Posted on 05/03/2007 7:27:17 PM PDT by paltz
Imagine this: You are a woman who has been raped (forcible rape, date rape, statutory rape, whatever), and you become pregnant as a result. You decide for whatever reason, be it religious or other, that you wish to keep the baby. After the baby is born, the rapist petitions the court for visitation rights with the child. Or the rapist's parents petition the court for grandparent visitation rights. You want absolutely nothing to do with the rapist or his family. Can you exclude the biological father and/or his family from asserting custody/visitation rights with this child? Or imagine that you wish to give the child up for adoption. Can the biological father withhold consent to adoption as an unwed biological parent?
The common sense answer, at least to me, would be that rapists do not have parental rights, or if the law presumes that they do, then the law would equally presume that those rights should be terminated without the consent of the rapist. A number of states agree with this conclusion, but a number of states have failed to address the question, leaving open the possibility of rapists asserting parental rights.
The latest case to discuss this issue is Shepherd v. Clemens, 752 A.2d 533 (Del. 2000). There, the court concluded that when a child is conceived and born as the result of an unlawful sexual intercourse as defined in the code, the biological father shall not be permitted visitation. This does not violate constitutional principles. “No court has held that the mere fact of biological fatherhood that was the result of a conception during a criminal act and that is unaccompanied by a relationship with the child, creates an interest that the United States Constitution protects in the name of liberty.” See Lehr v. Robertson, 463 U.S. 248, 259-62 (1983). See generally Deborah L. Forman, Unwed Fathers and Adoption: A Theoretical Analysis in Context, 72 Texas L.Rev. 967 (1994).
Other states have similar statutory provisions. Alaska Stat. § 25.23.180 (1999) court may terminate parental relationship if child was conceived as a result of sexual assault, and termination is in the best interests of the child); Cal. Welf. & Inst. Code § 361.5 (West 1999) (reunification not provided to parent of child conceived as result of sexual assault); Conn. Gen. Stat. § 45a-717 (1999) (court may terminate parental rights of parent convicted of a sexual assault resulting in the conception of a child, except in certain cases of statutory rape); Idaho Code § 16-2005 (1999) (court may grant termination of parental rights as to a parent who conceived a child as a result of rape); 750 Ill. Comp. Stat. Ann. 50/8 (West 1999) (father's consent to adoption not required if he fathered child as result of criminal sexual abuse or assault); Ind. Code § 31-19-9-8 (1999) (notice to father of adoption proceedings not required if child conceived as result of rape, incest, or sexual misconduct with a minor); Me. Rev. Stat. Ann. Tit. 19-A, § 1658 (West 1999) (court may terminate parental rights of person who conceived child as result of crime involving sexual intercourse, unless court informed that the act was consensual); Mo. Rev. Stat. § 211.447 (1999) (biological father's guilty plea or conviction of forcible rape of the birth mother is conclusive evidence to termination his parental rights); Nev. Rev. Stat. § 125c.210 (1999) (father has no right of custody or visitation if child conceived as result of sexual assault unless consented to by mother and is in the best interest of the child); N.J. Stat. Ann. § 9:2-4.1 (West 1999) (see infra text accompanying this note); N.M. Stat. Ann. § 32A-5-19 (Michie 1999); N.Y. Dom. Rel. Law § 111-a (McKinney 1999); Okla. Stat. Ann. Tit. 10, § 7006-1.1 (1999) (stating that the court may terminate parental rights if the child was conceived as a result of rape); 23 Pa. Cons. Stat. Ann. § 2511 (West 1999) (father's parental rights may be terminated if child conceived as a result of rape or incest); S.C. Code Ann. § 20-7-1734 (Law Co-op. 1999) (father not entitled to notice of adoption proceedings if child conceived as result of criminal sexual misconduct); Wis. Stat. §§ 48.42, 48.415 (1999) (§ 48.42 stating that no notice is required to the father in a termination of parental rights case when the child has been conceived as a result of sexual assault or rape; § 48.415 stating that parenthood as a result of sexual assault or rape is grounds for involuntary termination of parental rights).
The Uniform Putative and Unknown Fathers Act of 1988 also addresses this issue. Unif. Putative and Unknown Fathers Act of 1988 § 5, 9B U.L.A. 91 (West Supp. 1999).
