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COMMENT
SIBLING VISITATION AS A FUNDAMENTAL
RIGHT IN HERBST V. SWAN
INTRODUCTION
Imagine that you are a six-year-old child. Your father has died and
now your only remaining biological link to your paternal heritage is
through your adult half-sister. Your mother, however, does not want your
half-sister to have visitation with you, although there is a statute in your
state providing for such visitation upon the death of a parent. Your halfsister takes the case to court, and the judge concludes that she has no right
to visitation, effectively holding that you have no right to see your sister
because your mother’s rights are more important than your own. This is
precisely the effect of the holding in the 2002 California case of Herbst v.
Swan.1
Sibling2 visitation is a topic not often examined, but one that presents
unique challenges to the realm of family law. These challenges arise in
many different contexts.3 When a parent dies, a half-sibling may seek
visitation with a minor child.4 When siblings are adopted into different
homes, or otherwise separated due to custody or social services issues,
sibling visitation becomes important.5 Problems arise in this area when
1.
2.
3.
4.
5.
125 Cal. Rptr. 2d 836, 841 (Ct. App. 2 Dist. 2002).
For the purposes of this Comment, the term “sibling” means a person who is “related
to another person by blood, adoption, or affinity through a common legal or
biological parent.” CAL. WELF. & INST. CODE § 362.1(c) (West 2004).
See generally National Legal Research Group, Inc., Sibling Visitation Rights (1997),
at
http://www.divorcesource.com/research/dl/visitation/97may85.shtml
(listing
numerous factual scenarios in which siblings may be denied access to each other)
(last visited Feb. 1, 2005).
See, e.g., Herbst, 125 Cal. Rptr. 2d at 838.
See Margaret Ward, Sibling Ties in Foster Care and Adoption Planning, 63 CHILD
WELFARE 321, 329-30 (1984). “If separation is necessary, workers must ensure that
contact is continued whenever possible.” Id. at 330. Maintaining “openness” between
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parents or caretakers of one child do not wish for that child to have contact
with his or her siblings.6
The issue then arises: whose rights supersede—those of the parents or
those of the sibling? In Troxel v. Granville,7 the United States Supreme
Court, in a plurality opinion, held that a parent’s right to raise her child as
she sees fit necessarily excludes the possibility, under a Washington
statute, of mandated grandparent visitation against the parent’s wishes.8
The California Court of Appeals for the Second Appellate District applied
that decision in Herbst to the context of sibling visitation.9 The Herbst
decision declared a California third-party visitation statute unconstitutional
as it relates to siblings.10
This Comment argues that Herbst was incorrectly decided, on the
grounds that the Supreme Court’s opinion in Troxel was not intended to be
applied to the sibling context and that siblings possess a fundamental
constitutional right to maintain relationships with each other, which should
not be automatically trumped by parental authority. Part I looks at the
significance of the sibling bond at issue in the California visitation statute
and explains the background of the Herbst case. Part II discusses the
authority relied upon in Herbst, and focuses on the lack of comparability
between that authority and the facts of Herbst. Part III analyzes sibling
rights from a constitutional perspective, and examines the Supreme Court’s
recognition of the rights of children and family, and how this provides a
basis for determining that siblings do have a constitutionally protected
interest in maintaining relationships with each other. Part IV reviews the
best interests standard and its applicability to sibling visitation cases,
looking particularly at California’s use of that standard and how the sibling
bond is regarded in related areas of California law. This Comment
concludes that siblings do have a fundamental right to maintain contact
with each other through visitation, even in the face of parental objection,
which should have been recognized in Herbst.
6.
7.
8.
9.
10.
separated siblings “can help to promote the child’s ability to trust, feel optimistic
about life, and establish positive relationships.” Deborah N. Silverstein & Sharon
Kaplan Roszia, Openness: A Critical Component of Special Needs Adoption, 78
CHILD WELFARE 637, 640 (1999).
See Joel V. Williams, Sibling Rights to Visitation: A Relationship Too Valuable to be
Denied, 27 U. TOL. L. REV. 259, 262-63 (1995).
530 U.S. 57 (2000).
Id. at 67.
Herbst, 125 Cal. Rptr. 2d at 838-39.
Id. at 841.
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I. BACKGROUND
A. The Significance of the Sibling Bond
Only five percent of all adults have never had a sibling.11 Sibling
relationships are among the most important in life.12 It has been observed
that “[t]he relationships people share with siblings are often the longestlasting they will ever have. Siblings are there from the beginning, and they
are often still around after parents, and even spouses and children, are
gone.”13 So why are these relationships not readily recognized by courts as
being so fundamentally important?
When third-party non-parental interests were being developed, there
was no organized voice to represent the rights of siblings.14 The results are
twofold. First, once legislatures began recognizing a need for sibling
visitation statutes, their solution was merely “to amend existing statutes to
include siblings among all other third parties having an interest in children
rather than determining de novo the nature of sibling rights.”15 Second,
courts and legislatures have tended to conclude, without consideration of
evidence to the contrary, that siblings’ rights are not as important as parentchild rights.16
Sibling relationships are, according to psychologists, “attachment
relationship[s].”17 Attachment research may help educate judges and
legislators who do not realize the significance of sibling relationships.18
The term “attachment” can be defined as “an enduring affectional bond of
substantial intensity.”19 The primary purpose of attachment is “providing
safety and protection for the young, the old, and others who are less
11.
12.
13.
14.
15.
16.
17.
18.
19.
Diane Crispell, The Sibling Syndrome, 18 AM. DEMOGRAPHICS, Aug. 1996, at 24, 26.
Id. at 24.
Id.
William Wesley Patton & Sara Latz, Severing Hansel from Gretel: An Analysis of
Siblings’ Association Rights, 48 U. MIAMI L. REV. 745, 750 (1994).
Id. at 751.
Id.
Kirsten L. Buist et al., Developmental Patterns in Adolescent Attachment to Mother,
Father and Sibling, 31 J. YOUTH & ADOLESCENCE, June 2002, at 167, 169.
See Patton & Latz, supra note 14, at 763. See generally VERA I. FAHLBERG, A CHILD’S
JOURNEY THROUGH PLACEMENT (British Agencies for Adopting & Fostering 1994)
(1991). “[I]t is essential that those who participate in making major decisions about
the lives of children and families have a basic understanding of attachment theory.”
Id. at 13.
Buist et al., supra note 17, at 167. See generally FAHLBERG, supra note 18, at 13-58
(discussing attachment and bonding).
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capable of meeting their own needs….”20 Research on attachment
originally focused primarily on the parent-child bond, but newer studies
have led to an understanding of the importance of alternative relationships
to a person’s development, including sibling relationships.21 In fact, at least
one commentator has suggested that the sibling relationship may be as
important as the parent-child relationship.22
Siblings serve several important functions, including developmental
opportunities to learn about cooperation and individuality, and ultimately
providing a natural support network for each other.23 In “disorganized
families,” the role that siblings play for each other is crucial.24 Extrinsic
factors have a complex effect on the sibling relationship.25 When parents
separate or divorce, for example, “the number of parenting figures may
[change] while many children receive significantly less parenting. Through
this process, nonparental relationships, including sibling relationships,
become more important.”26 Thus, the sibling bonds that are already so
important often become even more significant among children who have
experienced stressful home situations.27 Sibling separation under these
circumstances is often much more traumatizing than would be the case for
other types of family situations.28
It has been suggested by at least one commentator that terminating the
sibling relationship should be given the same consideration that is given to
20.
21.
22.
23.
24.
25.
26.
27.
28.
FAHLBERG, supra note 18, at 13. For human beings, “needs” extend beyond physical
necessities and include the interpersonal connections that “aid us in our own quest for
identity.” Id.
Buist et al., supra note 17, at 167, 169.
Troy D. Farmer, Protecting the Rights of Hard to Place Children in Adoptions, 72
IND. L.J. 1165, 1174 (1997).
Elizabeth M. Timberlake & Elwood R. Hamlin, II, The Sibling Group: A Neglected
Dimension of Placement, 61 CHILD WELFARE 545, 547-48 (1982).
Rebecca L. Hegar, Sibling Relationships and Separations: Implications for Child
Placement, 62 SOC. SERV. REV. 446, 455 (Sept. 1988).
Patton & Latz, supra note 14, at 766.
Id. Presumably, the death of a parent, as was the situation in Herbst, would have a
comparable effect. See Hegar, supra note 24, at 455. “[I]ntense sibling loyalties tend
to exist where ‘the parents had been weak, absent, hostile, or had actually died during
the siblings’ formative years.’” Id.
GLORIA HOCHMAN ET AL., NAT’L ADOPTION INFO. CLEARINGHOUSE, THE SIBLING
BOND: ITS IMPORTANCE IN FOSTER CARE AND ADOPTIVE PLACEMENT 3 (1992),
available at http://naic.acf.hhs.gov/pubs/f_siblin.pdf. “[S]tudies that focus on poor,
single-parent, or abusing families support the idea that when parents are absent or
seriously stressed, sibling relationships gain importance.” Hegar, supra note 24, at
454.
Hegar, supra note 24, at 454-55.
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the termination of a parent-child relationship.29 It is clear that the sibling
relationship offers many benefits.30 These benefits, however, “are
meaningless unless siblings are allowed to establish and maintain their
relationship.”31
B. Herbst v. Swan
1.
Relevant Statutes
The statute at issue in Herbst is California Family Code section
3102.32 This statute is very specific regarding who is allowed to pursue
visitation and also states the specific circumstances under which the
identified parties may seek visitation.33 According to section 3102, “[i]f
either parent of an unemancipated minor child is deceased, the children,
siblings, parents, and grandparents of the deceased parent may be granted
reasonable visitation with the child during the child’s minority upon a
finding that the visitation would be in the best interest of the minor child.”34
Unlike the statute at issue in Troxel v. Granville, concerns about
overbreadth35 are unnecessary regarding the California statute, which sets
forth three elements to be met before visitation will be granted.36 First,
section 3102 of the California Family Code allows third parties to seek
visitation only when the minor child’s parent is deceased.37 At that time,
only the children, siblings, parents, and grandparents of the deceased38
would be able to seek visitation.39 Once these first two elements have been
met, visitation would be granted only if it is in the best interest of the
child.40 As a further safeguard, the statute specifically states that if the party
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
FAHLBERG, supra note 18, at 262.
See, e.g., Timberlake & Hamlin, supra note 23, at 547-48.
Williams, supra note 6, at 262.
CAL. FAM. CODE § 3102 (West 2004).
See id. § 3102(a)-(b).
Id. § 3102(a) (emphasis added).
See Troxel v. Granville, 530 U.S. 57, 67 (2000). The Washington statute at issue in
Troxel permitted any third party to seek visitation at any time. WASH. REV. CODE
ANN. § 26.10.160(3) (West 2004). As Justice O’Connor observed in Troxel, “[t]he
Washington nonparental visitation statute is breathtakingly broad.” Troxel, 530 U.S.
at 67; see also infra Part II.A (discussing Troxel).
CAL. FAM. CODE § 3102(a)-(b).
Id. § 3102(a).
These individuals would be the siblings, aunts, uncles, grandparents, and greatgrandparents of the minor child.
CAL. FAM. CODE § 3102(a).
Id.
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pursuing visitation is someone other than the child’s grandparent, the court
must examine the amount of contact that party had with the child prior to
the death of the child’s parent.41
2.
