July 14, 2006
The media have given considerable attention recently to the science of siblings. The July 9th Time magazine cover story examines how siblings shape our identity and ABC's Good Morning America this week had a segment on the personality of single children and the increasing percentage of families with only one child. So its seems a good time for Family Law Prof to turn its attention to recent developments in the issue of splitting siblings in custody decisions.
Many courts have strong statements disfavoring splitting siblings but in practice find a number of circumstances in which they uphold split custody. The Missouri Court of Appeals recent enunciation of the stronger “exceptional circumstances” standard reflects the court’s ambivalence regarding the strength of this preference:
Absent exceptional or unusual circumstances, Missouri courts do not support the separation of siblings or split custody. However, it is also well established that the trial court has the authority to order such a custody arrangement if it is in the best interests of the children. There is no absolute set of rules to follow when awarding child custody; each case must be examined in light of its own set of unique facts.
In re Marriage of Barton, 158 S.W.3d 879 (Mo. App. March 31, 2005)(opinion on web)bgf
When is Split Custody in a Child's Best Interest?
The preference for keeping children together requires in most courts that there at least be an evidentiary hearing and express findings that the arrangement is in the best interests of the children. Sanders v. Sanders, 2005 La. App. LEXIS 2081 (September 23, 2005) (See Blog posting)
Thus, in a case in which the trial court granted Father custody of his 3-year-old son, leaving custody of the 5-year-old with Mother, the trial court accepted Father’s assertion that the 3-year-old was “mimicking” the 5-year-old’s autistic behaviors and that this was not good for the 3 year old. The California Court of Appeals reversed, holding that mere allegations of best interests are insufficient to justify splitting custody. "Just as in cases where the bond between parent and child cannot be severed merely because the parent 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 Marriage of Heath, 122 CA 4th 444 (2005)(opinion on web)
An older child’s strong preference can constitute exceptional circumstances, especially if there is not a close sibling bond to begin with. The Supreme Court of North Dakota, for example, upheld a relocation by mother than resulted in split custody because her oldest son had already moved in with dad permanently and did not have a close relationship with his much younger siblings, whom she sought to relocate. Schmidt v. Bakke, 2005 ND 9, 291 N.W.2d 235 (January 19, 2005)(opinion on web)
The Michigan court provides a cautionary tale on parental agreement to split custody however. In Ellis v. Evers, 2006 Mich. App. LEXIS 791 (March 21, 2006)(opinion), Mother was originally granted custody of the two children. Father moved to change custody and Mother agreed that the younger son could move to Father, but successfully disputed the appropriateness of the change in custody of daughter. Later, Father again moved to modify custody, this time based on the changed circumstances of the children having been separated. The court of appeals concluded that this was a sufficient basis for a motion to modify. “The separation of siblings is generally a more significant event "than the normal life changes (both good and bad) that occur during the life of a child." The separation of the siblings could have a very significant effect on their future relationship and accordingly their future well-being.” (The case nonetheless was remanded due to other court errors)
Modifying Joint Custody in Light of Alienation
Split custody decisions are often sought as a modification of a joint custody arrangement that isn’t working out. Often these cases raise allegations of parental alienation. With one parent having alienated a child against the other parent, so that the child (often a teenager) simply won’t live with the other parent, the court is reluctant to then grant the alienating parent custody of all the children on the basis of avoiding splitting siblings. These cases almost look as though the court is saying trying to “even out” the alienation (in fact, in M.W.W. v. B.W., 900 So. 2d 1230 (Ala. App. Sept. 10, 2004), that is precisely the phrase the attorney uses in questioning a younger daughter regarding her custodial preferences in a case in which the older daughter was thoroughly alienated from father, against whom mother had made unfounded allegation of sexual abuse).
In an Iowa case involving two parents who each were doing their best to alienate the children from the other, the court granted Mother primary custody of both children due to the older daughter’s “adamant preference to be placed in the former wife's physical care, and the strong bond between the children that would be weakened if their physical care was divided between the parents.” In re Marriage of Donovan, 2006 Iowa App. LEXIS 298 (March 29, 2006)(opinion) bgf
Do courts split custody of half and step siblings more readily?
