Mediation, Divorce and Splitting Up the Twins


Authored By: Jordan Trager, Esq.

A same-sex male couple has decided to split their infant twin children as part of their custody arrangement. The twins were conceived using two embryos, each with the sperm of one parent and then transferred into a surrogate, thus making them half-sibling twins. In nature, this can also occur as a rare phenomenon known as heteropaternal superfecundation, when a woman releases two eggs in one cycle, and they are fertilized by sperm from separate incidences of intercourse within the window of conception.

The question becomes then: What is of greater importance, the biological bond that each parent has with the children, or keeping the twins together? This involves two important concepts in the law: The rights of parents versus the best interests of the children. Most experts believe that split custody is not usually the best way to go — especially when twins are involved. Ken Neumann, a divorce mediator at the Center for Mediation & Training in New York City, states that as a general rule “this kind of arrangement is not in children’s best interests, because the sibling relationship is seen as an important, supportive relationship” and that the fathers are “looking to redefine [the twins’] relationship.” He is troubled, stating that “When they find out about it, they will always wonder what might have happened had they stayed together.”

The courts generally follow this logic, believing that the best interests of the children and maintaining the sibling relationship are of paramount importance. Instead, the courts may seek to craft some alternative that would permit the children to remain together, while allowing them to have a meaningful relationship with both parents.

Unfortunately, this is not always possible. Both of these two parents have requested this arrangement, although one parent was more enthusiastic than the other. Maintaining the sibling relationship while living several thousand miles away will make such an arrangement extremely difficult to fulfill.

Maybe I can suggest a solution to this dilemma from a story told thousands of years ago. In the story, one mother advised King Solomon that she was willing to give up her child rather than “splitting the baby.” Perhaps the judge in this case should offer both parents the option of keeping the two children together, but only if they both reside with the other parent. The parent who agrees to this arrangement, putting the interests of his two children ahead of his own rights, is clearly the more fit of parent, and he should get to keep both of the babies, subject to the visitation rights of the other parent. That is just my humble suggestion.

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