Facts and Holding
Jeana Herbst, an adult, and Jake Herbst, a minor child, have the same
father, Ralph Herbst, but different mothers.42 Jake’s mother, Charlene
Swan, was never married to Ralph Herbst.43 After Ralph Herbst’s death in
1999, a dispute arose between Jeana and Charlene regarding the
administration of Ralph Herbst’s estate.44 This dispute resulted in an
estrangement between Jeana and Charlene, “and by extension, the
siblings.”45 The result was that Charlene would not allow Jeana to see
Jake.46
Jeana filed a Petition for Visitation, pursuant to California Family
Code section 3102, seeking visitation with her brother, Jake.47 The court
ordered mediation48 in the hope that Jeana and Charlene would be able to
reach an out-of-court compromise, but this process was unsuccessful.49
Charlene was opposed to any form of visitation between Jeana and Jake.50
After the unsuccessful mediation, Jeana filed an Order to Show
Cause, seeking temporary reasonable visitation with Jake.51 Charlene
opposed the action, claiming it would interfere with her interest in having
control over the upbringing of her minor son.52 Specifically, Charlene
argued that the California visitation statute, Family Code Section 3102,
violated the Fourteenth Amendment of the United States Constitution.53
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
Id. § 3102(b).
Herbst v. Swan, 125 Cal. Rptr. 2d 836, 837 (Ct. App. 2 Dist. 2002).
Appellant’s Opening Brief at 2, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2
Dist. 2002) (No. B152450).
Id.
Id.
Herbst, 125 Cal. Rptr. 2d at 837.
Id.
Appellant’s Opening Brief at 3, Herbst, (No. B152450). “J[eana] appeared for
mediation. C[harlene] did not personally appear, but made herself available to the
mediator via telephone.” Id.
Id.
Id.
Id. Jeana was seeking visitation that would be convenient to both Jake’s and
Charlene’s schedules and would “not interfere with their routines in any way.”
Herbst, 125 Cal. Rptr. 2d at 837.
Respondent’s Brief at 12-13, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2 Dist.
2002) (No. B152450).
Id. at 2.
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The trial court dismissed Jeana’s petition, holding that section 3102
was unconstitutional on its face as it relates to siblings because it takes into
consideration only the interests of the child, with no regard for the
surviving parent.54 Jeana appealed the trial court’s order dismissing her
Petition for Visitation.55 The California Court of Appeal for the Second
Appellate District, relying heavily on the Supreme Court’s decision in
Troxel,56 as well as several past California decisions,57 concluded that
section 3102 of the California Family Code is unconstitutional as it relates
to siblings.58
II. THE HERBST COURT’S RATIONALE AND RELIED UPON AUTHORITY
In denying sibling visitation, the Herbst court relied upon authority
that was not well-suited for application to the facts of that case. The Herbst
court relied primarily on three cases: Troxel,59 Kyle O. v. Donald R.,60 and
Punsly v. Ho.61 These three cases each involved grandparent visitation,
which is fundamentally different from sibling visitation. Sibling
relationships possess inherent psychological significance and should be
afforded a higher degree of protection by the courts.62 Also, none of the
children at the center of the controversies in the cited cases were in danger
of being completely cut off from the party seeking visitation.63 The same
cannot be said for Jake Herbst.64 This factual difference is the key to
understanding why none of the cited cases are applicable to Herbst.
A. Misplaced Reliance on Troxel v. Granville
In affirming the trial court’s decision, the Herbst court relied heavily
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
Herbst, 125 Cal. Rptr. 2d at 837.
Id.
Id. at 838-40; see also infra Part II.A.
Herbst, 125 Cal. Rptr. 2d at 839-41; see also infra Part II.B.
Herbst, 125 Cal. Rptr. 2d at 841.
530 U.S. 57 (2000).
102 Cal. Rptr. 2d 476 (Ct. App. 3 Dist. 2000).
105 Cal. Rptr. 2d 139 (Ct. App. 4 Dist. 2001).
See supra Part I.A (discussing the psychological significance of the sibling bond).
See infra Part II.A-B (discussing the facts of these cases).
See E-mail from Attorney Laurie Armstong, attorney representing Jeana Herbst,
Armstrong & Armstrong, to Angela Ferraris, author, New England Law Review (Feb.
17, 2004, 12:31:04 EST) (on file with author) (confirming that Charlene Swan was
not willing to offer Jeana Herbst any visitation with Jake); see also Appellant’s
Opening Brief at 3, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2 Dist. 2002)
(No. B152450).
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on Troxel v. Granville.65 In that case, the Troxels sought visitation rights to
their granddaughters, Isabelle and Natalie, after the tragic death of Brad
Troxel, the girls’ father and the Troxels’ son.66 The Troxels had been
seeing the girls on a regular basis after Brad Troxel’s death, but the girls’
mother informed the Troxels several months later that she was going to
limit their visits to once per month.67 Pursuant to a Washington visitation
rights statute,68 the Troxels petitioned for mandated visitation with their
grandchildren.69 The trial court granted this petition.70 The case was
appealed through the state court system,71 and the United States Supreme
Court granted certiorari.72 In a plurality opinion,73 the Supreme Court found
that under the circumstances of that case, the Washington statute
unconstitutionally infringed on the fundamental right of parents “to make
decisions concerning the care, custody, and control of their children.”74 The
parental right to make decisions of child-rearing was thus held superior to
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
Herbst v. Swan, 125 Cal. Rptr. 2d 836, 838-40 (Ct. App. 2 Dist. 2002).
Troxel v. Granville, 530 U.S. 57, 60 (2000). The visitation statute at issue in Troxel
allowed any third party to seek visitation at any time. WASH. REV. CODE §
26.10.160(3) (1997) (found unconstitutional by Troxel, 530 U.S. 57).
Troxel, 530 U.S. at 60-61.
WASH. REV. CODE § 26.10.160(3).
Troxel, 530 U.S. at 61.
Id.; In re Visitation of Troxel, 940 P.2d 698, 699 (Wash. Ct. App. 1997). The trial
court entered an order for visitation one weekend each month, one full week during
the summer months, and four hours on each of the grandparents’ birthdays. Troxel,
530 U.S. at 61; Visitation of Troxel, 940 P.2d at 699. It is important to note that the
girls’ mother did not oppose visitation, but only asked that the court limit such
visitation to one day per month with no overnight stays. Troxel, 530 U.S. at 61.
The Washington Court of Appeals reversed the trial court’s order on the ground that
the Troxels lacked standing. In re Visitation of Troxel, 940 P.2d at 701. On appeal,
the Washington Supreme Court, combining the Troxels’ case with two other thirdparty visitation cases arising under the same statute, found that the plain language of
the statute at issue gave the Troxels standing, but affirmed the appeals court decision
on the grounds that the statute unconstitutionally infringed on the surviving parent’s
right to rear her children as she saw fit. In re Custody of Smith, 969 P.2d 21, 27, 3031 (Wash. 1998).
Troxel v. Granville, 969 P.2d 21 (Wash. 1998), cert. granted, 527 U.S. 1069 (Sept.
28, 1999) (No. 99-138).
The Court was split, with Justice O’Connor writing the plurality opinion to which
Chief Justice Rehnquist, Justice Ginsburg, and Justice Breyer joined. Troxel, 530 U.S.
at 60. Justice Souter and Justice Thomas wrote separately, concurring in the
judgment. Id. at 75, 80. Justice Stevens, Justice Kennedy, and Justice Scalia each filed
separate dissenting opinions. Id. at 80, 91, 93.
Id. at 66; see id. at 78-79 (Souter, J., concurring); see also id. at 80 (Thomas, J.,
concurring).
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grandparent visitation rights.75
The California appellate court applied the Troxel holding to the facts
of Herbst, apparently concluding that the two cases were sufficiently
similar.76 In reality, these two cases are inherently different. By applying
Troxel to Herbst, the court expanded the Supreme Court’s holding in
Troxel to find that a parent’s fundamental right to raise her child as she sees
fit is paramount to all types of non-parent visitation.77 This rationale,
however, is an incorrect interpretation of the Court’s decision.
Central to the Troxel decision was the language of the Washington
visitation statute, which provided that “any person may petition the court
for visitation rights at any time.”78 The Court’s primary concern in
addressing the constitutionality of this statute was its “breathtakingly
broad” approach to granting visitation.79 The Washington statute did not
take into consideration the third party’s relationship to the child involved;
the terms of that statute would potentially have allowed even complete
strangers to petition for visitation.80 Also, the granting of visitation is
hinged only upon a judicial determination that doing so would be in the
child’s best interest and no deference is given to the parent’s decision.81
The California statute at issue in Herbst, on the contrary, is notably
narrow in its language regarding who is eligible to seek visitation.82 Also,
by providing that eligible persons may seek visitation only upon the death
of the child’s parent, the statute has defined the timing for qualified
visitation requests.83 Another difference between the California statute and
the Washington statute is that the Washington statute provided for parties
to seek “visitation,”84 while the California statute specifies that qualified
parties may seek “reasonable visitation.”85 This difference incorporates the
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
See id. at 75.
See Herbst v. Swan, 125 Cal. Rptr. 2d 836, 838-40 (Ct. App. 2 Dist. 2002).
See id. at 841.
WASH. REV. CODE § 26.10.160(3) (1997) (found unconstitutional by Troxel, 530 U.S.
57).
Troxel, 530 U.S. at 67.
See id. “[The statute] allow[s] any person, at any time, to petition for visitation
without regard to relationship to the child….” Id. (quoting In re Visitation of Smith,
969 P.2d 21, 30 (1998)) (alterations in original).
See id. But see infra Part IV (describing why the best interests standard is appropriate
for this context).
See CAL. FAM. CODE § 3102(a) (West 2004); see also supra Part I.B.1.
See CAL. FAM. CODE § 3102(a); see also supra Part I.B.1.
WASH. REV. CODE § 26.10.160(3) (1997) (found unconstitutional by Troxel, 530 U.S.
57).
CAL. FAM. CODE § 3102(a) (emphasis added); see also Appellant’s Opening Brief at
9-10, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2 Dist. 2002) (No. B152450).
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required deference to the parent’s opinions regarding the requested
visitation.86 The only truly comparable aspect between the California and
Washington statutes is that both required a showing that visitation would be
in the child’s best interests.87
Another central concept in Troxel is that “there is no allegation that
Granville ever sought to cut off visitation entirely … Granville did not
oppose visitation but instead asked that the duration of any visitation order
be shorter than that requested by the Troxels.”88 Granville’s own attorney
freely declared in open court that visitation with the grandparents would be
in the children’s best interests; only the amount of time was at issue.89 In
Herbst, however, Charlene Swan was opposed to any visitation between
her son and his sister.90 Although the California appellate court found that
this situation was comparable to Troxel, a careful reading of the latter
indicates that the Supreme Court might support mandated visitation if the
child would be otherwise completely cut off from the eligible third party
who is seeking visitation.91
Justice O’Connor finds significant the fact that many states’ thirdparty visitation statutes provide that courts may only award visitation when
a parent has denied visitation to the petitioning party.92 This observation
indicates approval for the concept of allowing visitation under such
circumstances. Since Herbst presented this exact set of circumstances, the
court should have at least acknowledged Justice O’Connor’s statements.
The Herbst court, however, chose to ignore this aspect of the Troxel
opinion.93
Troxel’s authority was overstated by the Herbst court. The two cases
pose distinct factual scenarios, most notably in the fact that Jake Herbst,
unlike the Troxel children, was in danger of losing all contact with the
86.
