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Should a Rapist Have the Right to Custody of a Child Conceived by Rape?

Should a rapist have the right to custody of a child who was conceived by rape?  The United States Senate recently answered—unanimously—“No!” to that very question when it passed an amendment to human trafficking legislation that would give states a strong incentive to ban rapists from having parental rights regarding a resulting child.

The Rape Survivor Child Custody Act passed the Senate 99-0 and targets a pressing problem: in 40 out of 50 states, a woman cannot sue to terminate the parental rights of her rapist. In those states, a rapist can sue for custody of a child conceived by the rape.  That means that a woman could be forced to face her rapist “every other weekend” to exchange their child—an outcome that can have devastating traumatic results.

The Act itself does not explicitly ban rapists from having parental rights with the child, but it does give states a good reason to adopt such laws.  If a state passes a law that that “allows the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child,” the State can qualify for a two-year increase of 10% of the grant funding it receives through the STOP Violence Against Women Program of the Omnibus Crime Control and Safe Streets Act or the Sexual Assault Services Program of the Violence Against Women Act.

Although similar legislation has been offered in the past, Samantha Bee of the The Daily Show drew attention to this issue earlier in April with a segment titled “Parenting with the Enemy.”  The segment persuasively presents the negative impact from the absence of parental termination laws regarding rapists  The significant financial incentive from the federal government, along with the increased public attention on rape as a societal problem, should encourage many of those states who have not done so to adopt such laws.

But does this make an individual susceptible to having their parental rights terminated based on a dubious claim of rape?  After all, rape is notoriously difficult to prosecute and prove in court.  The Act addresses this concern by imposing a heightened standard that must be met before a judge can grant such a termination: a rape victim must show “clear and convincing evidence” that the child was conceived by rape.  Importantly, this standard is stricter than in most civil cases, but is lower than the “beyond a reasonable doubt” standard for criminal cases.  For over thirty years the U.S. Supreme Court has recognized that the “clear and convincing evidence” standard satisfies due process when it comes to terminating parental rights, so the Act appears to be on strong legal footing in encouraging  states to strike this balance regarding the amount of proof required to justify termination of a rapist’s parental rights.

The Act is expected to next pass the U.S. House of Representatives, thus sending it to President Obama’s desk to become law.  At that point, it will be up to each individual state to decide whether it should pass a law to allow rape victims to terminate the parental rights of their assailant.

If you have any questions regarding termination of parental rights in Texas, you should contact one of the experienced attorneys at McClure Law Group at (214) 692-8200.