In a recent child custody case, the trial court separated siblings due to their “influence” on each other, and awarded one child to each parent. The father believed one son, who was autistic, was holding back the other son’s development. The trial court agreed by reasoning it “had a kind of hunch that maybe (modeling behavior) was going on,” and awarded the son who was not autistic to the father. Marriage of Health, C.A. 2nd, No. B171500, Sept.. 15, 2004.
The appellate court reversed the decision for two reasons: the state’s public policy strongly favors preserving the sibling bonds whenever possible, and that disability, mental or physical, is never to be presumed as a barrier to individual rights. The lower court was ordered to analyze the actual impact of the autistic’s son’s condition on his brother, and to analyze the impact of separation on both children.
In this case, when mother and father separated, the young boys remained with their mother. Temporary orders gave mother primary physical custody. When the mother relocated, the father petitioned for sole legal and physical custody. The temporary orders remained in effect as the parents agreed not to separate the children. A few months later the father’s position changed and he felt the children should be separated because one son was holding back the other’s development. No evidence was presented concerning the boys actual relationship to each other.
On reversal, the appellate court opined that the family court failed to consider the bond between the brothers, the opportunity to share each other’s live, and failed to consider the detriment of their separation. Also, the court pointed out that the bond between parent’s with disabilities and their child cannot be severed, so too should the bond between siblings not be severed.
“Children are not community property to be divided equally for the benefit of their parents . . . The children have not chosen to divorce each other. At a minimum, the children have a right to the society and companionship of their siblings.” Marriage of Williams (2001) 88 cal. App. 4th 814