87.
88.
89.
90.
91.
92.
93.
See Appellant’s Opening Brief at 9-10, Herbst (No. B152450); see also infra Part
IV.A.1 (discussing the reasonableness aspect of the best interest standard in
California Family Code section 3102).
See CAL. FAM. CODE § 3102(a) (West 2004); WASH. REV. CODE § 26.10.160(3) (1997)
(found unconstitutional by Troxel, 530 U.S. 57); see also infra Part IV.A (discussing
the best interests standard).
Troxel v. Granville, 530 U.S. 57, 71 (2000).
See id. “‘Right off the bat we’d like to say that our position is that grandparent
visitation is in the best interest of the children. It is a matter of how much and how it
is going to be structured[.]’” Id. (quoting opening statement of Granville’s attorney).
Appellant’s Opening Brief at 3, Herbst (No. B152450).
See Troxel, 530 U.S. at 71-72.
Id. at 71.
See Herbst, 125 Cal. Rptr. 2d 836 (making no reference to the fact that without courtordered visitation, Jake Herbst will be effectively denied any visitation with his
sister).
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party seeking visitation. Also, the California statute is dissimilar from the
Washington statute because of its narrower requirements for standing.94
Because of the fundamental differences in these two cases, the Troxel
holding is not applicable to Herbst v. Swan.
B. Kyle O. and Punsly as Applied in Herbst
The Herbst court relied on two California cases, Kyle O. v. Donald
R.95 and Punsly v. Ho,96 which, like Troxel, concerned grandparent
visitation. In both of these cases, grandparents sought visitation pursuant to
California Family Code section 3102.97 The ultimate conclusion in each
case was that the statute was unconstitutional as applied to the facts of the
case.98
In Kyle O., maternal grandparents sought visitation with their
granddaughter, Rachel, after the death of the child’s mother, Kimberly.99
The action was opposed by Rachel’s surviving parent, Kyle.100 Rachel had
been visiting regularly with her grandparents prior to her mother’s death.101
Upon Kimberly’s death, Kyle and the grandparents were unable to agree on
a schedule of visitation.102 The grandparents then petitioned for visitation
with Rachel.103 The trial court granted the grandparents’ requested
visitation, against the wishes of Rachel’s father.104
The trial court’s decision was appealed and while the appeal was
pending, the United States Supreme Court decided Troxel v. Granville.105
Citing Troxel, the appellate court reversed the decision of the trial court on
the grounds that establishing a schedule of visitation against Kyle’s wishes
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
Compare CAL. FAM. CODE § 3102 (West 2004) with WASH. REV. CODE § 26.10.160(3)
(1997).
102 Cal. Rptr. 2d 476 (Ct. App. 3 Dist. 2000).
105 Cal. Rptr. 2d 139 (Ct. App. 4 Dist. 2001).
Kyle O., 102 Cal. Rptr. 2d at 477; Punsly, 105 Cal. Rptr. 2d at 141.
Kyle O., 102 Cal. Rptr. 2d at 487; Punsly, 105 Cal. Rptr. 2d at 147.
Kyle O., 102 Cal. Rptr. 2d at 477.
Id.
Id. at 478. The grandparents were joined as parties to the divorce action of the parents
and were originally granted visitation as part of that suit. Id.
Id. at 478-79. Because the mother’s death was imminent at the time of the original
visitation order, the court had ordered that visitation between the child and
grandparents continue for one month past the mother’s death. Id. at 478. Near the end
of that one month period, the father asked the grandparents to suggest a new visitation
schedule, but the parties could not agree to the amount of time. Id. at 478-79.
Id. at 479.
Id. at 483-84.
Kyle O., 102 Cal. Rptr. 2d at 477; see also supra Part II.A (discussing the facts and
holding of Troxel).
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was an unconstitutional infringement on his right to control the care of his
daughter.106 Two significant factors were considered by the court in
reaching this conclusion: Kyle was neither unfit,107 nor was he attempting
to completely cut off Rachel’s contact with her grandparents.108
In the Punsly case, paternal grandparents filed a petition pursuant to
section 3102 of the California Family Code to obtain visitation with their
granddaughter, Kathryn, after Kathryn’s father passed away.109 Kathryn’s
mother, Manwah, had originally facilitated visits between Kathryn and the
grandparents, but a dispute arose when the grandparents wanted more
visitation opportunities than Manwah was offering.110 The trial court
granted the grandparents’ request,111 and Manwah appealed, citing the
recently-decided Troxel case.112 The appellate court reversed the trial
court’s decision, focusing on the constitutional grounds established in
Troxel.113
Once again, a significant factor in the court’s decision was that
Manwah was willing to voluntarily schedule visitation—she was not trying
to cut off visitation completely.114 Although the grandparents in Punsly put
forth the argument that they would be totally barred from visitation without
a court order, the court rejected this argument based on extensive evidence
to the contrary.115 The child’s mother was willing to negotiate a visitation
106. Kyle O., 102 Cal. Rptr. 2d at 487.
107. Id. at 486.
108. Id. Although the grandparents claimed that Kyle would not allow them any visitation
without a court order, Kyle testified to the contrary. Id. at 479, 483.
Kyle testified that he agreed the grandparents needed to be involved in
Rachel’s life, that they loved her, and that their role was becoming
increasingly positive. He thought the grandparents should be able to see
Rachel in the same fashion that his family saw her, which depended
upon his and Rachel’s schedule…. He asserted that Rachel could
continue to see the grandparents even if visitation were left completely
to his discretion. If the court felt it necessary to order visitation, Kyle
preferred only one overnight visit a month, along with other
spontaneous visits.
Id. at 483 (emphasis added).
Punsly v. Ho, 105 Cal. Rptr. 2d 139, 141 (Ct. App. 4 Dist. 2001).
Id.
Id.
Id. at 140-41.
Id. at 143-47 (discussing Troxel’s application to CAL. FAM. CODE § 3102 under the
facts of Punsly).
114. Id. at 145, 147.
115. Punsly, 105 Cal. Rptr. 2d at 145.
109.
110.
111.
112.
113.
The record shows Manwah agreed to voluntarily arrange visitation on a
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schedule with the grandparents.116 The Punsly court made special note of
this fact and how this consideration relates to the Supreme Court’s Troxel
holding:
We construe Troxel’s emphasis on a parent’s voluntary efforts
for visitation to mean that before a court may intervene, the
parent must be given an opportunity to voluntarily negotiate a
visitation plan. Consequently, it is irrelevant when or why [the
mother] proposed her own visitation schedule. The important
consideration here is that she did.117
It is clear from this statement, and its context in the court’s discussion of
Troxel’s application, that the Punsly court believed that a parent’s
willingness to provide the third party with visitation in the absence of a
court order is significant to a court’s consideration of whether to mandate
visitation.
Herbst is easily distinguished from both Kyle O. and Punsly. In each
of these California cases, as in Troxel, the objecting parent was not
attempting to bar visitation altogether. The surviving parent in every case
had defined appropriate visitation schedules that the third party found
unacceptable. Such a situation is fundamentally different from the facts of
Herbst, where the minor child’s mother was attempting to block all
visitation between siblings.118 It is incongruous to apply the legal logic that
was applied in Troxel, Kyle O., and Punsly, where the child remains in
contact with the party seeking visitation, to cases in which a child is totally
denied access to his sibling.
III. SIBLING RIGHTS FROM A CONSTITUTIONAL PERSPECTIVE
This section seeks to establish that there is a constitutionally protected
fundamental right to sibling visitation. Part A identifies the rights of
children as recognized by the United States Supreme Court. Part B
more limited basis both before and after the Punslys petitioned the court
for visitation…. Also, the Family Court Services counselor noted in a
preliminary report that Manwah disagreed with any court ordered
visitation but claimed the Punslys were welcome to visit in San Diego
once every three months on Sundays and to call Kathryn….
Additionally, a report by Kathryn’s counsel stated Manwah expressed
no desire that Kathryn not see her grandparents nor did she discount the
value such contact could have for Kathryn.
Id. (emphasis added).
116. Id.
117. Id. (citations omitted).
118. Appellant’s Opening Brief at 3, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2
Dist. 2002) (No. B152450).
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examines the extent to which the sibling relationship is constitutionally
protected through the First and Fourteenth Amendments, and why this right
should be recognized as fundamental. Finally, Part C questions the legal
test to be applied in sibling visitation cases, focusing on the procedure that
should be used when two opposing fundamental rights are at issue.
A. The Rights of Children
The Constitution does not specifically provide that children are
afforded any particular legal rights.119 It is well-settled, however, that
children are entitled to constitutional rights.120 The Supreme Court has
specifically stated that “[c]onstitutional rights do not mature and come into
being magically only when one attains the state-defined age of majority.
Minors, as well as adults, are protected by the Constitution and possess
constitutional rights.”121 Unfortunately, the law tends to tie children’s rights
with those of their parents.122 This stems from the presumption that fit
parents will act in their children’s best interests.123
The rights of children separate and apart from those of their parents
was first discussed in Justice Douglas’s dissent in Wisconsin v. Yoder.124 In
his dissent, Justice Douglas seems to “suggest[ ] that children should have
an opportunity to express their independent interests by voicing their
opinions on matters affecting their lives.”125 Children’s rights were
substantially expanded in the late 1960s.126 The Supreme Court explicitly
119. JOHN C. MAYOUE, BALANCING COMPETING INTERESTS IN FAMILY LAW 165 (2d ed.
2003).
120. See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (holding that the State
could not impose an absolute requirement that a pregnant minor obtain parental
consent when she decides to have an abortion); Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503 (1969) (holding that children have rights to freedom of
speech and freedom of expression). It is also undisputed that the California
Constitution protects the rights of minors. See, e.g., In re T.A.J., 73 Cal. Rptr. 2d 331,
334 (1998) (stating that minors enjoy a right to privacy under the California
Constitution).
121. Danforth, 428 U.S. at 74.
122. See MAYOUE, supra note 119, at 165, 167. “It should not surprise anyone that the
Supreme Court has left the nature of children’s rights undefined as the Court has been
unable to agree on the political/philosophical basis of parents’ rights.” Patton & Latz,
supra note 14, at 769.
123. See MAYOUE, supra note 119, at 165.
124. 406 U.S. 205, 241 (1972) (Douglas, J., dissenting in part). “Where the child is mature
enough to express potentially conflicting desires, it would be an invasion of the
child’s rights to permit such an imposition without canvassing his views.” Id. at 242.
125. MAYOUE, supra note 119, at 166.
126. See, e.g., Tinker, 393 U.S. 503 (holding that children have rights to freedom of speech
and expression); In re Gault, 387 U.S. 1 (1967) (holding that a fifteen-year-old was
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held that “neither the Fourteenth Amendment nor the Bill of Rights is for
adults alone.”127
Since the expansion of children’s rights in the late 1960s, those rights
have been narrowed.128 Children’s First Amendment rights were cropped
by the Court’s decision in Hazelwood School District v. Kuhlmeier.129 The
Supreme Court held in that case that the rights of students are not
necessarily equivalent to those of adults in other settings.130 In Veronia
School District v. Acton,131 students’ Fourth Amendment rights were
similarly limited when the Court held that rights to privacy are different in
public schools than in other settings.132 It is important to note, however,
that both Hazelwood and Veronia were aimed at limiting students’ rights,
not all minors’ rights in general.133 Finally, in a decision that may signal a
move back to pre-1960s children’s rights, the Supreme Court made its
decision in Troxel v. Granville,134 the case upon which the Herbst court
based its decision.135 In the landmark case of Troxel, the United States
Supreme Court held unconstitutional (as applied) a Washington statute that
would have allowed for mandatory grandparent visitation even when such
visitation would be against the parent’s wishes.136
B. The Sibling Relationship is Constitutionally Protected
1.
