One of the more recent additions to the South Carolina jurisdictional code regarding children and family court, § 63-3-530, is subsection 44, which allows the family court “to order sibling visitation where the court finds it is in the best interest of the children.” The sentiments behind this code subsection, the judicial protection of sibling bonds, is lovely. In South Carolina there is a justified aversion to separating siblings. As Roy T. Stuckey’s Marital Litigation in South Carolina notes:
Split custody is only awarded where there are compelling circumstances, such as a high level of conflict/hostility between children or the inability of one parent to care for all the children. A forced separation from their siblings can have a traumatic impact on children whose lives are already disrupted by the divorce experience.
Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114 (2004) is one of the few reported South Carolina cases in which split custody of full siblings (as opposed to half siblings) was approved the court. Patel approved split custody because while the oldest son wanted to finish high school in California with father, the daughter had a strong desire to live with her mother and both parties agreed that the two youngest children should not be separated.
Yet since subsection 44 was added to the jurisdictional code (approximately a decade ago) there have been no appellate decisions interpreting it and I am aware of no South Carolina case in which the issue of sibling visitation was litigated. I am told that some family law attorneys do not even understand that sibling visitation can be ordered. I have often contemplated the situations in which one could seek application of this subsection to obtain court ordered sibling visitation and have determined three: 1) an adult sibling seeks visitation with a minor sibling; 2) a half-sibling seeks visitation with a minor half-sibling who in the custody of the parent that they do not share; 3) at least one of the siblings is in custody of a third party, such as foster care. In the first two situations, the importance of maintaining sibling bonds could justify the family court overriding the right of parents to maintain control over their minor children (in the third situation the action for sibling visitation would not intrude on the rights of the minor child’s parents).
The justification for court intrusion into the parent-child relationship to justify sibling visitation was well expressed in L. v. G., 203 N.J. Super. 385, 497 A.2d 215, 221 (Ch. Div. 1985):
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.
Ironically the court in L. v. G, while finding sibling visitation could be ordered despite the absence of New Jersey statutory authority, did not order sibling visitation.
Obviously if an adult child is dangerous to a sibling, parents should be able to keep an adult sibling away from that sibling’s younger siblings. But what if parents simply disagree with the adult child’s lifestyle and want to keep siblings separated on that basis? Perhaps the adult child is a homosexual, or has converted to a different religion, or is a Democrat or a lawyer, and the parents don’t want this “rubbing off” on the younger siblings: should the court allow parents to create a long-term breech in sibling relationships for these reasons? I don’t intend to answer that question in this blog but merely pose it to show that it’s not a question with a clearly obvious answer but is a question that could, due to subsection 44, conceivably be posed to a South Carolina family court.
Further consider the situation in which siblings share a father but not a mother and one of the sibling’s fathers has no contact with his children (perhaps he is deceased, incarcerated, unfit, or away on military assignment). Does this mean that the siblings should never be able to develop a relationship with each other, or suffer a breach in their relationship, especially if one mother doesn’t like the other mother? Again, I don’t intend to answer that question in this blog but merely pose it to show that it’s not a question with a clearly obvious answer but is a question that could conceivably be posed to a family court.
Because siblings have closer kinship to each other than grandparents do to their grandchildren, the justification for court-ordered sibling visitation seems stronger than that for grandparents. Yet grandparent visitation seems a much more frequent issue in litigation than sibling visitation. This could because people who have minor-aged siblings tend to be younger than people who have grandchildren and thus they might have less financial wherewithal to litigate visitation than might grandparents. It could be that parents are less willing to keep siblings away from other siblings than they are to keep grandparents away from grandchildren. It could simply be that siblings are unaware of their right to seek court-ordered visitation. However, before I retire, I’d love to help develop South Carolina case law on sibling visitation.