Another issue that often arises in these cases is whether the policy of keeping siblings together applies as strongly with step or half siblings
Some courts treat all siblings equally in terms of the interest of keeping siblings together. Willenbring v. Roepcke, 2006 Iowa App. LEXIS 233 (March 15, 2006)(opinion) (“Siblings, whether full or half-siblings, should be separated only for compelling reasons.”) ; Aragon v. Aragon, 104 P.3d 756 (Wyo. January 19, 2005)(opinion)(we find the strong public policy toward preservation of sibling relationships to be equally applicable whether the children are full sibling, half sibling, or stepsiblings.) Other courts conclude that “The prohibition against separating siblings in the absence of exceptional circumstances does not apply with equal force in cases where the children are half-siblings” Evans v. Evans, 2005 Ark. App. LEXIS 442 (June 8, 2005)(opinion)
As a practical matter, of course, each parent may have formed a new family and separating the child from one set of siblings will be a necessary consequence of any custody decision. See, e.g., In re Rohlfsen, 2006 Iowa App. LEXIS 472 (May 24, 2006)(blog posting on this case)
As the Pennsylvania court commented:
The policy in Pennsylvania is to permit siblings to be raised together, whenever possible (the doctrine of family unity or the whole family doctrine). Absent compelling reasons to separate siblings, they should be reared in the same household to permit the continuity and stability necessary for a young child's development. This policy does not distinguish between half-siblings and siblings who share both biological parents. However, the Pennsylvania Superior Court has made clear that the policy against separation of siblings is only one factor--and not a controlling factor--in the ultimate custody decision. In the majority of cases in which this doctrine has been invoked, the children have been reared together prior to separation or divorce of the parents. In cases where the siblings have not been reared in the same household, the force of the doctrine is less compelling. A divorced parent who has another child by a subsequent relationship should not thereby be favored in a custody decision regarding any older children, based on the whole family doctrine. Such an application of the doctrine would imply an unacceptable policy: that a parent who subsequently has additional children with a different partner is automatically favored in a custody dispute. Johns v. Cioci, 2004 PA Super 492 2004 PA Super 492; 865 A.2d 931; (December 30, 2004)
The Alaska Supreme Court in a similar vein concluded that a parent’s remarriage and new children not be changed circumstances justifying custody modification but a child’s bonding with those new siblings may be. Robertson v. Phillips, 2006 Alas. LEXIS 32 (March 1, 2006)(See blog posting) bgf
July 13, 2006
Does Teen Have the Right to Refuse Chemotherapy?
"A teen cancer patient fighting to use alternative medical treatment for his illness said he told a juvenile court judge in a two-day, closed-door hearing what it's like to go through chemotherapy and that he didn't want to relive it."I told him my story ... so he could understand where I was coming from and live through me," 16-year-old Starchild Abraham Cherrix said. In all, the judge heard 11 hours of testimony before the hearing concluded late Tuesday. At issue is if the teen can make his own medical decisions and whether he can keep living with his parents and four siblings on Chincoteague, an island off Virginia's Eastern Shore." By Dena Potter, AP, FindLaw, Link to Article (last visited 7-12-06 NVS)
Man Sues DontDateHimGirl.com
"Liars and cheaters beware. Victims of love used to gather the shards of a broken heart, cry on a friend's shoulder and quietly file the episode away as a character-building experience. Today, scorned lovers post anonymous diatribes on dating-advice Web sites. They name names, divulge graphic details of disappointing sexual encounters, and warn future potential victims about the charming cads who wade in the shallow end of the dating pool. But one alleged cheater says his reputation has been so harmed by the posts on a site called DontDateHimGirl.com that he's suing the owner — and he's hired a private investigator to dig up dirt on her and her site's anonymous posters." By Lisa Sweetingham, Court TV News Link to Article (last visited 7-12-06 NVS)
Marriage Vows in Space