Fourteenth Amendment Due Process
Although the United States Supreme Court has not specifically
addressed the issue of constitutional rights of siblings,137 the recognition of
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
entitled to due process); see also MAYOUE, supra note 119, at 166.
In re Gault, 387 U.S. at 13.
See MAYOUE, supra note 119, at 166-67.
484 U.S. 260 (1988); MAYOUE, supra note 119, at 167.
Kuhlmeier, 484 U.S. at 266. “[Students’ First Amendment rights] must be ‘applied in
light of the special characteristics of the school environment.’” Id. (quoting Tinker,
393 U.S. at 506).
515 U.S. 646 (1995).
See id. at 653.
See MAYOUE, supra note 119, at 174. “The Court has consistently held that because of
the tutelary confines, it would be imprudent to equate the rights of children in the
school setting to adults.” Id. (emphasis added).
530 U.S. 57 (2000).
Herbst v. Swan, 125 Cal. Rptr. 2d 836, 838-40 (Ct. App. 2 Dist. 2002).
See Troxel, 530 U.S. at 75; see also supra Part II.A.
Cf. Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) (declining an opportunity to
decide a comparable issue). “We have never had occasion to decide whether a child
has a liberty interest, symmetrical with that of her parent, in maintaining her filial
relationship. We need not do so here….” Id.
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a fundamental right to sibling visitation is consistent with the Court’s past
decisions.138 Despite the Supreme Court’s limitations on the rights of
children, it is clear from the discussion above that children are afforded
constitutional rights.139 The Supreme Court has also held that familial
relationships are worthy of certain constitutional rights.140 These rights
stem from the historical importance of family relationships.141
The constitutional protection of the family unit was addressed and
resolved by the United States Supreme Court in the case of Moore v. City
of East Cleveland.142 At issue in Moore was an East Cleveland, Ohio
ordinance that limited housing occupancy to members of a single family.143
The ordinance’s definition of “family” was limited in such a way that
Moore’s household violated its terms.144 As the Court stated in that case,
“[o]ur decisions establish that the Constitution protects the sanctity of the
family precisely because the institution of the family is deeply rooted in
this Nation’s history and tradition. It is through the family that we inculcate
and pass down many of our most cherished values, moral and cultural.”145
The Moore decision held that the rights of extended families were
constitutionally protected under due process.146 As Justice Powell stated in
that case, “unless we close our eyes to the basic reasons why certain rights
associated with the family have been accorded shelter under the Fourteenth
Amendment’s Due Process Clause, we cannot avoid applying the force and
rationale of these precedents to the family choice involved in this case.”147
Since the Constitution protects extended families, it is logical to
assume that nuclear families are encompassed within constitutional due
process protections as well.148 Siblings are members of the nuclear family,
so the Constitution should also protect their rights as individual members of
the protected family unit.149 In fact, it has been suggested that the idea of
138. See Barbara Jones, Note, Do Siblings Possess Constitutional Rights?, 78 CORNELL L.
REV. 1187, 1195 (1993).
139. See supra Part III.A.
140. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (holding that the family
unit is protected by due process).
141. Id. at 503-04.
142. 431 U.S. 494 (1977).
143. Id. at 495-96.
144. Id. at 496. Moore lived with her son and two grandsons. Id. The grandsons were first
cousins rather than brothers. Id. The city notified Mrs. Moore that one of her
grandsons was an “illegal occupant.” Id. at 496-97.
145. Id. at 503-04.
146. Id. at 506; see also Jones, supra note 138, at 1210.
147. Moore, 431 U.S. at 501.
148. See Jones, supra note 138, at 1210-11.
149. Id.
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the “family unit” is giving way to the more realistic view that so-called
“family rights” are more accurately acknowledged as rights of
individuals.150 This concept is supportive of the need to recognize
children’s rights as separate from those of their parents.151
In finding the family to be constitutionally protected, the Moore
opinion stated that the family relationship is especially important in times
of adversity or need, when family members tend to come together and
support each other.152 It is simple to apply this rationale to the sibling
context, particularly with regard to California Family Code section 3102,
the statute at issue in Herbst. Siblings can certainly provide each other with
support and security during times of adversity.153 The death of a parent is
one tragic example of a time when siblings may need to rely on each other
in this sense. Since section 3102 applies exclusively in the context of the
death of a parent,154 its provision regarding sibling visitation appears to be
within the realm of constitutionally protected family relationships outlined
in Moore.
The Supreme Court has further clarified the scope of familial
relationships protected by the Fourteenth Amendment Due Process Clause.
In Smith v. Organization of Foster Families,155 the Court addressed the
question of whether a foster family was a “family” for the purposes of
constitutional analysis.156 The Court in that case enumerated three
guidelines defining the breadth of family protected under due process.157
The three Smith guidelines are: (1) a biological relationship between the
parties;158 (2) emotional attachments derived from the intimacy of daily
association;159 and (3) the relationship did not originate from the state.160 At
least one commentator suggests that the relationship between siblings
satisfies these guidelines.161
150.
151.
152.
153.
154.
155.
156.
157.
158.
Patton & Latz, supra note 14, at 776.
Id.
Moore, 431 U.S. at 505.
See Jones, supra note 138, at 1211; see also supra Part I.A.
CAL. FAM. CODE § 3102 (West 2004).
431 U.S. 816 (1977).
Id. at 842.
Id. at 843-45; see also Jones, supra note 138, at 1208.
Smith, 431 U.S. at 843. The Court does state, however, that “biological relationships
are not exclusive [in the] determination of the existence of a family.” Id.; see also
Jones, supra note 138, at 1208.
159. Smith, 431 U.S. at 844; see also Jones, supra note 138, at 1208.
160. Smith, 431 U.S. at 845; see also Jones, supra note 138, at 1208.
161. Jones, supra note 138, at 1208-09.
Sibling relationships meet all three requirements established in Smith.
First, there is a biological relationship between full-blooded siblings and
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These guidelines can be applied specifically to the facts of Herbst.
First, Jeana and Jake are biologically related because they share the same
father.162 Second, there are facts to support that there was an emotional
attachment between Jeana and Jake arising from frequent interactions.163
Finally, the source of the relationship between Jeana and Jake is biological
and entirely apart from the State.164 Since all three guidelines appear to be
satisfied, there is a clear basis for finding that Jeana and Jake have a
constitutional right to visitation protected by the Fourteenth Amendment
Due Process Clause.
2.
First Amendment Freedom of Association
The Supreme Court has held that the choice to enter into and maintain
“certain intimate human relationships must be secured against undue
intrusion by the State.”165 The source of this protection is the First
Amendment’s Freedom of Association Clause.166 The First Amendment
affords these relationships protection because of the role they play in
safeguarding the individual freedom “that is central to our constitutional
scheme.”167
Under this theory, siblings who have been separated by the sate have
successfully argued by way of a § 1983168 action that the State has deprived
them of a constitutionally protected right to associate with each other.169 In
half-siblings. Second, most siblings share emotional bonds stemming
from daily interaction. Commentators and judges agree about the
existence of these emotional attachments…. Third, siblings are family
members by birth and not by state decree. Thus, under the Smith
analysis, sibling relationships should be protected under the Fourteenth
Amendment.
Id. (citations omitted).
162. Herbst, 125 Cal. Rptr. 2d at 837.
163. Jeana Herbst claimed that she and Jake saw each other regularly before the death of
their father. Id. Jeana also said, “I love Jake and would like to remain a part of his
family. I am his closest paternal relative[.]” Id. Jake’s mother, however, claimed that
there had never been significant contact between the siblings. Id. This is an issue
ultimately to be decided by the trier of fact, but the courts involved in the Herbst case
never reached that issue because the statute was held unconstitutional. Id. at 841.
164. See id.
165. Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). “The relationship
between two family members is the paradigm of such intimate human relationships.”
Aristotle P. v. Johnson, 721 F. Supp. 1002, 1005 (N.D. Ill. 1989).
166. See Roberts, 468 U.S. at 618.
167. Id.; see National Legal Research Group, Inc., supra note 3.
168. 42 U.S.C. § 1983 (2000).
169. See, e.g., Aristotle P., 721 F. Supp. 1002; see also National Legal Research Group,
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Aristotle P. v. Johnson, seven children in foster care brought an action
against the Illinois Department of Child and Family Services under section
1983, claiming a violation of their constitutional rights.170 All of the
plaintiffs had been physically separated from their siblings by the state.171
In the first count of the complaint, the plaintiffs argued that the practice of
placing siblings in separate foster homes and then failing to provide for
visitation between siblings on a reasonable basis “violate[d] their right to
freedom of association under the First Amendment as applied to the state
through the Fourteenth Amendment.”172 The second count contended that
the plaintiffs’ substantive due process rights had been violated.173 The
district court held that the Fourteenth Amendment does embrace a First
Amendment right to associate with siblings:174
The plaintiffs have stated a claim for the violation of their
substantive due process [rights] by alleging that the defendants,
with deliberate indifference, pursued policies which caused them
injuries by impairing their relationships with their siblings. The
fact that the plaintiffs’ injuries are psychological rather than
physical is of no moment.175
Aristotle P. is significant because it shows a willingness by courts to
acknowledge a constitutional right to sibling visitation. A Section 1983
action, however, would not be available to the Herbst siblings, because the
source of their separation was a private party (Charlene Swan) rather than a
state actor.176 When a parent refuses to allow a minor child access to a
sibling, the sibling must petition for visitation “pursuant to a statute or on
the basis of a common-law right to sibling visitation.”177 Siblings denied
visitation by a private actor, such as a parent, can seek legal remedy either
from a sibling visitation statute, if one exists in their jurisdiction, or by
petitioning the court under the doctrine of inherent equitable jurisdiction.178
Inc., supra note 3.
Aristotle P., 721 F. Supp. at 1003-04.
Id. at 1004.
Id. at 1005.
Id. at 1007.
Id. at 1009-10; see also National Legal Research Group, Inc., supra note 3.
Aristotle P., 721 F. Supp. at 1009-10 (citations omitted).
Section 1983 applies only when state action has caused the constitutional violation.
42 U.S.C. § 1983 (2003).
177. National Legal Research Group, Inc., supra note 3; Williams, supra note 6, at 269.
178. Williams, supra note 6, at 269. Under the doctrine of inherent equitable jurisdiction,
“if a court believes that siblings have the inherent right to visit each other, the court
will hear the siblings’ petition even if it has no statutory authority to do so.” Id. at
269-70.
170.
171.
172.
173.
174.
175.
176.
