Document Type

Article

Publication Date

Winter 2015

Abstract

This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue in Troxel v. Granville – that is, “the interest of parents in the care, custody, and control of their children.”

In the landmark Troxel v. Granville case, the United States Supreme Court struck down a Washington state third party visitation statute allowing any person to petition for visitation at any time as “breathtakingly broad,” but failed to articulate a clear standard under which third parties, including siblings, could petition for visitation with each other, if at all. Without such a provision, however, thousands of children face the real possibility that upon adoption their adoptive parents may no longer allow them to continue a relationship with their biological siblings, often causing tremendous hardship to the child. Although other scholarship has focused and critiqued Troxel’s failure to articulate a clear standard for third party visitation, this article focuses much more on the social science and psychological research related to the attachments children form with their biological siblings and the deep-rooted results of having those attachments broken, often permanently, when one of them is adopted. Set against this background, it serves to highlight the urgency behind ensuring that states provide an avenue for siblings to avoid the severing of those attachment bonds and to petition for legal visitation which would allow that bond to continue.

Thus, what is needed is a provision that grants standing to siblings-of-origin to petition for visitation once they face the potential of being “separated at adoption.” In reviewing the sibling visitation petition, in recognition of the adoptive parent’s Constitutional rights as a parent, the court would employ a rebuttable presumption that the adoptive parent’s wishes are in the “best interests of the child.” In assessing, however, whether the petitioner has rebutted the presumption, the court would be required to make specific findings of fact as to the psychological harm the child would likely suffer should visitation be denied and all contact with the biological sibling cut off. By requiring the court to specifically focus on this potential harm, rather than to merely engage in a generalized “best interest of the child” analysis, the child’s interest in not having their relationship with their sibling broken will be protected. Additionally, states should provide a construct whereby, as part of the adoption process, parties can enter into agreements for post-adoption contact that will be enforceable. Because such agreements are voluntarily entered into, it is important that states create vehicles to encourage adoptive parents to allow these biological sibling relationships to continue.

Publication Citation

19 U.C. Davis J. Juv. L. & Pol'y 84 (2015).

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