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Tuesday, November 27, 2012

Sibling Visitation – Does it Exist?

We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide
this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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