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The doctrine of inherent equitable jurisdiction has not often been invoked
in this area of the law, so petitioners in states without a sibling visitation
statute are at an unfortunate disadvantage.179 California, the state in which
Herbst v. Swan was decided, is one of the few jurisdictions that statutorily
provide for sibling visitation under certain circumstances.180
There is at least one example of a lower court recognizing inherent
equitable jurisdiction to hear a sibling visitation case.181 In L. v. G., four
adult siblings sought visitation with their two younger siblings.182 In
holding that the adult siblings had standing to raise the issue, the court
stated:
What right could be more basic, more precious than that of
sharing life experiences with one’s own brother or sister? Surely
nothing can equal or replace … the emotional and biological
bonds which exist between siblings, or the memories of trials and
tribulations endured together … and the sharing of secrets, fears
and dreams. To be able to establish and nurture such a
relationship is, without question, a natural, inalienable right….183
This court’s accurate description of the sibling bond eloquently makes the
case for extending fundamental right status to that special relationship.
3.
Siblings’ Constitutional Rights are Fundamental
Not only do siblings have the constitutional right to maintain contact
with each other, but this right should also be recognized as fundamental.
The classification of a right as fundamental is significant because the
Supreme Court has traditionally given fundamental rights a high degree of
protection from state interference.184 Although there is no specific test for
determining if a particular identified right is fundamental, commentators
have observed that there are several principles upon which the Court
generally relies in identifying such rights.185 These principles include social
traditions and basic societal values.186 Also relevant is the degree of
179. See id. at 270. But see L. v. G., 497 A.2d 215 (N.J. Super. 1985) (applying the
doctrine of inherent equitable jurisdiction to hear a sibling visitation case).
180. See National Legal Research Group, Inc., supra note 3. Other states with sibling
visitation statutes include Arkansas, Illinois, Louisiana, Maryland, Nevada, New
Jersey, and New York. See id.
181. L. v. G., 497 A.2d 215 (N.J. Super. 1985).
182. Id. at 216.
183. Id. at 218.
184. Jones, supra note 138, at 1212. Strict scrutiny is applied when the state infringes on
fundamental rights. Id.
185. Id. at 1213.
186. Id.
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similarity to a right that has previously been found to be fundamental.187
Applying these guidelines to the context of the sibling relationship, it
is clear that siblings’ rights are fundamental. As attachment research has
demonstrated, siblings serve an important social role, and the sibling
relationship is valued highly in the family structure.188 Also, recognizing
sibling visitation rights as fundamental is a natural extension of the already
recognized familial privacy right.189
Regarding the role of history and tradition in family relationships, it is
interesting to note that biological siblings living together in a family have
always been considered natural family members.190 Perhaps what is more
interesting is that the same is not necessarily true for parents.191 The case of
Michael H. v. Gerald D.192 demonstrates the difficulties in determining
who is a “parent” for the purposes of identifying the possessor of parental
fundamental rights. In Michael H., a child, Victoria, was born to a mother,
Carole, who was at that time married to Gerald D.193 Carole, however, had
been having an adulterous affair with another man, Michael H.,194 and
blood tests later showed that Michael H. was most likely the biological
father of Victoria.195 Michael, desiring visitation with Victoria, sought to be
declared Victoria’s legal father.196 The superior court held, however, that
Gerald D. was the legal father of Victoria.197 In addressing the issue of
fundamental liberty interests on appeal, the Supreme Court stated:
[T]he legal issue in the present case reduces to whether the
relationship between persons in the situation of Michael and
Victoria has been treated as a protected family unit under the
historic practices of our society, or whether on any other basis it
has been accorded special protection. We think it impossible to
find that it has. In fact, quite to the contrary, our traditions have
187.
188.
189.
190.
191.
192.
193.
194.
195.
Id.
See supra Part I.A. (discussing the significance of the sibling bond).
Jones, supra note 138, at 1214.
Patton & Latz, supra note 14, at 778.
See id.
491 U.S. 110 (1989).
Id. at 113.
Id.
Id. at 114. The blood test showed that there was a 98.07% probability that Michael
was Victoria’s father. Id.
196. Id. at 118.
197. See id. at 115. According to the applicable law, a child born of a wife who was
cohabiting with her husband (who is capable of having children) was presumed to be
the child of the husband and wife together. See id. Applying this law to the facts of
the case, the Court determined that “there were no triable issues of fact as to
Victoria’s paternity.” Id.
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protected the marital family (Gerald, Carole, and the child they
acknowledge to be theirs) against the sort of claim Michael
asserts.198
In Michael H., the child’s biological father was denied the right to
visitation because he was not a parent within the context of state law.199 Yet
parents, as a general class, are afforded a fundamental liberty interest in
filial association despite the uncertainty of the exact definitional limits of
parental association rights.200 Why, then, should siblings, whose treatment
as natural family members has never been questioned,201 be found not to
have those same fundamental liberty interests? The fact is that the
“evidence supports a clear finding that sibling’s [sic] association has been a
relationship historically endemic to the American definition of family.
Siblings … should clearly be held to possess an inherent, fundamental
liberty interest in continued contact and association.”202
Justice Stevens discussed the possibility of a fundamental right for
children to retain familial relationships in his Troxel dissent:
While this Court has not yet had occasion to elucidate the nature
of a child’s liberty interests in preserving established familial or
family-like bonds, it seems to me extremely likely that, to the
extent parents and families have fundamental liberty interests in
preserving such intimate relationships, so, too, do children have
these interests, and so, too, must their interests be balanced in the
equation.203
Apparently, then, there is at least one Supreme Court Justice who believes
that children are, at least potentially, deserving of the same degree of
familial rights as their parents.
C. Legal Standard to be Applied in Sibling Visitation Cases
1.
Parental Rights
Parents have a fundamental Fourteenth Amendment Due Process right
to raise their children.204 This right has been confirmed and restated
198. Michael H., 491 U.S. at 124.
199. Id. at 126-27; see also Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J.,
dissenting).
200. See Patton & Latz, supra note 14, at 778.
201. See id.
202. Id.
203. Troxel, 530 U.S. at 88 (Stevens, J., dissenting) (citation omitted).
204. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Without doubt, [the Fourteenth Amendment] denotes not merely
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numerous times by the Supreme Court.205 As the Court has stated, the
“primary role of parents in the upbringing of their children is now
established beyond debate as an enduring American tradition.”206 There is a
presumption that a fit parent will act in his child’s best interest.207 This
presumption is based on the natural law208 and is supported by tradition.209
In Herbst v. Swan, this parental right was cited as the rationale for
denying Jeana Herbst’s request for visitation with her young brother,
Jake.210 Relying mainly on Troxel, the California Appellate Court for the
Second District concluded that Jeana and Jake’s interest in sibling
visitation could not overcome Charlene Swan’s interest, as a fit parent, to
select with whom her son should associate.211
2.
Legal Test
In reaching its decision, the Herbst court looked to Charlene Swan’s
fundamental interest and found that it was superior to the interests of her
son and his sister.212 This conclusion, however, is based on faulty legal
logic. Constitutional protections are designed to protect the entire family.213
Sibling relationships are therefore within the category of constitutionally
protected relationships.214 Although it is true that the fundamental rights of
freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men.
Id. (emphasis added).
205. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holding that “the
custody, care and nurturing of a child resides first with the parents”); Pierce v. Soc’y
of Sisters, 268 U.S. 510, 534-35 (1925) (holding that parents have a right to “direct
the upbringing and education of children under their control”).
206. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (holding that the First and Fourteenth
Amendments bar the State from compelling Amish parents to send their children to
formal high school through age sixteen).
207. See Troxel, 530 U.S. at 68.
208. See Francis Barry McCarthy, The Confused Constitutional Status and Meaning of
Parental Rights, 22 GA. L. REV. 975, 976 (1988).
209. See Yoder, 406 U.S. at 232 (1972). “[T]he history and culture of Western civilization
reflect a strong tradition of parental concern for the nurture and upbringing of their
children.” Id.
210. Herbst v. Swan, 125 Cal. Rptr. 2d 836, 841 (Ct. App. 2 Dist. 2002).
211. Id. at 841.
212. Id.
213. See supra text accompanying notes 140-52.
214. See supra text accompanying notes 140-52.
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the parent are an issue in Herbst, the fundamental rights of the siblings are
similarly a factor that the court should have considered. Justice Stevens,
dissenting from the judgment in Troxel, supports this view. According to
Stevens, children’s rights must be balanced as one factor in the judicial
equation.215
The Supreme Court faced a conflict between parents’ and children’s
rights in the case of Planned Parenthood v. Danforth.216 The Court held in
that case that the state could not impose an absolute requirement that a
pregnant minor obtain parental consent when she decides to have an
abortion within the first twelve weeks of pregnancy. 217 In making this
decision, “[t]he Court … held that the parental interest in the child’s
decision is at most equal to the minor’s right to privacy.”218
Based on the Court’s holding in Danforth, it can be said that when
parents’ and children’s rights conflict, neither is stronger than the other.219
Yet the unfortunate historical reality of this scenario is that children tend to
lose out when their rights are weighed against those of parents.220 Since the
interests of both parties are constitutionally protected, however, the rights
of one should not automatically trump the rights of the other.221 Justice
Stevens spoke to this concept in his Troxel dissent, in which he declared
that the Supreme Court’s case history regarding children’s rights requires
the rejection of any suggestion that children are merely chattel property
when it comes to parental rights.222
IV. CALIFORNIA LAW AND THE BEST INTERESTS STANDARD
When the fundamental interests of two parties are diametrically
opposed, the only fair way for the court to decide the case is to apply a
balancing test. In a case such as Herbst v. Swan, involving a child’s liberty
interests, a balance must be struck between the interests of the parent, the
215.
216.
217.
218.
219.
Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
428 U.S. 52 (1976).
Id. at 74.
Jones, supra note 138, at 1217; see also Danforth, 428 U.S. at 75.
See Alison M. Brumley, Parental Control of a Minor’s Right to Sue in Federal Court,
58 U. CHI. L. REV. 333, 345 (1991); McCarthy, supra note 208, at 1016; Jones, supra
note 138, at 1217; see also infra Part IV.A. (discussing the balancing test to be
applied in sibling visitation cases).
220. See William Wesley Patton, The Status of Siblings’ Rights: A View into the New
Millennium, 51 DEPAUL L. REV. 1, 24-25 (2001).
221. See Jones, supra note 138, at 1215-16.
222. See Troxel v. Granville, 530 U.S. 57, 88-89 (2000) (Stevens, J., dissenting). The
California Supreme Court has also rejected the notion that children are merely chattel
property of their parents. See In re Jasmon O., 8 Cal. 4th 398, 419 (1994).
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child, and the state.223 The appropriate goal is to decide what is in the best
interests of the child.224 Part A of this section seeks to establish that the
proposed legal standard—the best interests of the child—is the appropriate
standard to be applied in sibling visitation cases, and examines the extent to
which this standard is already applied in other areas of the law. Part B
looks at how California legislatively determined that sibling visitation is in
children’s best interests. Finally, Part C applies the proposed standard to
the facts of Herbst to conclude that sibling visitation would have been in
the best interests of the child, Jake Herbst.
A. The Best Interests Standard
1.
Troxel’s Discussion of the Best Interests Standard in
Relation to Herbst225
The Troxel opinion criticized the prudence of applying a best interests
standard to third-party visitation issues.226 The Court’s concern was that a
parent’s decision opposing visitation was afforded no deference.227 Instead,
the third-party visitation statute at issue in that case “places the best-interest
determination solely in the hands of the judge. Should the judge disagree
with the parent’s estimation of the child’s best interests, the judge’s view
necessarily prevails.”228
This statement from the Court was spurred by its disapproval with the
manner in which the lower court judge approached the issue of parental
deference in that case.229 The superior court judge had begun his analysis
with the presumption that third-party visitation would be in the best
interests of the children, placing on the fit parent “the burden of disproving
that visitation would be in the best interest of her daughters.”230
The concept the Court seems to be emphasizing in Troxel is that the
223. See Brief of Amicus Curiae William Wesley Patton, Whittier Law School Legal
Policy Clinic at 2, Butler v. Harris, 37 P.3d 379 (2002) (No. S101836).
