New York Child Custody and Visitation Law: Sibling Visitation

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Siblings have a statutory right to visitation with each other.  This is true whether the relationship be of full-blood siblings or half-blood siblings.  There is a two-part analysis for evaluating sibling visitation.  First, standing – or the right to be heard – has to be established.  Second, the court must determine whether the visitation is in the best interest of the child(ren).  See Fitzpatrick v. Youngs, 186 Misc.2d 344, 346 (2000).

DRL § 71 states that “where circumstances show that conditions exist in which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf, whether by half or whole blood, may apply to the supreme court by commencing a special proceeding for visitation rights for such brother or sister in respect to such child.”  The issue of standing was central in the case of Noonan v. Noonan, 145 Misc.2d 638 (1989).  In that case, a mother petitioned on behalf of her three children for visitation with the children of their father’s previous marriage.  The court held that the half-blood siblings had standing to seek visitation, but that the petitioner’s daughter from a previous marriage (with no blood relation to the children at issue) did not have standing.  Thus, visitation was awarded to only the two half-blood siblings.

Once standing is established, the court considers various factors to decide if visitation is in the best interest of the child and, if so, under what conditions.  See E.S. v. P.D., 8 N.Y.3d 150 (2007).  It is unclear whether that standard applies solely to the child(ren) with whom visitation is sought, but case law gives preference to the best interest of them over the siblings seeking visitation.  The best interest standard is at the discretion of the court.  For example, if the best interest of the child(ren) to be visited is sacrificed by serving the best interest of the children seeking visitation, the court might question the validity of the petition in the first place.  Factors given the most weight by the court include prior relationships with siblings, the reason visitation with the siblings stopped after a divorce, the future benefit of having a relationship with the siblings, the opinion and recommendation of the attorneys for the children, and the preferences of the children expressed during in camera interview.  Whether the children had a relationship with each other and how strong that relationship was before the parents broke up is a huge consideration.  Where there is no familial bond among half-siblings, visitation is usually denied, as it was in the case of  In re Justin H., 215 A.D.2d 180 (1995).

In Isabel R. v. Meghan Mc., 23 Misc. 3d 1102(A) (2009), visitation was granted with a specific visitation schedule.  In that case, the mother, on behalf of her children, M. and J., petitioned the court for visitation with their half-sister, O., respondent’s child.  Ruben R. was the father of all three children and not a party to the action.  While Ruben and respondent were married, M. and J. would frequently go over to their father and respondent’s home to spend time with their younger sister.  The children frequently had sleep-overs, played at each other’s homes, and referred to each other as “brother” and “sister.”  O. was very familiar with petitioner and petitioner even babysat for O. on occasion.  When Ruben and respondent ended their marriage, petitioner tried to work out a schedule with respondent for the children to continue their relationship.  Respondent subsequently re-married and had another child.  She was not interested in O. having a relationship with M. and J. and wanted O. to be fully immersed in her new family with respondent’s new husband and baby.  Respondent was also concerned that if O. were to see M. and J., petitioner might let them see the father as well, who was previously denied visitation with O.  After in camera interviews with the children who expressed their desire to maintain a relationship with each other and consulting with the attorneys for the children, the court determined that the children might have visitation with their sister, O., and set forth a detailed schedule of visitation.

This is an excerpt from my new book “Onward and Upward:  Guide for Getting Through New York Divorce & Family Law Issues” available on Amazon, Kindle and iBooks. This is an except from the chapter I wrote with the talented Bonnie Mohr.  I also wrote the Chapter on Mediation, which also discusses mediation on disputes like this.  Not only am I a family law litigator, but I am also a trained mediator for divorce, child custody and visitation disputes, and commercial mediation. The book is chalk full of great advice on a myriad of family law issues ranging from prenups, child custody disputes, and divorce/annulments.  The book’s special sauce is that it has over 48 authors, including many nonlawyer authors, writing on both legal and nonlegal topics.  More info on the book can be found here.

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