Can the South Carolina Family Court Award Sibling Visitation?
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, 3rd Edition, 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 there have been no appellate decisions interpreting it
There are at least three 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).