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Splitting the babies: Should the court ever separate siblings

Most people can remember some incident in their childhood when conflict arose between children and an adult exclaimed. "Don’t make me separate you" The surprising and illogical reaction to this threat is always the children taking steps to abate the ongoing conflict. Once there is a threat that the adult intervention is going to consist of separating the children from one another. the problems that gave rise to the conflict usually evaporate. almost miraculously.
Even on this small scale, the importance of maintaining the continuity of the child sub-culture is evident. Without knowing or understanding why, children act on their inherent, instinctive drive to protect and preserve their social subgroup.

A child’s ability to move effetively through and within his social group. is a precursor, a dress rehearsal. that helps him obtain the skills and ability to function as an individual in adult society. His ability to function in the child society. is largely learned and experienced for the first lime in sibling relationships. Siblings learn from one another how to resoh’e differences and develop durable relationships.

The healthy sibling relationship is one that is life long. Sibling relationships last longer than the parent-child relationship, and longer than husband-wife relationships. Many elderly people continue to find comfort, acceptance and belonging in relationships with brothers and sisters when parents and spouses have predeceased them, It is difficult to overestimate the significance of this relationship. In the United States today, given the increase in readily available technology to do so, there are more people searching for lost siblings, than for biological parents.

A child’s identity is partly a result of having a past that is continuous. Separation and divorce is a significant disruption in a child’s continuum. Brothers and sisters can play a crucial role in helping each other survive these disruptions in family life,

It is no wonder then, in the confusion and aftermath of divorce or other traumatic events that give use to court intervention into the family. the bond between siblings can become the sustaining emotional force for children. The question then is where and when do we reach the point that maintenance and preservation of these significant and important sibling relationships are not in the best interests of the children.

The appellate courts in California have recognized the importance of the sibling bond and have articulated a principle which many family law practitioners and bench officers have known and followed for years prior to these rulings. The court held, in In Re Marriage of Williams (2001)88 Cal 4th 808. and more recently in In Re Marriage of Heath (2005) 122 CA 4th 444 , that absent compelling circumstances. siblings should not be separated.

In Re Marriage of Williams, was a move-away case. Prior to Mothers request to move-away, the parents equally shared physical custody of their four children, ranging in age from 10 to 3 years. The court found that the children were well cared for by, and well bonded with each parent, and that both parents sought the ability to serve as the primary physical custodian. The trial court ordered custody of two children to each parent, the oldest, a daughter and youngest, a son, to be primarily with Mother at her new residence in Utah, and the two middle children, a son and daughter respectively, were to remain in Santa Barbara with Father. The appellate court boldly stated that "Had the family court allowed all of the children to either reside in Santa Barbara or move to Utah, we could easily affirm on the deferential standard of appellate review." The court went on to call the order of the trial court “...so unusual and onerous to all concerned that is cannot he considered a routine exercise of judicial discretion. It has quite literally ‘split the babies’, requiring two siblings to remain in Santa Barbara with Father while ordering that the other two move to Utah with Mother. The record is silent on the adverse effect the order will necessarily have from the point of view of the children. They too have rights which must be considered.

Like the Heath case which came later, in Williams there was no psychological evaluation or expert testimony. There was no testimony from the parents or anyone regarding the relationships among the children, no school or medical records, and no input from the children. The record did support the conclusions of the trial court that either parent would be an appropriate custodial parent. The appellate court indicates that it appreciates the dilemma faced by trial courts that have competent parents before it with competing requests and stated that "In its zeal to reward good parents, the family court may have punished good children.” The court also eloquently pointed out that children are not community property to be divided equally for the benefit of their parents. Underscoring the paramount concerns for the best interests of the children to be served in custody orders, this court emphasized the rights of the children to the society and companionship of their siblings.

Heath is however, not a typical, garden variety custody modification case. First, the children were differently abled, which was in large part the basis for the requested modification. The oldest child was autistic, and at the time of trial, it was believed that the younger child was not. Second, even given that the request was based upon the very special needs and complex diagnosis of one child, no expert testimony of any kind was presented at trial.

The argument made by Father in favor of separating the children, which was accepted by the court, was that the younger child (age three) was "mimicking" the older child’s (age five) autistic behavior, and it was assumed and accepted that this younger child was not autistic. Without the assistance of expert testimony, the court acted on its "hunch" that the child was doing just that, modeling the autistic behavior of the older child, and therefore awarded custody of the youngest child to father.

The Heath appellate court discussed In Re Marriage of Carney (1979) 24 Cal.3d 725, which held that a parent's disability could not be the basis for a change of custody. The Heath court stated “...it is the policy of this state that the existence of a disability does not permit a court to presume detriment” and “Just as in cases where the bond between parent and child cannot be severed merely because the patent has a disability, so too the bond between siblings should not be severed without a careful analysis of the actual impact of separation on both children.” In Re Marriaize of Heath (2005) 122 CA 4th 444

There was also one attorney appointed to represent both children at the trial level. Although the appellate court says it does not reach that issue, it goes on to rule that on remand, because an actual conflict exists based upon the separation order, separate counsel must be appointed for each child, citing In Re Celine R. (2003) 31 Cal 4th 45, 58; and Caroll v. Superior Court (2002) 101 Cal. App.4th 1423, 1430-1431.