Those states that have not addressed the issue should do so, for to do so would be to guard the best interests of the child. A man who has raped a woman simply cannot be said to have established requisite parental rights necessary to accord him custody/visitation rights.
I think this is a solution looking for a problem.
If a child born in America can be called a US citizen even if his parents illegally came here, then a rapist can claim his child even though he illegally impregnated the mother.
The law is on the side of criminals in America these days.
The law is a ass.
Well, yes. But it's an excellent argument for hanging rapists, which, if I recall correctly, was the traditional formula anyway.
I was wondering what the point of all that verbiage was and you nailed it.
Well, the downside is that they tended to eliminate witnesses when rape was a capital offense.
And any state will do so if the issue is raised. In all 50 states termination of parental rights may be based on a variety of crimes of violence committed against the other parent. I think rape qualifies < /sarcasm >.
Absent an actual criminal rape conviction against the biological “father”, how could the mother prove an allegation of rape, perhaps years later, perhaps posthumously, and provide the court reason and enough proof to deny paternal rights to the biological "father"?
Some women open the door for claims of visitation by trying to get child support. Others go in for public aide & are told they are ineligible unless they name the father.
Trying to claim rape & press charges months after the act will generally result in no conviction. Date rape cases are difficult to get a conviction, even in cases where the rape is reported right away.
Meanwhile, laws trying to limit visitation when the child is the result of rape increase false claims of rape.
It’s a difficult situation.
The Bard was right - “ - kill all the lawyers.”
Wasn't it Clements who said that so doing might not help, but it might, and it would be so much fun. Nowadays, some literalist lawyer would consider Clements an advocate of ‘hate crime’.
Think I’m wrong? Consider what happened to many of Clements’ other books.
“I think this is a solution looking for a problem.”
Perhaps it is underemployed lawyers looking for cases? And their ‘fees’, of course.
You know, I was thinking that last night when FoxNews was doing a show about child predators. Seems that some communities want them to have day-glo green license tags, so everyone would know. Naturally, the comparison was made to the big red "A for adulterer" across Hester Prynne's chest in colonial times in the novel The Scarlet Letter, as well as all kinds of other liberal hair-splitting about whether it would infringe unduly on the sex criminal's "rights." Couldn't help but think how much simpler it would be if any piece of crap who sexually abused a child in the first degree never got another chance to handle anybody's weenie, including his own.
That is the reason for the legal maxim that you cannot "sleep on your rights" - assert your claim promptly, or you lose it. If it's important enough to affect somebody else's parental rights, it's important enough to make an immediate outcry. That's in fact an important element of proof in a criminal prosecution for rape.
The term "rape" has been muddied by feminists and opportunists who insist that it includes morning-after regrets and second thoughts, even second thoughts weeks, months, or years after the event.
Allowing delayed or posthumous accusations of rape will simply open up another opportunity for the mother to take advantage of the father of the child.
Err...
It seems you did not understand my position.
It is actually extremely difficult to sever paternal rights, in most states.
Even in the case of pre-birth abandonment, one must be able to prove intentional abandonment, or “sperm donor daddy” can show up whenever he decides he is “ready” to be a “father”.
That could be anywhere from 1-18 years later.
Generally this situation will occur when “daddy dearest” senses an opportunity to obtain funds from the child, the mother, or the executor of the estate of the mother.
Obviously, you and I approach this topic from vastly different perspectives.
But I am an attorney, and I have handled a number of these cases, and Georgia law is very clear.
The bio-dad cannot just "show up" as you put it and put in a claim. He has merely what the GA courts call an "opportunity interest", which he can lose if he fails to follow up on it. The landmark case involved a baby that was put up for adoption by the mother after the father abandoned her. The only way a bio-dad can put in a claim at a late date is if he can show that the mother defrauded him by concealing her pregnancy and that he had no reason to know she was pregnant. And the burden's on him to prove that. It's not easy - since he knows he had intercourse with her, after all. Ghrist v. Fricks, Grice v. Detwiler, and LaBrec v. Davis are the leading cases.
A lot of parental rights get terminated around here -- there's a whole Code chapter on how and why. Abandonment with refusal to support for a year is grounds, IIRC.
Florida law is different.
Or was, 13 years ago, when I had reason to deal with the matter.
The money I had to pay lawyers and the hoops I had to jump through to protect my minor child’s legal guardianship,insurance benefits, and overall status, in the event of my untimely death, were daunting, to say the least.
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