Legal Commentary

Sibling Visitation

By Eugene Volokh

May a state give siblings ? usually adult siblings ? a right to visitation with a child, over the parents? objection? The issue is discussed in In re D.C. & D.C., decided yesterday by the New Jersey Supreme Court. That case involved prospective adoptive parents (currently foster parents, but an adoption request is pending), but as the court pointed out the same issue could arise as to biological parents. The court?s analysis is quite long, but here?s a sample:

[S]iblings can petition for visitation with their brothers and sisters who have been adopted by nonrelatives, subject to the avoidance of harm standard [and not just the less demanding ?best interests of the child? standard ?EV]. We can envision, for example, a case in which pre-teen siblings, raised together in the same household, deeply entwined in each other?s lives, are removed due to abuse or neglect. If one is adopted by a non-relative and the other taken in by his grandmother, it seems likely to us that denial of the sibling?s application to visit his adopted brother would satisfy the harm threshold. To the contrary, it is less clear that siblings separated at birth and raised in different households with no interaction whatsoever would be able to vault the threshold.

Obviously, the analysis is a fact-intensive one in which the sibling ?bear[s] the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child.?

UPDATE: Just to make clear, the court is saying that visitation may only be ordered when there?s a finding that denying visitation would cause ?a substantial likelihood? of ?serious physical or psychological harm? to the child. A finding that visitation would be in the child?s best interests ? i.e., that the child would be better off if visitation were allowed compared to if visitation were denied ? does not suffice to justify the interference with the parents? rights.

Full post as published by The Volokh Conspiracy on September 30, 2010 (boomark / email).