"Japanese spouses can have their vows of love launched into outer space and stored there from next year -- as long as they buy platinum wedding rings.The project is part of a campaign to promote platinum wedding rings by the Japanese arm of Platinum Guild International, the body which promotes jewelry made of the precious metal."People do not link platinum with wedding rings the way they used to," an official with PGI's Tokyo office said." Reuters, Yahoo News, Link to Article (last visited 7-12-06 NVS)
Rise in Single Mothers in Early 20s
"America made teen pregnancy prevention a national priority, and progress on this front is remarkable. However, increasingly, women are avoiding pregnancy as teens, only to become single mothers in their early 20s. Often their entry into parenthood is just as ill-prepared and perilous to child well-being, yet the policy response is far less adequate." By Kelleen Kaye, Yahoo News Link to Article (last visited 7-12-06 NVS)
Proposed Massachusetts Constitutional Amendment
"Massachusetts lawmakers ended debate on proposed constitutional amendments Wednesday before dealing with the most volatile issue on their agenda: a proposal to outlaw gay marriage in the only state where it is legal. The move to recess until Nov. 9 put off the decision on the politically charged issue until after the general election. Senate President Robert Travaglini had said he intended to bring all 20 proposed amendments to a vote, but had warned lawmakers might not be able to get to every proposed amendment on Wednesday.The goal of the gay marriage amendment, which supporters hope to put on the 2008 ballot, would be to block future gay marriages in Massachusetts. More than 8,000 same-sex couples have taken vows since gay marriages began in May 2004." AP, cbs4boston.com Link to Article (last visited 7-12-06 NVS)
July 11, 2006
"Albert Einstein had half a dozen girlfriends and told his wife they showered him with "unwanted" affection, according to letters released on Monday that shed light on his extra-marital affairs.The wild-haired Jewish-German scientist, renowned for his theory of relativity, spent little time at home. He lectured in Europe and in the United States, where he died in 1955 at age 76. But Einstein wrote hundreds of letters to his family.Previous-released letters suggested his marriage in 1903 to his first wife Mileva Maric, mother of his two sons, was miserable. They divorced in 1919 and he soon married his cousin, Elsa. He cheated on her with his secretary, Betty Neumann. In the new volume of letters released on Monday by Hebrew University in Jerusalem, Einstein described about six women with whom he spent time with and received gifts from while being married to Elsa." By Corinne Heller, Reuters, Yahoo.com Link to Article (last visited 7-10-06 NVS)
"Thousands of infertile men might benefit from a world first in which scientists artificially created sperm in a test tube. The scientist in charge of the project said it was possible some forms of male infertility could be treatable within five years. In some infertile men, all the right apparatus exists to make sperm but they do not do so, suggesting an "environmental" rather than genetic problem." By Ian Johnston, News.scotsman.com Link to Article (last visited 7-10-06 NVS)
"In many societies, the term "child bride" calls to mind impetuous sweethearts, a ladder cautiously positioned beneath a bedroom window, a silent kiss in the moonlight and a young couple making an anxious getaway to a justice of the peace. But this is not a ready image the world over. In Afghanistan, a child bride is very often just that: a child, even a preteen, her innocence betrothed to someone older, even much, much older. Rather than a willing union between a man and woman, marriage is frequently a transaction among families, and the younger the bride, the higher the price she may fetch. Girls are valuable workers in a land where survival is scratched from the grudging soil of a half-acre parcel. In her parents' home, a girl can till fields, tend livestock and cook meals. In her husband's home, she is more useful yet. She can have sex and bear children.
Afghanistan is not alone in this predilection toward early wedlock. Globally, the number of child brides is hard to tabulate; they live mostly in places where births, deaths and the human milestones in between go unrecorded. But there are estimates. About 1 in 7 girls in the developing world (excluding China) gets married before her 15th birthday, according to analyses done by the Population Council, an international research group." By Barry Bearak, New York Times Magazine Link to Article (last visited 7-10-06 NVS)
Concerned Mother or Kidnapper?