224. See Jones, supra note 138, at 1216-19. See generally Brumley, supra note 219;
McCarthy, supra note 208.
225. The statutes at issue in both Herbst and Troxel contained provisions for weighing the
best interests of the child. See CAL. FAM. CODE § 3102(a) (West 2004); WASH. REV.
CODE § 26.10.160(3) (2004). Because the Herbst court relied heavily on the Troxel
opinion in reaching its decision, a review of Troxel’s discussion of the best interests
standard is relevant.
226. See Troxel, 530 U.S. at 67.
227. Id.
228. Id.
229. See id. at 69.
230. Id. For a discussion of the facts of Troxel, see supra Part II.A.
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presumption that a fit parent will act in the best interests of her child should
be incorporated into an assessment of the best interests of the child.231 The
difficulty, however, is the determination of how much weight must be
given to this presumption. There is clearly a need for deference to parental
decisions concerning third-party visitation in certain circumstances.232 For
example, a parent should be given great deference in regard to a statute like
the one at issue in Troxel, which allowed non-family members and
potentially even strangers to petition for visitation.233
These same concerns are not present in the language of the California
statute at issue in Herbst. That statute limits the category of people who
may seek visitation to those who already have an established familial
relationship with the child.234 Even in this circumstance, substantial
deference to parental decisions is appropriate when the parent is willing to
offer at least some visitation, and only the amount is in question. In Herbst,
however, Charlene Swan was not willing to offer Jeana Herbst any
visitation with Jake.235 This presents a fundamentally different situation.
2.
The Post-Troxel Rebuttable Presumption
Although it is clear from Troxel that the parental presumption must be
included in an assessment of the child’s best interests, Troxel does not state
that this presumption is not rebuttable.236 The California visitation statute
permits relatives to petition for reasonable visitation.237 Attorney Laurie
Armstrong, representing Jeana Herbst, has argued that “[i]t is logical to
conclude that visitation would not be reasonable in the face of a parental
objection, absent the … petitioner’s rebuttal of” the presumption that the
parent is acting in her child’s best interests.238
Phrased differently, the court could have inferred a rebuttable
231. See Paige Ingram Castañeda, O Brother (or Sister), Where Art Thou: Sibling Standing
in Texas, 55 BAYLOR L. REV. 749, 762 (2003).
232. See Brief of Amicus Curiae at 8-9, Butler (No. S101836). “There is no question that
parents have a vital stake in determining who will have access to their children and
who will be a formative influence in their children’s maturation.” Id.
233. See WASH. REV. CODE § 26.10.160(3) (2004). “Any person may petition the court for
visitation rights at any time….” Id.
234. See CAL. FAM. CODE § 3102(a)-(b) (West 2004). The statute identifies specific family
members who may seek visitation. See id. § 3102(a). “[T]he court shall consider the
amount of personal contact between the person and the child before the application
for the visitation order.” Id. § 3102(b).
235. See Appellant’s Opening Brief at 3, Herbst v. Swan, 125 Cal. Rptr. 836 (Ct. App. 2
Dist. 2002) (No. B152450).
236. See generally Troxel v. Granville, 530 U.S. 57 (2000).
237. See CAL. FAM. CODE § 3102(a) (emphasis added).
238. Appellant’s Opening Brief at 10, Herbst (No. B152450).
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presumption that, in the face of a parental objection, sibling visitation is not
in the best interests of the child. The burden would then shift to the plaintiff
to overcome this presumption. One recent California case supports the
theory that if such a presumption were applied, it would serve to adequately
protect parental rights.239
In re Marriage of Harris240 was decided by the California Supreme
Court post-Troxel and post-Herbst. The superior court judge, applying the
best interests standard, had denied Karen Butler’s request to terminate
court-ordered visitation between her daughter and the child’s paternal
grandparents.241 The paternal grandparents, who lived in California, were
granted extensive visitation with the child, who lived out-of-state.242 The
court of appeal reversed, holding that the trial court’s order had violated
Karen Butler’s constitutional liberty interest in raising her child,243 and the
grandparents appealed.
At issue in the Harris case was the constitutionality of California’s
grandparent visitation statute, section 3104 of the Family Code.244 Karen
Butler challenged the statute both on its face and as applied, claiming that it
violated her rights as a fit parent to control the upbringing of her
239. See In re Marriage of Harris, 96 P.3d 141, 143 (Cal. 2004).
240. 96 P.3d 141.
241. Id. at 146. The parents, Karen Butler and Charles Harris, were divorced, and Karen
had sole legal and physical custody of their child, Emily. Id. at 144. The paternal
grandparents had been granted visitation with Emily and there is extensive procedural
history indicating the difficulties between the mother and grandparents regarding
these visits. Id. at 144-47. Among Karen’s concerns were the history of violence
exhibited by Charles Harris, the possibility that the paternal grandfather may also
have had a history of abusive behavior, concern that the paternal grandparents needed
counseling regarding the issue of abuse, and concern that the grandparents might not
be able to protect Emily from the father. Id. at 144-45.
242. Id. at 146.
The court awarded the paternal grandparents visitation for 12
days in August, 12 days in June, and from December 26 to 31. The court
ordered that Emily fly unaccompanied to California on a nonstop flight
beginning with the December visit if permitted by the airlines to do so,
and required the mother to take Emily to the airport in Utah and pick her
up. The paternal grandparents further were permitted to take Emily to
visit other relatives in or out of California.
Id. (footnote omitted).
243. Id. at 143, 146.
244. See CAL. FAM. CODE § 3104 (West 2004). The grandparents had argued that section
3103 applied, but after a thorough examination of the two statutes, the court
concluded that section 3104 was the controlling statute in this case. See Harris, 96
P.3d at 147-49; see also CAL. FAM. CODE § 3103 (West 2004).
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daughter.245 In analyzing the arguments, the California Supreme Court
looked to Troxel for guidance. In Troxel, the Court observed that by failing
to apply the appropriate fit-parent presumption, the trial court had left the
mother’s fundamental rights unprotected.246 Interestingly, however, in its
criticism of the Washington trial court, the Troxel opinion included by way
of comparison a citation to California Family Code section 3104, the statute
at issue in Harris.247 The statute specifies that “[t]here is a rebuttable
presumption affecting the burden of proof that the visitation of a
grandparent is not in the best interest of a minor child” if such visitation is
opposed by either both parents, or by the parent with legal and physical
custody of the child.248 The Harris court, citing Troxel, concluded that
section 3104 did not violate the fundamental rights of parents and therefore
survived the facial249 and as-applied250 constitutional challenges under both
the federal and state constitution.251
By citing section 3104 with approval, the Troxel court implied that
this type of rebuttable presumption is an appropriate means of safeguarding
parental rights in third-party visitation cases. Although the statutory section
at issue in Herbst did not expressly provide for such a rebuttable
presumption, the court could have inferred the presumption from the
language of the statute.252
There is support for the position that the presumption that a parent’s
decision regarding sibling visitation is rebuttable in the Maryland sibling
visitation case of In re Tamara R.253 The appellate court, citing Troxel,
addressed the issue of how to “superimpose” the parental presumption onto
245.
246.
247.
248.
249.
250.
251.
See Harris, 96 P.3d at 149.
Troxel v. Granville, 530 U.S. 57, 69-70 (2000).
Id. at 70; see also Harris, 96 P.3d at 149.
See CAL. FAM. CODE § 3104(e)-(f).
See Harris, 96 P.3d at 151-52.
See id. at 152.
See id. at 154. The California Supreme Court did, however, affirm the order of the
court of appeal reversing the grandparent visitation order, because the record
indicated that the superior court judge who made the order had applied only the best
interests standard. Id. The case was remanded for the superior court to consider the
merits of the case under the appropriate standard, applying the rebuttable presumption
that grandparent visitation is not in the child’s best interests. See id.
252. See supra text accompanying note 238.
253. See In re Tamara R., 764 A.2d 844, 853 (Md. App. 2000). In Tamara R., Tamara, a
child in the custody of social services, sought visitation with her siblings, who were
still living with their father. See id. at 846. Tamara’s petition had been rejected by the
trial court, which found that an order of visitation would interfere with the father’s
constitutional rights. See id. at 846-47.
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the best interests standard.254 According to Tamara R., “Troxel compels the
court to apply a rebuttable presumption in favor of parents who oppose a
non-parent’s petition for visitation with their custodial children.”255
According to that court, “[t]he best way to do this … is to apply a
presumption that the parent’s decision to decline visitation is in the best
interest of the child … and to place the burden on the non-parent seeking
visitation to rebut that presumption.”256
If the Herbst court had applied a rebuttable presumption favoring
Charlene Swan’s opposition to sibling visitation, the ultimate decision in
the case could have been different. The court of appeal should have
remanded the case to the trial court, as was done in Harris,257 for
consideration of the merits of the case under the appropriate rebuttable
presumption standard.
3.
The Best Interests Standard is Commonly Applied in Other
Areas of Law
The idea of putting the child’s interests first is not new to the legal
arena. In examining the complicated issue of balancing the competing
interests of parents and children, Justice Stevens stated in his Troxel dissent
that “[t]he constitutional protection against arbitrary state interference with
parental rights should not be extended to prevent the States from protecting
children against the arbitrary exercise of parental authority that is not in
fact motivated by an interest in the welfare of the child.”258 Justice Stevens’
dissent recognizes the unfortunate reality that sometimes a fit parent does
not act in the child’s best interests.259 Under such circumstances, it is
appropriate for “the State to act as arbiter, through the entirely well-known
best-interests standard.”260
This approach is consistent with other areas of law in which the best
interests of the child are of primary importance.261 In California, the best
interests standard already determines issues regarding termination of
parental rights,262 custody,263 and parental visitation.264
254.
255.
256.
257.
258.
259.
260.
261.
Id. at 853.
Id. (emphasis added).
Id.
See In re Marriage of Harris, 96 P.3d 141, 154 (Cal. 2004); see also supra note 251.
Troxel v. Granville, 530 U.S. 57, 89 (2000) (Stevens, J., dissenting).
See id.
Id. at 91.
See, e.g., Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966) (applying the best
interests standard to determine custody of a seven-year-old child).
262. See CAL. WELF. & INST. CODE §§ 366.26(c)(4)(A), 388(c) (West 2004); see also, e.g.,
In re Casey D., 82 Cal. Rptr. 2d 426 (Ct. App. 4 Dist. 1999) (holding that a mother
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Termination of Parental Rights
The state will terminate the rights of a biological parent if doing so is
in the best interests of the child.265 California Welfare and Institutions Code
section 366.26 specifies the procedural requirements involved in
terminating parental rights.266 According to that statute, the juvenile court
must hold a hearing at which the court hears evidence and makes
appropriate findings.267 The primary goal of this process is the termination
of parental rights in order to provide the child the opportunity to be
adopted.268 The statute clearly states, however, that parental rights should
not be terminated if doing so would not be in the best interests of the
child.269
In addition, orders finding a child to be a dependent of the juvenile
court cannot be modified unless doing so would satisfy the best interests of
the child involved.270 California Welfare and Institutions Code section 388
concerns the procedure for appealing this type of order.271 According to
that statute, a new hearing on the issue will not be held unless “it appears
that the best interests of the child may be promoted by the proposed
change….”272
In the case of In re Casey D.,273 a California appellate court rejected
an appeal by parents whose daughter, Casey, had been declared a
dependent child under section 388.274 Reunification services had originally
been ordered, but were later terminated.275 As a basis for the appeal of that
263.
