divides custody between the parents; and (4) the custodial parent remarries, has new children (half-siblings), and custody of the half-siblings is awarded to the new spouse. With foster care commonplace, with divided custody more prevalent, and with the rate of remarriage at 80% and thus half-sibling relationships more common, the time is ripe for the courts and practitioners to consider the importance of this relationship in pursuing visitation rights for siblings. See Joel V. Williams, Sibling Rights to Visitation: A Relationship Too Valuable to Be Denied, 27 U. Tol. L. Rev. 259 (Fall 1995); Seth A. Grob, Sibling Visitation: A Child's Right, 22 Colo. Law. 283 (1993); Barbara J. Jones, Do Siblings Possess Constitutional Rights?, 78 Cornell L. Rev. 1187 (1993); Annotation, Visitation Rights of Persons Other Than Natural Parents or Grandparents, 1 A.L.R.4th 1270, 6 (1980 & Supp. 1996). This article will not address the related issue of the presumption used by courts in custody cases to keep siblings together.
II. SIBLINGS AND HALF-SIBLINGS SEPARATED BY THE STATE: A CONSTITUTIONAL RIGHT TO SIBLING VISITATION
The United States Supreme Court has not yet declared that siblings, per se, have a constitutional right to visit one another. The United States Supreme Court has said, however, that there exists a private realm of "family life" which the state cannot enter. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The United States Supreme Court has also stated that freedom of association protects choices to enter into and maintain "certain intimate human relationships" against undue intrusion by the state because of the role that such relationships play in safeguarding the individual freedom "that is central to our constitutional scheme." Roberts v. Jaycees, 468 U.S. 609, 617-18 (1984).
Based on these pronouncements, at least one commentator has stated:
[S]iblings possess a fundamental constitutional right to maintain relationships with one another, [and] the right of siblings to associate with one another is equal to the right of parents to rear their children.Jones, supra, 78 Cornell L. Rev. at 1188. Hence, when the state separates siblings and denies them the opportunity to visit one another, it may be possible to argue that the state has deprived the siblings of a constitutionally protected right to associate with each other by way of an action under 42 U.S.C. 1983.
This was the theory in Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982). In that case, Dorothy Rivera was the adult half-sister of two minor children, Esther and Edwin Ross. Dorothy acted as the children's "surrogate mother" from the moment the children entered her home. When the minor children's mother, Betty Jean Ross, was institutionalized, the juvenile court ordered the legal custody of the children transferred to the State Welfare Department. Dorothy was allowed to serve as the children's foster parent for a short time, but the children were then removed without reason.
Dorothy commenced a civil rights action under 1983, alleging that the state had violated her due process rights under the Fourteenth Amendment to the United States Constitution. The court of appeals agreed. Citing Moore v. City of East Cleveland, 431 U.S. 494 (1977), which held unconstitutional a zoning ordinance forbidding a grandmother from living with her grandchildren who were siblings and cousins to one another, the court held that Dorothy Rivera possessed an important liberty interest in preserving the integrity and stability of her family. "The Ross children surely possess a liberty interest in maintaining, free from arbitrary state interference, the family environment they have known since birth." Rivera, 696 F.2d at 1026. The same result was reached in Aristotle P. v. Johnson, 721 F. Supp. 1002 (N.D. Ill. 1989). In that case, children who had been made wards of the court and placed in foster care brought a 1983 action against the Illinois Department of Children and Family Services, alleging a violation of their due process and associational rights. In Count I of the complaint, the children contended that the state's practice of putting siblings in separate placements and then failing to provide visitation among the siblings violated their freedom to associate under the First Amendment. In Count II of the complaint, the children contended that the state had violated their substantive due process rights. The district court held that the Fourteenth Amendment embraces the right to associate with one's relatives, and the state could infringe on a sibling's right of association only if it had a compelling interest that could not be achieved through means significantly less restrictive of associational freedoms. Id. at 1005; see alsoWilliams v. Carros, 576 F. Supp. 545 (W.D. Pa. 1983) (in dicta, judge refers to constitutional right to visits between siblings).
