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Siblings in Law

PDF · Jill Elaine Hasday · Apr-27-2012 · 65 Vand. L. Rev. 897 (2012)

Legal regulation of the family focuses on two canonical relationships: marriage and parenthood. Courts, legislatures, and scholars routinely take family law’s concentration on just two family ties to be so commonsensical as to require no explicit discussion or explanation. Yet marriage and parenthood are not the only family relationships that can be central to family life. Family law’s reflexive orientation around marriage and parenthood diverts attention and scrutiny from considering how the law should regulate and protect other family ties. For instance, the sibling relationship is a crucial, yet noncanonical family tie. Family law views children almost exclusively through the lens of children’s relationships with their parents, rather than the lens of children’s relationships with their siblings. The law offers siblings only modest and sporadic protection, too often permitting adoption and parental divorce or death to separate siblings and sometimes leave them with no right to contact each other or even learn of each other’s existence. But siblings can be vital sources of support, love, nurturing, and stability for children, and family law could and should do much more to safeguard sibling ties when they are threatened. This Essay uses the example of sibling relationships, which have received remarkably little legal attention, to explore the law’s treatment of noncanonical family relationships and to consider some of the reform possibilities that emerge when we free ourselves from the assumption that family law should focus narrowly on marriage and parenthood.



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