Residential Custody and the Separation of Siblings

We continue our exploration of custody matters today with a brief discussion of residential custody and the separation of siblings.  As a general rule, courts are reluctant to separate siblings and will not do so unless there is an “overwhelming need” to do so.

The New York Court of Appeals repeatedly has recognized the importance of sibling relationships.  According to the Court of Appeals “Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.”

The Court of Appeals later elaborated on this, holding that “the separation of siblings…is to be frowned upon” and that “Close familial relationships are much to be encouraged” because “By building identity, countering feelings of isolation, and encouraging healthy adjustments to and with others, they provide an important additional dimension to long-term stability.”

This rule has evolved and recent cases have held that, given the dynamics of modern family life, this rule is not absolute and need not be applied where the proof indicates that the best interest of each child lies with a different parent.  Still, the party proposing the separation of siblings has the burden of proving that the best interest of each child is with a different parent.

This is quite a heavy burden since courts still frown upon splitting siblings and siblings will be kept together unless this is an “overwhelming need to do otherwise.”  So strong is this policy of keeping siblings together that a court can reunite siblings even if their parents originally split them by agreement.

I am yet to see a case where there was an “overwhelming need” to separate siblings.  I have seen cases where the children have taken different sides and the parents have encouraged such.  This has resulted in a sibling conflict where there should not be one.  This does not create a situation where there is an “overwhelming need” to separate siblings.  This is a situation where there is an “overwhelming need” to heal the sibling relationship and remove the children from the adults’ conflict.

 

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