Every now and then a custody case comes along where a parent proposes to separate siblings. The reasons that I have heard put forth for such an idea invariably are lame and have more to do with the parents’ problems rather than what is best for their children. Not surprisingly, as a general rule, courts are reluctant to separate siblings and will not do so unless there is an “overwhelming need” to do so.
The New York Court of Appeals has repeatedly recognized the importance of sibling relationships. According to the Court of Appeals “Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.” The Court of Appeals later elaborated on this, holding that “the separation of siblings…is to be frowned upon” and that “Close familial relationships are much to be encouraged” because “By building identity, countering feelings of isolation, and encouraging healthy adjustments to and with others, they provide an important additional dimension to long-term stability.”
This rule has evolved and recent cases have held that, given the dynamics of modern family life, this rule is not absolute and need not be applied where the proof indicates that the best interest of each child lies with a different parent. Still, the party proposing the separation of siblings has the burden of proving that the best interest of each child is with a different parent. This is quite a heavy burden since courts still frown upon splitting siblings and absent an “overwhelming need to do otherwise” siblings will be kept together. So strong is this policy of keeping siblings together that a court can reunite siblings even if their parents originally split them by agreement.
Also, when presented with a case where a parent can control one child, but he or she cannot control the other child, courts will award custody of both children to the parent who can control both of them. For example, in a case where a mother could not control one of her sons and her relationship with him had turned violent this was not evidence that the best interests of the children each were with a different parent. The Appellate Division upheld the award of both children to the father who could better care for both children.
Accordingly, there are a few cases where courts will split siblings. Parents who are inclined to seek split custody of their children really should take a very hard look at what they are doing that makes them want to split up their children. After all, parents divorce each other, siblings do not.
In any event, if parents are presented with the possibility of children being split they should consult with an experienced domestic relations attorney who is familiar with complex custody cases and familiar with the courts in the county in which the children reside.