Two cases reached a different result regarding the inherent rights of siblings to maintain a relationship. In B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989), the court held that the state was under no obligation to reunify families separated by legitimate state intervention. Similarly, in Black v. Beame, 419 F. Supp. 599 (S.D.N.Y. 1976), aff'd, 550 F.2d 815 (2d Cir. 1977), the court held that the state has no constitutional obligation to "insure a given type of family life" and therefore to insure that siblings stay together. It is important to note, however, that in these two cases the relief requested was not merely sibling visitation; it was reunification of the family. The relief requested may have had something to do with the reluctance of the court to find a constitutional right to a sibling relationship. See also In re Elizabeth M., 232 Cal. App. 3d 553, 283 Cal. Rptr. 483 (1991) (claim that children's due process rights were violated by failure of court to order sibling visitation is cognizable).
III. SIBLINGS SEPARATED BY DIVORCE (DIVIDED CUSTODY) OR BY REMARRIAGE AND DIVORCE OF A NATURAL PARENT
The cases decided under 42 U.S.C. 1983 are inapplicable when the parents refuse to allow a minor child to associate with an adult sibling, when parents split up siblings by divided custody, or when half-siblings are separated due to the breakup of a second marriage. In these circumstances, the sibling must petition the court for sibling visitation pursuant to a statute or on the basis of a common-law right to sibling visitation.
A. Sibling Visitation Under a Statute
Eight states have enacted specific legislation that allows sibling visitation after divorce or when the siblings are separated by foster care:
(1) Ark. Code Ann. 9-13-102 (Michie 1993): The chancery courts of this state, upon petition from any person who is a brother or sister, regardless of the degree of blood relationship, or, if the person is a minor, upon petition by a parent, guardian, or next friend on behalf of the minor, may grant reasonable visitation rights to the petitioner so as to allow the petitioner the right to visit any brother or sister, regardless of the degree of blood relationship, whose parents have denied such access.
(2) Cal. Fam. Code 3102(a) (West Supp. 1997): If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interests of the minor child.
(3) 750 Ill. Comp. Stat. Ann. 5/607(b)(1) (West Supp. 1997): The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any minor child upon petition to the court by the grandparent or great-grandparent on behalf of his or herself or on behalf of the sibling, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and the court may issue any necessary orders to enforce such visitation privileges.
(4) La. Rev. Stat. Ann. 9:344(C) (West Supp. 1997): If one of the parties to a marriage dies, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.
(5) Md. Code. Ann., Fam. Law 5-525.2(a) (Supp. 1996): Any siblings who are separated due to a foster care or adoptive placement may petition a court, including a juvenile court with jurisdiction over one or more of the siblings, for reasonable sibling visitation rights.
(6) Nev. Rev. Stat. 125A.330(1) (1993): Except as otherwise provided in subsection (2), if a parent of an unmarried minor child is deceased or divorced or separated from the parent who has custody of the child, or his parental rights have been relinquished or terminated, the district court in the county in which the child resides may grant to the grandparents, parents and other children or either parent of the child a reasonable right to visit the child during his minority, if the court finds it would be in the best interests of the child.
(7) N.J. Stat. Ann. 9:2-7.1(a) (West Supp. 1997): A grandparent or any sibling of a child residing in this state may make application before the superior court for an order for visitation.
(8) N.Y. Dom. Rel. Law 71 (McKinney Supp. 1997): Where circumstances show that conditions exist in which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf, whether by half or whole blood, may apply to the supreme court by commencing a special proceeding for visitation rights for such brother or sister in respect to such child.
Other states have statutes that, while not specifying siblings, allow "interested parties" with a "significant relationship" or a "person biologically related" to petition for visitation. Siblings may be considered within this classification. (Excluded from this list are statutes that provide visitation for persons with a significant relationship akin to a parent-child relationship.)
(1) Alaska Stat. 25.24.150(a) (Michie 1996): In an action for divorce or for legal separation or for placement of a child when both parents have died, the court may make, modify, or vacate an order for the custody of or visitation with the minor child that may seem necessary or proper, including an order that provides for visitation by a grandparent or other person if that is in the best interests of the child.
(2) Conn. Gen. Stat. Ann. 46b-59 (West 1995): The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person.
(3) Haw. Rev. Stat. 571-46(7) (1997): Reasonable visitation rights shall be awarded to parents, grandparents, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that such rights of visitation are detrimental to the best interests of the child.
