Splitting the Baby

child-custody-tug-of-warThere is a fascinating story about twin brothers born in 1940’s Ohio who were separately put up for adoption at birth. Unbeknownst to the other, they lived only 40 miles apart from each other for most of their lives. Even more interesting, they ended up living eerily similar lives, for example:

  • Both boys were independently named James by their adopted parents;
  • Both had childhood dogs named Toy;
  • Both were great at math and bad at spelling;
  • Both worked as sheriffs; (here is where it gets interesting)
  • Both married women named Linda. Both divorced their Lindas and remarried women named Betty;
  • Both had sons who they named James Alan, and James Allan.

While the above case is interesting, and perhaps given the time period when the two boys were put up for adoption (1940’s Ohio) not surprising, it is unlikely nowadays that twins would be knowingly separated at birth or adopted by different parents.

Though not common, there are situations where one parent asks the court to split up siblings in child custody proceedings. There is a very strong public policy in California that the sibling bond should be preserved whenever possible, so in order for the court to entertain such a request, there has to be a compelling reason to do so. The best way to describe what “compelling reasons” are is to give you some examples.

In Marriage of Heath, the Court of Appeal overturned a trial court order allowing two siblings to be separated because one of the siblings had autism and there was a concern about “modeling behavior” by the non-autistic sibling.

In another case where the Court of Appeal overturned an order separating the siblings, the Court of Appeal stated, “Children are not community property to be divided equally for the benefit of their parents.” In that case, Marriage of Williams, the trial court ordered that two children were to move with Mother to Utah and the other two children were to stay with Father in California. The reasoning was that both parents were good parents and that both should have an equal opportunity to share in the lives of their children to the extent possible. The Court of Appeal understood why the trial court made the order splitting the siblings, but in light of the very strong interest in maintaining the sibling bond, could not sanction such an order.

The next example is a case where the court allowed siblings to be separated. In Marriage of Steiner & Hosseini the Court of Appeal upheld and order separating the siblings based on the trial court finding the Mother had ‘poisoned’ the relationship between Father and his elder son, and that giving Father custody of the younger son was perhaps the only way to prevent that kind of alienation from occurring with the younger son.

It is important to note, that the compelling interest to maintain the sibling bond does not attach to that of step-siblings. In J.M. v. G.H. the Court of Appeal held they will not equate the relationship of a step-sibling with that between a child and his biological sibling because requiring compelling circumstances to separate step-siblings would affect all cases in which the subject of a custody dispute has a blended family.

The issue of whether siblings should be separated is very fact specific and will require the assistance of an experienced child custody litigator. There are so many variables at issue that it can be difficult to know where to start.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS) is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.

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