The Law Should Do Much More to Protect Sibling Relationships When Families Fall Apart

The law, lawyers, and the court.
July 8 2014 2:52 PM

Brotherly (and Sisterly) Love

The law should do much more to protect sibling relationships when families fall apart.

Siblings.
The tie between siblings is often the longest lasting relationship that a person ever experiences

Photo illustration by James Emmerman. Images courtesy of Shutterstock.

Wunika Hicks and her brother David lived together in their mother’s home and in foster care until she was 13 and he was 6. Then David was adopted away, and Wunika was sent to a new foster family.

Three years later, Wunika wrote that that she thought of her brother “every day—so much that it hurts. It hurts the most when his birthday passes. He’s getting older without me.” Wunika had asked to visit her brother, but social workers told her that David’s adoptive parents had never responded to her request. Wunika had not seen David since his adoption, and did not know where he lived. She did not even know his new first and last names.

Wunika and David are like many other brothers and sisters whose families rupture. Too often, the law permits sibling relationships to be severed by an adoption or a parent’s divorce or death. Sometimes, siblings are left with no way to stay in touch with each other. When siblings placed in different households have had the chance to write or speak publicly about their experiences, they have emphasized the pain, sadness, and complete shock that separation can inflict.

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The tie between siblings is often the longest lasting relationship that a person ever experiences. Social science research makes clear that strong bonds between brothers and sisters can develop very early in childhood. Many children spend more time with their siblings than with anyone else, and siblings who grow up together accumulate a store of shared memories that can shape each sibling for life. Children with absent, dysfunctional, or warring parents often forge especially intense bonds with each other that provide solace, nurturing, and secure emotional attachments.

But as I discuss in my new book, Family Law Reimagined, the legal system has long acted as if marriage and parenthood are the only two family relationships that matter. In recent years, the law has expanded its focus slightly by directing more attention toward unmarried couples. Yet courts and legislatures still do remarkably little to protect sibling ties.

Divorce courts in every state sometimes split custody of siblings between parents. Some states have no presumption at all against split custody. Other states disfavor split custody, but still allow it. Similarly, some state court decisions rigorously oppose splitting siblings at divorce, while other decisions loosely interpret even supposedly strict presumptions against separation.

When siblings are adopted out of their biological family by different parents, many states treat the sibling relationship as completely terminated. Some states have laws discussing visitation or communication between siblings separated by adoption, but these states usually impose no requirements on adoptive parents and confer no rights on siblings.

Other attempts to protect sibling relationships are modest and sporadic. Federal law conditions some funding on a state’s agreement to make “reasonable efforts” to place siblings in the same adoptive home and to promote post-adoption contact when siblings are separated. But the law does not indicate what “reasonable efforts” means or identify any steps that states must take.

Legislatures and courts should focus more attention on family ties other than marriage, parenthood, and their equivalents. My book explores potential reforms in the interest of sparking dialogue and debate.

Family Law Reimagined.

For example, states could provide greater guidance to adoption agencies about how to make “reasonable efforts” to keep siblings together. Requiring reasonable efforts from adoption agencies is appealing because this standard seems designed to encourage joint placement, while avoiding too much delay for adoptions or excessive costs for agencies. But without a definition that gives it teeth, “reasonable efforts” may mean little in practice. Adoption agencies need a push to improve their practices.

One reform that would not impose additional expense or delay would be to specify that adoption agencies cannot exclude a fit prospective adoptive parent interested in adopting a sibling group just because he or she is unmarried, gay, or already has other children. States might also require adoption agencies to conduct out-of-state searches for potential adoptive parents, if that’s what it takes to find a shared adoptive placement for siblings. This strategy would impose some costs on agencies and possibly delay some adoptions, but it would have the considerable advantage of reaching a much larger pool of potential adoptive parents.

In addition, states could erect more barriers to split custody at divorce. For instance, states could require a parent seeking to split siblings to present a court with clear and convincing evidence that placing the children together would be contrary to the best interests of at least one child.

States could also give siblings who are separated by adoption or divorce an enforceable right to communicate with and visit each other, even over a parent’s objection, unless a court determines that such contact would go against the best interests of one or more of the children. The Supreme Court’s precedents would require state courts to give “material weight” to a parent’s judgment about her child’s interests. Sibling rights are worth a modest intrusion on parental rights, given how important sibling relationships can be to growing up and flourishing. Most of the time, it is vital for siblings separated by adoption or divorce not to lose each other.

Jill Elaine Hasday is Distinguished McKnight University Professor and Centennial Professor of Law at the University of Minnesota. She is the author of Family Law Reimagined.

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