"To her defenders, Tina Carlsen was a concerned mother exploring natural alternatives to surgery for her 9-month-old infant. To the state, she was a kidnapper who prompted an Amber Alert and an order restricting contact with her toddler until after her trial.Carlsen was charged with second-degree domestic-violence kidnapping last month after she slipped baby Riley out of a hospital in a diaper bag to avoid surgery ordered by his doctors and a judge. The case has put her at the center of a battle testing the rights of parents and the roles of doctors and judges in disputes over children's medical treatment." CNN.com Link to Article (last visited 7-10-06 NVS)
Marital Split Linked to House Explosion
"The graceful town house on East 62nd Street was more than a home to Nicholas Bartha. It was the culmination of his life’s work, proof that he had realized the classic immigrant’s dream. Dr. Bartha, burned and barely conscious, was pulled from the ruins yesterday morning after the house was nearly leveled by a gas explosion, raining bricks on one of the city’s wealthiest streets and sending up thick columns of black smoke. Even before the fires were extinguished, police began focusing on Dr. Bartha as the most likely person to have caused the blast. Just as his historic town house, a landmark used more than half a century ago by American spies, was no ordinary building, Dr. Bartha, 66, was embroiled in a marital split that by all accounts was no ordinary divorce. But he would have done anything to keep that house, including stay married, his lawyer said." By Cara Buckley, NY Times Link to Article (last visited 7-11-06 NVS)
"In a bizarre twist to a hotly disputed divorce in New York State, a doctor blew up his building in Manhattan -- a building that had been appraised at over $5 million. Sounds like "War of the Roses" ! The appellate decision would force him to sell the real estate. His explosion -- which he survived -- was apparently his way of saying, "If I can't have it, then neither can you."" By Jeanne Hannah, Link to Blog with Court Decision (last visited 7-11-06)
July 10, 2006
Same Sex Marriage Bans Upheld in Two States - Many Other Decisions Pending
Two state courts waited until we took a break from blogging to issue decisions upholding their state same-sex marriage bans.
In a 4-2 decision, the New York Court of Appeals found that the state's century-old definition of marriage as a union between a man and a woman could have a rational basis, and that it was up to the State Legislature, not the courts, to decide whether it should be changed.
Hernandez v. Robles, 2006 N.Y. LEXIS 1836; 2006 NY Slip Op 5239 (July 6, 2006) Opinion on the web
The Georgia Supreme Court as well, in a unanimous reversal of a lower court decision, ruled that the state's 2004 ban against same-sex marriage was constitutional.
Perdue v. O'Kelley, 2006 Ga. LEXIS 465 (July 6, 2006) Opinion on the web
For a selection of debates and commentary on the decisions, see Andrew Sullivan's Time blog posting in which he comments: "I think the New York Court of Appeals decision will help, rather than hurt, the cause of marriage equality in the long run. Why? Because it will force the issue into legislatures, where it is best tackled, and where we will eventually win." Stanley Kurtz writing in the National Review about New York State Assemblywoman Barbara Lifton's proposal to eliminate marriage as a legal status in favor of “civil commitments” for all. Among law professor bloggers, Professor Ann Althouse's blog has a lively debate on the New York decision; Professor Dale Carpenter posts a series of analyses of the opinion in the Volokh Conspiracy blog and Professor Arthur S. Leonard criticizes the Georgia Supreme Court decision for it's thin reasoning in his blog.
In other states: the California Court of Appeals has scheduled hearings for its review of the law banning same-sex marriage. (Here is the lower court's opinion. See today's San Francisco Chronicle article on the case) Opinions are due from the courts of New Jersey (which heard arguments in February 2006) and Washington (arguments were in March 2005 - here is the lower court opinion). Suits are also pending in Connecticut, Iowa, Maryland, Nebraska, New Jersey, Oklahoma, and Washington. (See the LAMBDA Marriage Project site for briefs and lower court opinions from many of these cases).
For the status of same-sex marriage legislation and court challenges in the various states, see the summary provided by the Pew Research Center.
As we plan for our fall semester family law courses, my question is, with the wealth of resources available on this topic and the pace of challenge and change in the law, how are you teaching this issue?"
2006 KidsCount Data Book - Children's Well-Being Worsening
The Annie E. Casey Foundation's 2006 KidsCount Data Book is now online. The Data Book reports that national trends in child well-being are no longer improving in the steady way they did in the late 1990s. Three out of 10 child well-being indicators have worsened since 2000. More than 13 million children were living in poverty in 2004--an increase of 1 million over four years.