Do you remember the movie “The Parent Trap”? It’s the one where the parents divorce, and they split their twin daughters, with one going to mom and the other going to dad.
In real life, it’s extremely rare for this type of situation to happen, and even more rare for the courts to agree to it. It all comes back to “Best Interest of the Children.” It’s the public policy of the State of California for both parents to have frequent and continuing contact with their children, so long as it is in the best interests of the children. California Family Code Section 3020. There is a whole list of circumstances that the Courts must look at in order to determine what is or is not in a child’s best interest (California Family Code Section 3011), but it’s fairly common-sense: the child’s health and safety, physical or mental abuse by a parent, drug or alcohol abuse by a parent, the nature and amount of the parent’s relationship with a child, and literally any other factor that has an effect on the child or children
Take for example a real case example of this. In that case, Mom and Dad have four children, and they have been divorced for a while. They’re both good parents, and they have a custody schedule sharing the kids. Mom then meets a new guy, and they get married. Problem is that new husband lives in Utah. Obviously, Mom wants to move to Utah with her new husband, and wants to bring the kids with her. Dad obviously doesn’t want kids to move out of state.
Though neither parent wanted it, that Court decided that oldest child should move with Mom to Utah, because oldest child was bonded with Mom, and that youngest child should move to Utah because that child was so young, and the middle two children would stay with Dad.
Neither parent liked this ruling, so they filed an appeal. The Appellate Court found that this was not in the best interest of the children and reversed the Court’s decision of splitting up the children. The Court said they would require a “compelling circumstance” to split the siblings. Mom moving away when both parents were good parents, both with substantial custodial time, was not enough. Marriage of Williams (2001) 88 CA4th 808.
In another divorce case, the Appellate Court found an even more extreme case did not have the “compelling circumstance” needed to split the siblings. In this very sad case, a car accident left one child deceased, and another child severely disabled and needing constant care. Because of this accident, Mom and Dad split up and afterwards could not parent together at all. This was even more tragic because Mom and Dad had two other children together.
Again, though the parents in that case did not ask, the Court ordered that Mom should have sole legal and physical custody of their disabled child. But because that disabled child needed so much care, the Court then ordered that Dad should have sole legal and physical custody of the two other children.
Again, this case was appealed. The Appellate Court again found that even in this tragedy that there was no “compelling circumstance” that allowed for splitting up siblings. The Appellate Court said that there was in fact a strong bond between all three siblings, and that the disabled child’s disability was not a compelling circumstance on its own. In re Marriage of McKean G055601.
Therefore, anyone seeking to separate children in a divorce or other family law action, should be aware that it is very difficult to do so.