(4) Me. Rev. Stat. Ann. tit. 19, 214(6) (West Supp. 1996): The court may award reasonable rights of contact with a minor child to any third persons.
(5) Mich. Comp. Laws Ann. 722.27; Mich. Stat. Ann. 25.312(7) (1992): If a child custody dispute has been submitted to the court, the court may provide for reasonable visitation of the child by the parties involved, the maternal or paternal grandparents, or by others, by general or specific terms and conditions.
(6) Ohio Rev. Code Ann. 3109.051(B)(1) (Anderson 1996): In a divorce, dissolution of marriage, legal separation, annulment, or child support proceeding that involves a child, the court may grant reasonable companionship or visitation rights to any grandparent, any person related to the child by consanguinity or affinity, or any other person other than a parent.
(7) Va. Code Ann. 20-107.2 (Michie Supp. 1996): Upon entry of a decree (for divorce or separate maintenance or a decree denying divorce), the court may make such further decree as it shall deem expedient concerning the custody or visitation and support of the minor children of the parties as provided in 20-124.1. See also Va. Code Ann. 16.1-241(A) (Michie 1996) (court has jurisdiction to determine visitation).
(8) Wash. Rev. Code Ann. 26.09.240 (West 1997): A person other than a parent may petition the court for visitation with a child at any time. The court may order visitation between the petitioner or intervenor and the child between whom a significant relationship exists upon a finding supported by the evidence that the visitation is in the child's best interests.
Under these statutes, the petitioner must have standing to petition for sibling visitation rights. E.g., In re Nachelle S., 41 Cal. App. 4th 1557, 49 Cal. Rptr. 2d 200 (1996) (mother lacked standing to raise issue of visitation on behalf of her children after her parental rights were terminated); Jeanette H. v. Angelo V., 148 Misc. 2d 721, 562 N.Y.S.2d 368 (Fam. Ct. 1990) (woman who surrendered her son for adoption by her parents lacked standing to seek visitation with her son postadoption on the basis of woman being child's biological mother; woman's son became her brother on adoption, however, and thus she had standing to seek sibling visitation); State ex rel. Noonan v. Noonan, 145 Misc. 2d 638, 547 N.Y.S.2d 525 (Sup. Ct. 1989) (under New York statute, mother, on behalf of her children, had standing to request visitation with children's half-siblings; mother did not have standing to bring proceeding on behalf of her other child from a previous marriage who was not half-sibling of children with whom mother was requesting visitation); Thrift v. Baldwin, 23 Va. App. 18, 473 S.E.2d 715 (1996) (sister had standing to petition for visitation after adoption of sibling).
The petitioner must also show that visitation is in the best interests of the subject child. Just because the statute grants the sibling the standing to petition for visitation does not mean that visitation is a foregone conclusion and necessarily in the best interests of the child. Courts will carefully scrutinize the sibling relationship to determine if visitation is in the best interests of the child.
For example, in In re Justin H., 215 A.D.2d 180, 626 N.Y.S.2d 479 (1995), the family court denied the petition of half-siblings for visitation on the findings that the subject children had established no real familial bonds with their half-siblings, and that the foster family was the only family the children had known. The family court further found that forced visitation would serve little purpose. Based on these findings, the appellate court affirmed.
Similarly, in Hatch on Behalf of Angela J. v. Cortland County Department of Social Services, 199 A.D.2d 765, 605 N.Y.S.2d 428 (1993), a child sought postadoption visitation with her siblings, who had been adopted. The family court found that Angela was 19 months old when her siblings had been adopted and thus had never established an affectionate sibling relationship. Consequently, sibling visitation served no useful purpose and was denied.
On the other hand, in In re Adoption of Anthony, 113 Misc. 2d 26, 448 N.Y.S.2d 377 (Fam. Ct. 1982), the family court found that a 12-year-old adoptive child knew the facts surrounding his adoption, he had visited and maintained a relationship with his siblings through his years in foster care, and the adoptive parents and biological siblings were all acquainted. Sibling visitation in these circumstances, the court held, would promote the adoptive child's best interests. Accord In re Patricia A.W., 89 Misc. 2d 368, 392 N.Y.S.2d 180 (Fam. Ct. 1977).
