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O Sister, Where Art Thou

Three Sisters on Wall

In March of 2014, the Court of Appeals considered whether an adult sibling seeking visitation rights with her minor siblings, contrary to their parents’ wishes, should be held to the same standard as third parties seeking visitation.[i] The factual circumstances of In re: Victoria C. presented a ripe opportunity for the Court of Appeals of Maryland to produce a more forgiving standard that recognized the importance of familial relationships other than parent-child. The Court of Appeals, however, declined to take that route.

In an earlier decision, Koshko v. Haining, the Court of Appeals recognized that parents of minor children have a fundamental right to make decisions regarding the upbringing of their children, including third parties seeking visitation.[ii] Consequently, third parties seeking visitation contrary to the parents’ wishes must first prove “exceptional circumstances” or show parental unfitness.[iii] In a 5-2 opinion, the Court of Appeals in Victoria C. strengthened the presumption afforded parental decision-making and extended its holding in Koshko to include siblings as “third parties.”[iv]

If any case were ripe for an exception to the third party standard, it was Victoria C. In 2009, the Department of Social Services investigated an allegation of abuse against George C., Victoria’s and her half-siblings’ biological father, which resulted in a finding of “indicated.”[v] The Family Law Article defines an “indicated” finding as “a finding of credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.”[vi] Victoria C. was sent to live with her aunt in Texas, who returned her to Maryland one year later.[vii] When George C. refused to allow Victoria back into his home, Victoria became a ward of the State and was declared a Child in Need of Assistance (“CINA”) in 2010.[viii]During her CINA proceedings, Victoria requested visitation rights with her siblings.[ix]

The Circuit Court applied principles from the Court of Special Appeals case In re Tamara R.,[x] and found that Victoria met her burden “as required by Maryland’s common law presumption in favor of siblings seeking visitation of their siblings in contested settings” by proving evidence of “harm to herself resulting from the denial of visitation to her minor siblings.”[xi] After this presumption was rebutted by George C. and his wife, the Circuit Court applied Koshko and inferred that Victoria’s half-siblings may suffer deleterious harm if they were separated from their older half-sister.[xii] Accordingly, the Circuit Court authorized supervised visitation between Victoria and her half-siblings.[xiii] While the Circuit Court had no statutory authority to grant visitation rights to siblings, like that which exists for grandparents, it grounded its authority in common and constitutional law bases derived from Tamara R.[xiv]

The Court of Special Appeals reversed the Circuit Court’s decision, with which the Court of Appeals agreed.[xv] The Court of Appeals concluded that the Circuit Court misapplied the “exceptional circumstances” test because it is limited to the “deleterious effects” on the minor children at issue, not the party petitioning for visitation rights. [xvi] The Court of Appeals remanded the case back to the Circuit Court with instructions to focus its inquiry on Victoria’s minor half-siblings.[xvii] While the Court of Appeals assumed the Circuit Court had a jurisdictional basis for granting visitation rights to siblings existed for purposes ofdeciding the merits, it mandated that the parties explore whether that jurisdiction truly exists upon remand.[xviii]

This holding is notable for several reasons. As Judge Adkins emphasized in her dissent in Victoria C.,[xix] this decision diverges from several jurisdictions which hold the right to associate with one’s sibling is a constitutional right.[xx] Notably, Maryland Court of Special Appeals recognized the importance of the sibling relationship in the case In re Tamara R., where the court observed:

[T]he sibling relationship has been widely recognized as an important one, which
will be given significant consideration and protection by courts in cases involving
the family. Recognizing the value in sibling relationships puts in perspective the
importance of the evidence that [an individual] would be harmed by
the denial of sibling visitation.[xxi]

Instead of following the trend from its sister courts, the Court of Appeals determined that siblings should not be accorded a different standard and overruled Tamara R. to the extent that it was inconsistent with its holding in Victoria C. [xxii]

Moreover, this decision may have far-reaching implications. When faced with Victoria C.’s unique factual circumstances, the Court of Appeals still categorized siblings as “third parties” who must first satisfy Koshko before obtaining visitation rights with minor children contrary to parental consent. Consequently, individuals who leave home because of abuse risk severing ties with any minor siblings who remain should they fail to satisfy Koshko.

Importantly, even if Victoria could prove that exceptional circumstances or parental unfitness exists, the Court of Appeals indicated that the Circuit Court may lack jurisdiction to grant such visitation. Indeed, by overruling Tamara R. to the extent it is inconsistent with Victoria C., the Court of Appeals may have overruled the only jurisdictional bases upon which the Circuit Court could grant visitation rights to siblings.[xxiii] The Court of Appeals’ decision in Victoria C., therefore, may make it impossible for any individual, CINA or otherwise, to maintain relations with his or her minor siblings absent parental consent.

*   *   *

Title: A play on words, this title is derived from Judge Adkins’ use of a similarly-titled journal article in her dissent. See In re Victoria C, 437 Md. 567, 595, 88 A.3d 749, 766 (2014) (citing Paige Ingram Castañeda, Comment, O Brother (Or Sister), Where Art Thou: Sibling Standing in Texas, 55 Baylor L. Rev. 749, 774 (2003)), available at

[i] See id. at 587-88, 88 A.3d at 762.

[ii] See Koshko v. Haining,398 Md. 404, 441, 921 A.2d 171, 192-93 (2007), available at

[iii] See id.

[iv] See In re Victoria C., 437 Md. at 592, 88 A.3d at 764.

[v] See id. at 570, 88 A.3d at 750-51.

[vi] See id. at 570 n.4, 88 A.3d at 750.

[vii] See id. at 570, 88 A.3d at 751.

[viii] See id. at 572, 88 A.3d at 752.

[ix] See id.

[x] In re Tamara R.,136 Md. App. 236, 764 A.2d 844 (2000).

[xi] See id. at 581, 88 A.3d at 757.

[xii] See id.

[xiii] See id. at 581, 88 A.3d at 758.

[xiv] See id. at 587, 88 A.3d at 761.

[xv] See id.

[xvi] See id.

[xvii] See id. at 593, 88 A.3d at 765.

[xviii] See id. at 587, 88 A.3d at 761-62.

[xix] See id. at 595, 88 A.3d at 766-67.

[xx] See, e.g., Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (determining that children have a liberty interest in maintaining familial relationship with siblings); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1005 (N.D. Ill  1989) (holding that “children[’s] relationships with their siblings are the sort of ‘intimate human relationships’ that are afforded ‘a substantial measure of sanctuary from unjustified interference by the State’”) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)); L. v. G., 203 N.J. Super. 385, 398, 497 A.2d 215, 222 (Ch. Div. 1985) (“[T]his Court finds that siblings possess the natural, inherent and inalienable right to visit with each other.”).

[xxi] 136 Md. App. at 259, 764 A.2d at 856.

[xxii] See In re Victoria C., 437 Md. at 593, 88 A.3d at 765.

[xxiii] See id. at 592, 88 A.3d at 764(overruling Tamara R. to the extent that it was inconsistent with Victoria C.).

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