264.
265.
266.
267.
268.
269.
270.
271.
272.
273.
274.
275.
could not modify an order terminating reunification services where she failed to meet
the burden of showing both that a change of circumstances exists and that the
proposed change is in the best interests of the child).
See, e.g., In re Marriage of Goodarzirad, 230 Cal. Rptr. 203, 206 (Ct. App. 5 Dist.
1986). “The entire scheme underlying custody decrees is that primary consideration
must be given to the welfare of the child. The ultimate aim of the court is to serve the
best interests and welfare of the minor children.” Id. (citations omitted).
See CAL. FAM. CODE § 3100(a) (West 2004).
CAL. WELF. & INST. CODE § 366.26(c)(4)(A) (West 2004).
Id. at (a)-(b).
Id. at (b).
Id. § 366.26(b)(1).
Id. § 366.26(c)(4). The statute specifies the circumstances that constitute “a
compelling reason for determining that termination would be detrimental to the
child.” Id. § 366.26(c)(1); see also infra Part IV.B.
Id. § 388(c) (West 2004).
CAL. WELF. & INST. CODE § 388 (West 2004).
Id. § 388(c).
82 Cal. Rptr. 2d 426 (Ct. App. 4 Dist. 1999).
Id. at 428.
Id.
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termination, Casey’s mother, Daria, alleged a change of circumstances.276
Specifically, Daria claimed that she was rehabilitated from her drug
addictions and had achieved a beneficial relationship with Casey.277
Although the Casey D. court stated that “[i]nteraction between natural
parent and child will always confer some incidental benefit to the child,”278
the court further observed that a parent requesting modification of a
termination order must show something more than the fact that the parentchild relationship is beneficial.279 The Casey D. court re-stated, in context,
the best interests standard: “[T]he parent-child relationship [must] promote
the well-being of the child to such a degree that it outweighs the well-being
the child would gain in a permanent home with new, adoptive parents.”280
Clearly, the California Legislature believes that the best interests of
the child is an appropriate standard for making important decisions that will
have an impact on the child’s life.281 If the best interests standard is
satisfactory for the purposes of an issue as serious as the termination of
parental rights, surely it is also an appropriate standard for determining
questions of sibling visitation.
b.
Child Custody and Visitation
When parents divorce, judges may be in the position of having to
determine the important issues of child custody and parental visitation.
These are decisions that will inevitably have a significant impact on a
child’s life. The California Legislature has statutorily addressed the
standards to be applied under such circumstances. When California courts
make these critical decisions, the best interests of the child are the
controlling factors.
The best interests of the child are of paramount importance in custody
decisions.282 The California Family Code states specifically that “it is the
public policy of this state to assure that the health, safety, and welfare of
children shall be the court’s primary concern in determining the best
276.
277.
278.
279.
280.
281.
Id. at 432.
Id.
Id. at 433-34 (quoting In re Autumn H., 32 Cal. Rptr. 2d 535 (Ct. App. 4 Dist. 1994)).
Casey D., 82 Cal. Rptr. 2d at 435 n.4.
Id. (quoting In re Autumn H., 32 Cal. Rptr. 2d 535 (Ct. App. 4 Dist. 1994)).
See Brief of Amicus Curiae William Wesley Patton at 8, Whittier Law School Legal
Policy Clinic, In re Marriage of Harris, 37 P.3d 379 (Cal. 2002) (No. S101836)
(discussing the best interests standard in relation to California’s grandparent visitation
statute, Family Code section 3104). “[T]he primary impetus behind the provision was
not the strengthening of grandparental visitation, but the protection of the best interest
of the child.” Id. (emphasis omitted) (quoting Lopez v. Martinez, 102 Cal. Rptr. 2d
71, 76 (Ct. App. 2 Dist. 2000).
282. See CAL. FAM. CODE § 3020(a) (West 2004).
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interest of children when making any orders regarding the physical or legal
custody … of children.”283 The state’s interest in satisfying the best
interests of the child is so strong that even when divorcing parents agree
regarding custody of minor children, such agreements may be void.284
According to the holding of In re Marriage of Goodarzirad,
[t]he entire scheme underlying custody decrees is that primary
consideration must be given to the welfare of the child. The
ultimate aim of the court is to serve the best interests and welfare
of the minor children. Based on these strong policy reasons,
stipulations between parents involving the minor children which
attempt to divest the court of jurisdiction are void….285
The best interests of the child are also taken into account in ordering
visitation for a non-custodial parent.286 It is well recognized within the
courts that the best interests of the child are of paramount concern in
determining visitation orders.287 Section 3100 of the California Family
Code states that “the court shall grant reasonable visitation rights to a
parent unless it is shown that the visitation would be detrimental to the best
interest of the child.”288
Courts seem to accept a general presumption that it is always in the
best interest of a child to see his parents.289 Oddly, this same theory is
rejected as it relates to siblings. This may be a reflection of the difficulty in
achieving judicial recognition of the significance of the sibling bond.290 The
result is that a child is permitted to visit with even an abusive or dangerous
parent,291 yet a child like Jake Herbst, whose parent has passed away, is not
283. Id.
284. See In re Marriage of Goodarzirad, 230 Cal. Rptr. 203 (Ct. App. 5 Dist. 1986). In this
case, a husband asked the court to vacate a court-approved stipulation to which he and
his former wife had agreed regarding custody and visitation of their son. See id. at
204. According to the agreement, the father waived “any and all right … to the care,
custody and control of the minor child … as well as any right of visitation with said
minor child.” Id. The father’s request to vacate this stipulation was originally denied.
Id. at 205. The appellate court, however, overturned this decision based on strong
public policy favoring the child’s interests. Id. at 206-07.
285. Id. at 206 (citations omitted).
286. See CAL. FAM. CODE § 3100(a) (West 2004).
287. See In re Marriage of Matthews, 161 Cal. Rptr. 879, 883 (Ct. App. 1 Dist. 1980).
“The paramount consideration in matters of child custody and visitation is the welfare
of the child.” Id.
288. CAL. WELF. & INST. CODE § 3100(a).
289. See, e.g., Matthews, 161 Cal. Rptr. at 883.
290. See supra text accompanying notes 14-16.
291. Courts will go to great lengths to ensure that all parents have visitation rights with
their children. See CAL. FAM. CODE § 3020(b) (West 2004). The court will order
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entitled to visit his half-sister, who may be his only biological link to his
paternal heritage.292
B. California has Legislatively Recognized in Other Contexts that
Sibling Visitation is in the Best Interests of Children
California is somewhat unique in the fact that it has enacted
legislation that recognizes the significance of the sibling relationship in
certain contexts.293 One of only a limited number of states to enact
legislation that specifically mentions sibling visitation, California is among
the minority of states to recognize the importance of the sibling bond.294
Part One of this section describes how California has chosen to place
particular significance on the sibling bond as it relates to children in foster
care. Part Two examines the special role that the sibling bond plays in
California regarding the decision of whether to terminate parental rights.
Together, these two subsections illustrate the legislative intent favoring a
right of siblings to maintain contact with each other in the state of
California.
1.
The Foster Care System and Sibling Relationships
Children may be separated from their siblings for a variety of
reasons.295 For the purposes of this discussion, children separated from
their siblings can be divided into two categories; there are those who are
living in a permanent home (with at least one biological or adoptive parent)
and those who are in foster care. Children living in a permanent home in
California, according to the holding of Herbst v. Swan, are not entitled to
sibling visitation against parental wishes.296 In contrast, children in
California’s foster care program have substantial rights to sibling
visitation.297
The California Welfare and Institutions Code includes specific
292.
293.
294.
295.
296.
297.
supervised visitation if necessary to ensure the best interests of the child are satisfied
if a protective order has been directed against a parent. See id. § 3100(b). In cases in
which domestic violence has been alleged, the visitation order must specify “the time,
day, place, and manner of transfer of the child, so as to limit the child’s exposure to
potential domestic conflict or violence and to ensure the safety of all family
members.” See id. § 3100(c).
See Herbst v. Swan, 125 Cal. Rptr. 2d 836, 837 (Ct. App. 2 Dist. 2002).
See National Legal Research Group, Inc., supra note 3.
See id.
Id.
See Herbst, 125 Cal. Rptr. 2d at 841.
See CAL. WELF. & INST. CODE §§ 16501.1(f)(6), 16002 (West 2004).
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provisions regarding the maintenance of sibling relationships.298 Section
16002 states in its first paragraph, “when siblings have been removed from
their home … the siblings will be placed in foster care together, unless it
has been determined that placement together is not in the best interest of
one or more siblings.”299 The next paragraph of the Code provides that if
siblings are not placed together, the social worker must provide an
explanation and describe the efforts being made to change the placement so
the siblings can be together.300 The California Legislature clearly finds that
these procedures are important for strengthening the children’s family
ties.301
Section 16002 further states that “[w]hen placement of siblings
together in the same home is not possible, diligent effort shall be made, and
a case plan prepared, to provide for ongoing and frequent interaction
among siblings….”302 Other Code sections similarly require sibling
visitation for children placed in foster care.303 For example, when a child’s
permanency plan does not include reunification services, “the child’s plan
for legal permanency shall include consideration of the existence of and the
relationship with any sibling … including their impact on placement and
visitation.”304
Section 16501.1 of the Code elaborates on sibling visitation rights of
children in foster care. When siblings are not placed together, social
workers must ensure that they are informed of “significant life events” that
occur.305 These events include the “birth of a [new] sibling” and important
changes such as a change in a sibling’s placement, health status, or
permanency plan.306
It is apparent from the discussion above that the California
Legislature finds the sibling bond to be of particular significance in the
lives of children. It is logical to conclude that siblings outside of the foster
care system would benefit from maintaining sibling relationships as much
as those within the foster care system. The Herbst court should have
considered these Code sections as evidence of the Legislature’s recognition
that maintaining sibling relationships is in the best interests of children.
298.
299.
300.
301.
302.
303.
304.
305.
306.
See id.
Id. § 16002(a).
Id. § 16002(b).
Id. § 16002(a).
Id. § 16002(b) (emphasis added).
See CAL. WELF. & INST. CODE § 362.1(a)(1)(B)(2) (West 2004).
Id. § 362.1(b).
Id. § 16501.1(f)(6).
Id. § 16501.1(f)(6)(A)-(C).
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2.
749
Termination of Parental Rights and the “Sibling Bond
Exception”
Section 366.26 of the California Welfare and Institutions Code
provides that courts may terminate parental rights unless there is a
compelling reason for believing that such a termination would be
detrimental to the child.307 The statute specifies five circumstances that
constitute “a compelling reason for determining that termination would be
detrimental to the child.”308 The fifth stated exception is for sibling
relationships.309 Parental rights will not be terminated when it is found that
such termination would cause substantial interference with a child’s sibling
relationship.310
Several factors must be considered in determining whether this
“sibling bond exception” applies in a given situation.311 The statute
mandates consideration of whether the siblings were raised together in the
same home, whether they shared significant experiences or have an existing
strong bond, and “whether ongoing contact [would be] in the child’s best
interest, including the child’s long-term emotional interest.”312 Also, it is
307. Id. § 366.26(c)(1).
308. Id.
309. CAL. WELF. & INST. CODE § 366.26(c)(1)(E) (West 2004). The other exceptions are:
(A) The parents or guardians have maintained regular visitation and
contact with the child and the child would benefit from continuing the
relationship.