B. Sibling Visitation Without a Sibling Visitation Statute
Because parents have the right to direct the upbringing of their children, Santosky v. Kramer, 455 U.S. 745 (1982), courts have generally held that in the absence of a statute a sibling or half-sibling does not the right to visit the sibling over the objections of the parents. A few cases, however, disagree.
The leading case to establish a fundamental right of sibling visitation is L. v. G., 203 N.J. Super. 385, 497 A.2d 215 (Ch. Div. 1985). In that case, a father and mother had six children. The mother died, and the father remarried. As the four oldest of the children reached majority, they moved out of the home and began living together. The four oldest children then requested visitation with the two remaining minor siblings. The maternal grandmother joined, requesting grandparent visitation with the two minor children as well. The parties agreed to visitation in the minor children's home, and a stipulation was entered to that effect. The older siblings then requested off-premises visitation due to animosity with the stepmother.
The court began its discussion by holding that even in the absence of a specific sibling visitation statute the adult siblings had standing to request visitation:
What right could be more basic, more precious than that of sharing life experiences with one's own brother or sister? Surely, nothing can equal or replace either the emotional and biological bonds which exist between siblings, or the memories or trials and tribulations endured together, brotherly or sisterly quarrels and reconciliations, and the sharing of secrets, fears, and dreams. To be able to establish and nurture such a relationship is, without question, a natural, inalienable right which is bestowed upon one merely by virtue of birth into the same family.497 A.2d at 218. Thus, the court had inherent equitable jurisdiction to grant sibling visitation rights, even in the absence of a statute. The court then concluded that it was in the best interests of the minor children that visitation be granted. Cf. Pullman v. Pullman, 234 N.J. Super. 383, 560 A.2d 1276 (Ch. Div. 1988) (distinguishing L. v. G., court held that husband's son by prior marriage was not entitled to visitation rights with three half-siblings, where Legislature had, since L. v. G., defined sibling visitation rights and present situation did not fall within that realm); see also Bernick v. Bernick, 31 Colo. App. 485, 505 P.2d 14, 15 (1972) (when considering whether to allow mother to relocate, court opined that "visitation is primarily the right of the children").
In general, however, case law addressing siblings' rights to visitation have taken the position that one commentator called, "No statute, no standing, no right to visitation." Joel V. Williams, Sibling Rights to Visitation: A Relationship Too Valuable to Be Denied, 27 U. Tol. L. Rev. 259, 287 (Fall 1995).
The most recent example of a court denying a sibling the right to petition for visitation rights is Ken R. on Behalf of C.R. v. Arthur Z., 546 Pa. 49, 682 A.2d 1267 (1996). In that case, Ken and Mary Jane were divorced in 1981. They had one daughter, C.R., and Mary Jane was awarded custody. Mary Jane remarried and had two children with her new husband. Twelve years later, C.R. went to live with her father, Ken, and he requested visitation on behalf of C.R. with her two half-siblings, over the objections of Mary Jane and her husband. (C.R. had gone to live with Ken because she had accused Mary Jane's new husband, her stepfather, of sexually molesting her. Mary Jane and her new husband encouraged C.R. to leave their home and live with her father instead.)
The Pennsylvania Supreme Court affirmed the dismissal of C.R.'s petition, holding that the legislature had not given siblings the statutory authority to interfere with the parents' decision not to allow sibling visitation, and there is no right to interfere in the absence of statutory authority. Accord Weber v. Weber, 362 Pa. Super. 262, 524 A.2d 498 (1987), appeal dismissed, 517 Pa. 458, 538 A.2d 494 (1988); cf. MacDonald v. Quaglia, 442 Pa. Super. 149, 658 A.2d 1343 (1995) (court granted cousins, who were in sibling-like relationship, visitation rights; court noted that the dispute was not between a sibling and parents, but between two third parties, and thus interference with a parent's right to raise a child, as in Weber and Ken R., was not implicated).
Similarly, in the recent case of In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996), a 13-year-old boy (the "juvenile") was placed in the custody of the Nebraska Department of Social Services as a child in need of services by order of the juvenile court. The juvenile court also ordered the juvenile's parents to allow visitation between the juvenile and his three-year-old sister. The parents appealed, and the Nebraska Supreme Court reversed. The supreme court held that the juvenile court had no direct statutory authority over the three-year-old sister. While the juvenile court had authority to fashion orders in the best interests of the 13-year-old boy, it could not order the juvenile's parents to make his sister available for visitation without having jurisdiction over her as well, as such an order would interfere with the parents' constitutionally protected right to raise their daughter as they saw fit.