In each of these cases, the higher court was given the opportunity to announce this general rule because the trial court had taken the rare and extraordinary step of ordering physical custody of each of the children to different parents. To every rule there is an exception, but the problem is that since the higher courts found that these trial courts had erred in application of the general rule, we do not receive any enlightenment as to what the exceptions, permitting an order separating siblings will be. There is guidance from other jurisdictions, where the general principle is consistent with that as announced by the California courts, which is that of keeping siblings together with a few necessaiy exceptions.

A situation arises, where children of “sufficient age and maturity”, consistent with Family Code section 3042, express a desire to reside with one parent or another and what to do if that desire differs from the custody order related to siblings is a recurring problem. In May 2004, this issue was addressed by a Kansas court, in another case also called In Re Marriage of Williams (2004) No. 91301. In that case, the court analyzed a Kansas statute that gave the trial court no discretion to divide the custody of children of the same parents unless substantial competent evidence supports a finding that the case presents “exceptional circumstances”, K.S. A. 2003 Supp. 60- 1610 (a)(5)(B). That Kansas court was faced with essentially the same balancing that would be faced by a California court. The desire of the child must be balanced against the goal of continuity and stability, the importance of sibling bonds, and the best interests of the children. In that case, the 10 year old son of the parents, expressed a desire to reside with Father. There was evidence that boy’s relationship with his sister was strained, and that the Mother, whom previously had primary physical custody of both children, favored the daughter over the son. The trial court was upheld in its finding that this situation presented an “exceptional circumstance” under the Kansas statute and that “divided custody” was in the boys best interests. This is a likely scenario that would similarly pose a “compelling circumstance’ in a California court.

A Wyoming court was similarly upheld when granting custody of one 11 year old boy, the youngest of three boys, to his father. The higher court in that case articulated the “general rule across the country is that separating siblings from each other through custody awards to different parents is not preferred”, citing cases from Alaska, Utah and Oregon. The court went on to state that sibling bonds are but one factor in the ultimate determination of the best interests of the child. In that case. Dowdy v. Dowdy (1993) 1993 WY 139, 864 P.2d 439, the court also stated that in addition to sibling bonds and the desires of the child, the antagonism between siblings is another factor. In this case, the evidence was that Father was a fit parent, the child desired to be with him, the child’s performance and behavior in school improved during a temporary period of custody with father, and the parents lived about 100 yards apart. facilitating frequent contact with the other siblings.

In spite of the clear best interests of children which is served by maintaining and preserving sibling bonds, when placement of children in the context of juvenile court proceedings, the realities of placing children of a family together present serious logistical constraints. Often placement families are not able or willing to receive more than one child, and often the behavior and safety issues of the children preclude them from being placed together. However, there are treatises and expert opinions arising from the social services and juvenile court forum which could be helpful and persuasive in family law matters as we strive to set priorities and guidelines for what will constitute compelling circumstances and how to weigh these against other competing factors. In the book "A Child’s Journey Through Placement", Vera Fahlberg advised social workers to consider a number of factors before separating siblings. First, determine the strengths of the ties beteen siblings. Second is whether one of the children has assumed a parental role, and if so is that effect on the sibling group positive or negative. Third, consider the nature and degree of sibling rivalry, some is normal, but in the extreme can be disruptive or harmful. Fourth, the desires of the children should be considered.

There are few advocates of separating siblings. Most experts agree that the bond between siblings is important, but there are always dissenters. A researcher in Australia advocates "split residence" parenting arrangements, and states that the opposition to split residence parenting is based upon a “romanticized notion of sibling relationships”. The article "Spilt— Residence: An Opportunity for Co-operative Parenting", (Bruce Hawthorne, Family Court of Australia) does acknowledge that the wealth of research and expert opinions are against separating siblings, but indicates in the small number of families in his particular study it was working well, These were families that had for the most part reached these parenting anangements by stipulation. There was additionally comment on the financial constraints being more evenly distributed in these split residence arrangements as opposed to one parent bearing the bulk of the parenting responsibility while the other parent bore the bulk of the financial responsibility. There was also discussion of the principles of scarcity, in that emotional and financial resources, although scarce after divorce or separation of the parents, were more evenly distributed and available to the children by virtue of the fact that the children, and their respective needs, were equitably divided between the homes.

The current state of the law pertaining to separating siblings in family law matters is that it should not be done "absent compelling circumstances". When parents agree to a split residetice custody arrangement, or when one child of sufficient age and maturity to express a preference for a particular residential arrangement, different from other siblings, there appears to be viable exceptions to the general rule even though not yet specifically articulated by our higher courts. What other specific “compelling circumstances” will warrant a judicial determination for separation of siblings is certainly going to be case specific. Expert testimony, input from intelligent mature children, and evidence regarding sibling bonds will be necessary to pass appellate muster for such an order in any contested custody matter.



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