(B) A child 12 years of age or older objects to termination of parental
rights.
(C) The child is placed in a residential treatment facility, adoption is
unlikely or undesirable, and continuation of parental rights will not
prevent finding the child a permanent family placement if the parents
cannot resume custody when residential care is no longer needed.
(D) The child is living with a relative or foster parent who is unable or
unwilling to adopt the child because of exceptional circumstances, that
do not include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of providing
the child with a stable and permanent environment and the removal of
the child from the physical custody of his or her relative or foster parent
would be detrimental to the emotional well-being of the child….
Id. § 366.26(c)(1)(A)-(D).
310. Id. § 366.26(c)(1)(E).
311. See id.
312. Id. § 366.26(c)(1)(E). The exception states:
There would be substantial interference with a child’s sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was raised
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not enough to simply find that the sibling bond would be disrupted—the
finding must be “compelling.”313
The case of In re Jacob S.314 discussed the process courts must go
through when this statutory challenge is made.315 First, the party
challenging the termination of parental rights bears the burden of showing
both that a “sibling relationship exists” and that the relationship is
significant enough that the “severance [of that relationship] would be
detrimental to the child” in question.316 If the court finds that severance of
the sibling bond would truly be detrimental to the child, then it must weigh
that detriment against the benefit to be gained from permanent adoption.317
The Jacob S. case involved several siblings, including two sisters, Autumn
and Jessica, ages eleven and fourteen, who were especially close.318 The
court even noted, “[i]t is likely that Autumn would suffer a detriment if she
never saw Jessica again.”319 Although the court decided that the sibling
bond exception did not apply to the facts of that case,320 it is important to
note that the court based its conclusion on the premise that the termination
of parental rights would not necessarily terminate the siblings’ relationships
with each other.321
with a sibling in the same home, whether the child shared significant
common experiences or has existing close and strong bonds with a
sibling, and whether ongoing contact is in the child’s best interest,
including the child’s long-term emotional interest, as compared to the
benefit of legal permanence through adoption.
Id.
313. Id. § 366.26(c)(1). “[T]he court shall terminate parental rights … unless the court
finds a compelling reason….” Id.; see also In re Jacob S., 128 Cal. Rptr. 2d 654, 658
(Ct. App. 4 Dist. 2002). “The existence of a relationship alone is not enough, but it
must be ‘sufficiently significant’ to cause detriment on termination.” Id.
314. 128 Cal. Rptr. 2d 654 (Ct. App. 4 Dist. 2002).
315. See generally id.
316. Id. at 658.
317. Id.
318. Id. at 656-58. “SSA reported that Autumn and Jessica shared the closest sibling
bond.” Id. at 656. Parental rights were terminated as to Autumn, but not Jessica. Id.
319. Id. at 659.
320. See Jacob S., 128 Cal. Rptr. 2d at 659. Based on research of published California
opinions, it does not appear that the sibling bond exception has ever been successfully
invoked.
321. See id. Autumn and another sibling, Jacob, were living with their paternal
grandparents, who were going to adopt them. Id. at 656, 659. The grandparents had
expressed willingness to maintain the relationships between Autumn and Jacob and
their siblings. Id. at 659. The court found that “[t]he grandparents have done so thus
far, and there is no evidence they intend to stop once they have adopted Autumn and
Jacob.” Id.
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To summarize, it appears that the California Legislature places a high
significance on the sibling bond.322 The decision to terminate parental
rights is made for the purpose of protecting children, yet the sibling bond is
so important that it can act as a bar to the termination process. Since the
California Legislature, as representatives of the public, have found the
sibling bond to be so important in the lives of children, the Herbst v. Swan
court should have considered these findings as evidence of the best
interests of the child.323
C. Applying the Best Interests Standard and Legislative Intent to
Herbst v. Swan
According to the discussion above, the appropriate standard to be
applied in sibling visitation cases is the best interests of the children
involved.324 It has also been established that the California Legislature
favors the maintenance of sibling contact.325 Applying these premises to the
facts of Herbst v. Swan, it appears that if the court had applied the best
interests standard,326 sibling visitation should have been ordered.
One challenge in applying the best interests standard is that the term
itself is somewhat amorphous.327 Many definitions of the best interests
standard have been suggested.328 Clearly, there is a need for specific
guidelines outlining what a court must consider in deciding whether sibling
visitation is in the best interests of the child.329
California has statutorily defined factors to be considered by the court
in making custody decisions.330 These factors are also relevant to sibling
visitation cases. Modifying the terminology of the custody factors for this
purpose, the resulting factors for consideration of a child’s best interest in
322. See Brief of Amicus Curiae, supra note 223, at 4-5. “The Legislature has declared
that sibling association is a critically important state interest….” Id. at 5.
323. The Herbst opinion acknowledges the state’s intent to preserve sibling contact
through Welfare and Institutions Code sections 366.26 and 16002, but dismisses the
applicability to this case of the legislative intent behind those statutes. See Herbst,
125 Cal. Rptr. 2d at 841.
324. See supra Part IV.A.
325. See supra Part IV.B.
326. The court never reached this issue because it found the statute upon which the
visitation claim was based unconstitutional. See Herbst, 125 Cal. Rptr. 2d at 841.
327. See Harvey R. Sorkow, Best Interests of the Child: By Whose Definition?, 18 PEPP. L.
REV. 383, 383 (1991).
328. Id. at 384-85 (discussing several definitions of the best interests standard given by
witnesses in the case of In re Baby M., 525 A.2d 1128 (N.J. Super. Ct. Ch. Div.
1987)); see also In re Baby M., 525 A.2d at 1167.
329. See Williams, supra note 6, at 293; see generally Sorkow, supra note 327.
330. See CAL. FAM. CODE § 3011 (West 2004).
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sibling visitation cases are: (1) “[t]he health, safety, and welfare of the
child”; (2) any history of abuse by the person seeking visitation; (3) “[a]ny
history of [substance] abuse by” the person seeking visitation; and (4)
“[t]he nature and amount of contact” between the siblings.331
These factors can now be applied to the facts of Herbst. The first
factor is the health, safety and welfare of the child. There is no indication
from the facts of the case that Jake’s safety would be at risk from visiting
with his sister. As previously discussed, the sibling relationship can have a
significant positive impact on the lives of the siblings, particularly in times
of stress.332 Jeana and Jake’s father has passed away and Jeana is Jake’s
closest paternal relative.333 Maintaining this relationship will surely benefit
Jake’s mental health and welfare,334 and possibly his physical health as
well, since Jeana may have knowledge of relevant medical history from
their father’s family. The first element, then, would weigh in favor of
visitation.
The second and third factors—a history of abuse or substance abuse
in the party seeking visitation—can be assessed together. Although these
issues are not specifically addressed by the court, it is logical to assume
that if any history of violence or substance abuse was present, it would
have been raised by the respondent, Charlene Swan. Since there is no
mention of any such history,335 it is safe to assume that none exists.
Therefore, at a minimum, these elements of the standard do not weigh
against granting the request for visitation.
The final factor—the nature and amount of contact between the
siblings—is a difficult one to address because the siblings were not able to
maintain contact for a period of time.336 By the time this case reached the
appellate court, Jeana and Jake’s father had been deceased for several
years337 and Jake’s mother had not been willing to offer Jeana any
331. Id. § 3011 (a)-(d). The court may require independent corroboration of any alleged
abuse or substance abuse. Id. § 3011(b), (d); see also Williams, supra note 6, at 297.
Joel V. Williams has compiled a list of factors, based on the statutes of several states,
that courts should consider when applying the best interests standard to sibling
visitation cases. See id. at 296-97.
332. See supra Part I.A.
333. Herbst v. Swan, 125 Cal. Rptr. 2d 836, 837 (Ct. App. 2 Dist. 2002).
334. See supra notes 17-23 and accompanying text (explaining the psychological benefits
that stem from the sibling relationship).
335. See Herbst, 125 Cal. Rptr. 2d at 837 (making no mention of any allegations of
violence or substance abuse on the part of Jeana Herbst).
336. See id. “[A]fter their father’s death, respondent denied [Jeana] all contact with Jake.”
Id.
337. See id. Ralph Herbst died on July 12, 1999 and Jeana Herbst filed her Petition for
Visitation on December 12, 2000. Id. The appellate court’s opinion was not filed until
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visitation during that period.338 Nevertheless, there is evidence to support
that there was an existing relationship between the siblings.339 A court
cannot ignore the fact that any interruption in their relationship was caused
by the unwillingness of Charlene Swan to allow Jeana to visit with Jake.
Taking this fact into consideration, along with the fact that Jeana and Jake
had a solid foundation for a relationship, this element of the best interests
standard weighs in favor of granting visitation.
The legislatively-defined elements to be applied when determining
the best interests of a child for custody purposes340 are easily applicable to
sibling visitation cases.341 The Herbst court, finding Family Code section
3102 unconstitutional, never had occasion to apply the best interests
standard to Jake Herbst. Yet, from the preceding discussion it is evident
that applying the best interests standard to the facts of Herbst v. Swan
would have supported an order granting Jeana Herbst’s request for sibling
visitation.
CONCLUSION
The Herbst v. Swan decision appears to have been wrongly decided,
based on the faulty application of the Supreme Court’s Troxel holding.
Troxel was never intended to apply to the context of sibling visitation,
particularly in a case such as Herbst, which denied the visitation order,
resulting in the total loss of contact between the siblings.
The Herbst court’s decision, which purported to protect constitutional
rights, actually served to weaken the constitutional rights of a protected
group of citizens—siblings. Courts cannot arbitrarily choose to protect one
fundamental interest at the expense of another. When the fundamental
rights of two parties collide, the court should apply a balancing test. In
sibling visitation cases, which involve children, the appropriate balance can
be struck by applying the best interests of the child standard.
The importance of sibling relationships cannot be understated.
Clearly, states have an interest in preserving this relationship. The
California Legislature has stated its intention to preserve the sibling bond
through the provisions of numerous statutes that are designed to maintain
the close relationships that exist among families in general, and between
siblings in particular.
October 3, 2002. Id. at 836.
338. See Respondent’s Brief at 2, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2 Dist.
2002) (No. B152450).
339. See Herbst, 125 Cal. Rptr. 2d at 837.
340. CAL. FAM. CODE § 3011 (West 2004).
341. See Appellant’s Reply Brief at 3-4, Herbst v. Swan, 125 Cal. Rptr. 2d 836 (Ct. App. 2
Dist. 2002) (No. B152450).
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Until the United States Supreme Court formally recognizes the
fundamental rights of siblings—separate and apart from the rights of
parents—the result of Herbst v. Swan is likely to be repeated in other
courtrooms around the country. In this case, it was young Jake Herbst who
was the victim—he was denied the benefit of a relationship with his own
sister. The Herbst court should not have held that the California visitation
statute was unconstitutional. This decision protects the fundamental rights
of parents, but does so at the intolerably high expense of the fundamental
rights of their children.
Angela Ferraris