The Iowa Supreme Court reached the same result in Lihs v. Lihs, 504 N.W.2d 890 (Iowa 1993). In that case, Gene and Monica Lihs had one child during their marriage, Jason. Gene and Monica were divorced, and custody of Jason was awarded to Monica. Gene then married Kimberly, and they had two children, Alexandria and Chase. When Jason visited with Gene, Jason spent much time with Alexandria and Chase and regarded them as his siblings. Gene died, and Kimberly requested sibling visitation on behalf of Alexandria and Chase with Jason, over the objection of Monica. The Iowa Supreme Court held that a custodial parent has a common-law veto power over visitation between a child and all other third parties, except the noncustodial parent. Any exception must come from the legislature. Since the legislature had named only grandparents as persons entitled to assert visitation rights, Kimberly had no standing to request visitation for Alexandria and Chase. Cf. In re Wemark, 525 N.W.2d 7 (Iowa Ct. App. 1994) (where after mother's death and father's incarceration minor children were placed in custody of guardians, court had power to order visitation with children's adult sibling because guardians were subject to jurisdiction of court concerning children).
The same result was reached in Sandor v. Sandor, 444 So. 2d 1029 (Fla. Dist. Ct. App. 1984). In that case, Roger and Lori were divorced, and Lori was granted custody of the parties' minor children. Roger subsequently remarried and had another child with his second wife, Cynthia. When Roger disappeared, Cynthia brought a petition on behalf of her daughter for visitation with her daughter's two half-siblings. The trial court granted the petition, finding that all three children had at one time lived together with their father. The Florida District Court of Appeal held that the trial court had no authority to order such visitation; the only time a trial court may order visitation with a nonparent is under the grandparent visitation statute. Accord Secola v. Phillips, 652 So. 2d 1259 (Fla. Dist. Ct. App. 1995) (trial court order refusing to order visitation between dependent child and half-siblings was affirmed, as trial court had no authority to order such visitation).
The dissent in Sandor points out that the majority misstated the posture of the case. Cynthia was not asserting visitation rights for her children; rather, Cynthia sought an order for continued visitation that had already been granted to Roger. It should make no difference that Roger is out of the picture, and Cynthia should be able to enforce visitation on her children's behalf. Although the dissent does not point this out, when the case is presented in this posture, it is much more analogous to L. v. G., where the siblings were seeking to enforce visitation rights they had already been granted. The case for sibling visitation is therefore much stronger in Sandor than appears at first blush.
Many courts have held that it is in the best interests of the children to keep siblings together, and have awarded custody on this basis. E.g., In re Marriage of Fynaardt, 545 N.W.2d 890 (Iowa Ct. App. 1996); In re Marriage of Spurgeon, 119 Or. App. 59, 849 P.2d 1132 (1993). See generally 1 Jeff Atkinson, Modern Child Custody Practice 4.17 (Supp. 1996); Linda D. Elrod, Child Custody Practice and Procedure 4:33 (1996). The policy is equally true for half-siblings who have formed a close bond. E.g., Morrow v. Morrow, 585 So. 2d 61 (Ala. Civ. App. 1991); In re Marriage of Orte, 389 N.W.2d 373 (Iowa 1986); Tedesco v. Tedesco, 111 Md. App. 648, 683 A.2d 1133 (1996); Jorschumb v. Jorschumb, 390 N.W.2d 806 (Minn. Ct. App. 1986); Hockenberry v. Thompson, 428 Pa. Super. 403, 631 A.2d 204 (1993); Mitzel v. Black Cloud-Walberg, 511 N.W.2d 816 (S.D. 1994). Indeed, the desire to keep siblings and half-siblings together can form the basis of awarding custody to a stepparent. E.g., Fenimore v. Smith, 145 Or. App. 501, 930 P.2d 892 (1996).
If courts are willing to award custody to a nonparent on the basis that half-siblings are entitled to maintain a relationship, then courts should be willing to allow sibling visitation.
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