Metropolitan News-Enterprise


Friday, October 4, 2002


Page 3


Court of Appeal Rules State’s Sibling Visitation Law Unconstitutional


By a MetNews Staff Writer


A state law allowing a court to grant visitation rights to a sibling after a parent has died is unconstitutional to the extent it interferes with a custodial parent’s control of the minor, the Court of Appeal for this district ruled yesterday.

In an opinion by Justice J. Gary Hastings, Div. Four affirmed Los Angeles Superior Court Commissioner James B. Endman’s dismissal of a local woman’s petition for the right to visit with her 6-year-old half-brother.

Jeana Herbst is the adult daughter of Ralph Herbst, who died in July 1999. Eighteen months after his death, she asked the Superior Court to order Jake’s mother, Charlene Swan, to allow her to visit Jake.

Herbst alleged that she and Jake visited regularly before their father died, but that Swan had cut off all contact between the two. Swan responded that there had been “virtually no contact” between Jake and his half-sister before their father died, that Herbst had not asked for visitation prior to filing her petition, that she had “taken Jake’s dog and bird and refused to return them,” and that her request was designed to gain some type of “strategic advantage” with respect to a trust Ralph Herbst had created for his children.

Herbst based her petition on Family Code Sec. 3102,  providing in part that “[i]f either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child…upon a finding that the visitation would be in the best interest of the minor child.”

Endman agreed with Swan’s attorneys, who argued that the law unconstitutionally infringed upon Swan’s fundamental liberty interest to raise her child as she saw fit, citing Troxel v. Granville (2000) 530 U.S. 57. That case overturned a state judge’s ruling, based on a Washington statute, granting specified visitation rights to paternal grandparents over the objection of the children’s mother, who had custody.

Hastings agreed that Troxell was controlling, rejecting Herbst’s reliance on a New Jersey case holding that siblings have a fundamental interest in preserving the “strong…and…irreplaceable” bonds between them.

That case, the justice noted, was decided before Troxel.

“Whatever ‘inherent and inalienable’ right a sibling may have under New Jersey law, it appears that the fundamental liberty interest of a parent trumps that right absent a compelling state interest,” Hastings wrote.

Such a compelling interest may exist, for example, when children are removed from parental custody and the state seeks to keep the sibling relationship intact as they move through the dependency system, the justice said. But Herbst had suggested no facts in her petition suggesting that her situation was similarly compelling, he said.

Attorneys on appeal were James J. Armstrong and Laurie Armstrong of Armstrong & Armstrong for Herbst and Gary W. Kearney for Swan.

The case is Herbst v. Swan, 02 S.O.S. 5181.


Copyright 2002, Metropolitan News Company