When convicted kidnapper and rapist Ariel Castro pleaded guilty earlier this summer to hundreds of crimes involving three victims over the span of a decade, he asked the judge that he be allowed to have visitation with a child he fathered with one of his victims.
While such a request may seem outlandish, the fact is that in Ohio, just as in Arizona and 29 other states, convicted rapists are permitted to sue for custody and visitation rights to the victim’s child. The Rape Abuse & Incest National Network (RAINN) reports that 1 out of every 6 women in the U.S. will become a victim of rape at some point in her life. A study by the American Journal of Obstetrics and Gynecology estimates that annually, some 25,00 to 32,000 pregnancies are the result of rape. Even by low estimates, about one-third of those women who were raped and became pregnant as a result kept their child.
Our Mesa child custody attorneys understand that new legislation was introduced in late July that would provide monetary legal incentives for victims who wish to fight or terminate the custody rights of their attackers.
H.R. 2772, sponsored by Rep. Debbie Wasserman Schultz (D-FL), is also called the Rape Survivor Child Custody Act. The measure purports that men who father children through the act of rape should be barred from visiting or having custody of those children.
Schultz cited the Castro case as a clear example of why such a measure is necessary.
Few would disagree, particularly in cases like the Castro crime, where the evidence was overwhelming and a conviction was forthcoming. A rapist who pursues parental or custody rights would in effect force the survivor to have continued interactions with him, which can have a detrimental effect not only on the mother, but the child as well.
Where this may get a bit tricky is that rape is a vastly under-reported crime. Even those that are reported don’t always result in a conviction. But should family courts simply rely on the word of the alleged victim? The bill cites the U.S. Supreme Court case of Santosky v. Kramer, which holds that the process for terminating or restricting parental rights. This decision held that the standard was establishment of “clear and convincing evidence” that would satisfy due process for such allegations.
In other words, a criminal conviction would certainly help, but it wouldn’t be necessary so long as the victim could present clear and convincing evidence of how the child was conceived.
As it now stands, only six states have statutes that specifically allow rape survivors to petition the court for termination of parental rights of a rapist based on the clear and convincing evidence standard.
Still, even if a woman weren’t able to prove that the child in question was the result of rape, judges do have the power to prevent fathers who are unfit from seeing their children. Our attorneys are committed to helping you fight for the best interests of both you and your child.
Contact our Mesa family law attorneys at (480) 833-1113.
Child custody rights for rapists? Most states have them. Aug. 1, 2013, By Ed Payne and Ted Rowlands, CNN